Craig O Newman v. William Kren

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
CRAIG O. NEWMAN, UNPUBLISHED
April 25, 2019
Plaintiff-Appellant,
v No. 341823
Wayne Circuit Court
WILLIAM KREN and ELIZABETH KREN, LC No. 16-012746-NO
Defendants-Appellees.
Before: MURRAY, C.J., and SAWYER and REDFORD, JJ.
PER CURIAM.
Plaintiff appeals as of right the order granting summary disposition to defendants in this
premises liability and negligence action.1 We affirm.
On appeal, plaintiff argues that the trial court improperly granted summary disposition to
defendants regarding his claim under MCL 554.139(1)(a) because the open and obvious doctrine
is not a defense to MCL 554.139(1)(a). Additionally, plaintiff argues that the step that allegedly
caused him to fall lacked fitness for the use intended by the parties under MCL 554.139(1)(a).
We disagree.
Defendant moved for summary disposition pursuant to MCR 2.116(C)(10). We review
de novo a trial court’s determination of a motion for summary disposition. Gorman v American
Honda Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d 223 (2013). “Under MCR
2.116(C)(10), the motion tests the factual adequacy of a complaint on the basis of the entire
record, including affidavits, depositions, admissions, or other documentary evidence.” Id.(citation omitted). The trial court examines the evidence in the light most favorable to the
nonmoving party. Id.1
The merits of the plaintiff’s general negligence claim are not before this Court.
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Summary disposition is appropriate . . . if there is no genuine issue regarding any
material fact and the moving party is entitled to judgment as a matter of law. A
genuine issue of material fact exists when the record, giving the benefit of
reasonable doubt to the opposing party, leaves open an issue upon which
reasonable minds might differ. [Id. at 116 (quotation marks and citation
omitted).]
MCL 554.139(1) provides, in relevant part: “In every lease . . . of residential premises,
the lessor . . . covenants: (a) That the premises and all common areas are fit for the use intended
by the parties.” “MCL 554.139 provides a specific protection to lessees . . . of residential
property in addition to any protection provided by the common law.” Allison v AEW Capital
Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008). “If defendants had a duty under MCL
554.139(1)(a)[] . . . then plaintiff could proceed on his second claim even if plaintiff’s negligence
claim was barred by the ‘open and obvious’ danger doctrine.” Id. According to our Supreme
Court in Allison:
Under common-law negligence principles, a premises owner has a duty to
exercise reasonable care to protect an invitee from an unreasonable risk of harm
caused by a dangerous condition on the premises, but not when the condition is
“open and obvious.” However, a defendant cannot use the “open and obvious”
danger doctrine to avoid liability when the defendant has a statutory duty to
maintain the premises in accordance with MCL 554.139(1)(a) or (b). [Id. n 2,
(citations omitted).]
Here, plaintiff argues that the open and obvious doctrine is not a defense to a claim
brought under MCL 554.139(1)(a). Plaintiff is correct and defendants cannot rely on the
doctrine as a defense to plaintiff’s statutory claim. Id.In Allison, our Supreme Court analyzed a lessor’s duty under MCL 554.139(1)(a). The
plaintiff in Allison fell while walking on 1 to 2 inches of snow in the parking lot of his apartment
building. Id. at 423. The plaintiff argued that the parking lot’s condition violated MCL
554.139(1). Id. Under MCL 554.139(1)(a), Allison analyzed whether the parking lot was “fit for
the use intended.” Id. at 429. Our Supreme Court defined “fit” as “adapted or suited;
appropriate [.]” Id. “A parking lot is generally considered suitable for the parking of vehicles as
long as the tenants are able to park their vehicles in the lot and have reasonable access to their
vehicles.” Id. The snow did not make the parking lot unfit. Id. at 429-430. Lessors do not have
to maintain perfect conditions:
The statute does not require a lessor to maintain a lot in an ideal condition or in
the most accessible condition possible, but merely requires the lessor to maintain
it in a condition that renders it fit for use as a parking lot. Mere inconvenience of
access, or the need to remove snow and ice from parked cars, will not defeat the
characterization of a lot as being fit for its intended purposes. [Id. at 430.]
This Court applied the principles articulated in Allison in Hadden v McDermitt
Apartments, LLC, 287 Mich App 124, 130; 782 NW2d 800 (2010), to determine whether a snow
and ice-covered stairway was fit for the use intended, stating:
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While the Allison Court specifically referenced parking lots, the principles
set forth apply to all common areas, including stairways. The primary purpose or
intended use of a stairway is to provide pedestrian access to different levels of a
building or structure. As with a parking lot, MCL 554.139(1)(a) does not require
perfect maintenance of a stairway. The stairway need not be in an ideal condition,
nor in the most accessible condition possible, but, rather, must provide tenants
“reasonable access” to different building levels.
In this case, plaintiff testified during his deposition that he used the steps in question
hundreds of times. Plaintiff’s testimony established that the steps provided reasonable access to
the house, fulfilling the primary purpose or intended use of the stairway. Plaintiff testified that
the bottom step had wear but did not have debris. Plaintiff, however, failed to provide evidence
that the step prevented him reasonable access to enter and exit the house. Mere inconvenience of
access will not defeat the characterization of the step as being fit for its intended purpose.
Allison, 481 Mich at 430-431. Under Allison, defendants did not have to maintain the steps “in
an ideal condition or in the most accessible condition possible.” Id. They only had to maintain
the steps so that they were fit for use as steps. Our Supreme Court defined “fit” as “adapted or
suited,” not perfect. Id. at 429. The record indicates that the step did not deny plaintiff
reasonable access to enter and exit the home. Therefore, plaintiff failed to establish the existence
of a genuine issue of material fact regarding the steps’ fitness for their intended use.
Accordingly, we hold that the trial court properly granted defendants’ motion for summary
disposition.
Affirmed.
/s/ Christopher M. Murray
/s/ David H. Sawyer
/s/ James Robert Redford
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