Timothy Davies v. David Sheets

STATE OF MICHIGAN
COURT OF APPEALS
TIMOTHY DAVIES, UNPUBLISHED
September 8, 2015
Plaintiff-Appellant,
v No. 320765
Ingham Circuit Court
DAVID SHEETS, LC No. 12-001293-NO
Defendant-Appellee.
Before: BORRELLO, P.J., and HOEKSTRA and O’CONNELL, JJ.
PER CURIAM.
Plaintiff, Timothy Davies, appeals as of right the trial court’s order granting summary
disposition under MCR 2.116(C)(10) (no genuine issue of material fact). Davies brought this
action against his landlord, David Sheets, after his back patio collapsed while he was standing on
it and caused him to sustain injuries. We affirm.
I. FACTUAL BACKGROUND
During the term of Davies’s lease of a residential property from Sheets, the front yard
required extensive drain repairs. Davies testified at his deposition that he informed Sheets that a
significant portion of the front yard was damaged and concrete was cracked around the front of
the house and sidewalk. At around 3:00 a.m. on March 19, 2012, Davies let his dogs into the
back yard and was standing on the corner of the back patio when it cracked. Davies fell and
sustained injuries.
Sheets moved for summary disposition under MCR 2.116(C)(10), alleging that he was
only liable for defects that he knew or should have known about. Sheets contended that he did
not have constructive knowledge of the defect that caused the back patio to collapse because
there was no evidence that he would have noticed damage to the patio on a casual inspection.
The trial court agreed, concluding that and that Davies did not present evidence to show that a
casual inspection would have revealed the defect affecting the back patio.
II. STANDARD OF REVIEW
This Court reviews de novo the trial court’s decision on a motion for summary
disposition. Maiden v Rozwood, 461 Mich. 109, 118; 597 NW2d 817 (1999). A party is entitled
to summary disposition under MCR 2.116(C)(10) if “there is no genuine issue as to any material
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fact, and the moving party is entitled to judgment . . . as a matter of law.” The trial court must
consider all the documentary evidence in the light most favorable to the nonmoving party. MCR
2.116(G)(5); Maiden, 461 Mich. at 120. A genuine issue of material fact exists if, when viewing
the record in the light most favorable to the nonmoving party, reasonable minds could differ on
the issue. Allison v AEW Capital Mgt, LLP, 481 Mich. 419, 425; 751 NW2d 8 (2008). We
review de novo questions of statutory interpretation. Bush v Shabahang, 484 Mich. 156, 164; 772
NW2d 272 (2009).
To survive a motion for summary disposition, once the nonmoving party has identified
issues in which there are no disputed issues of material fact, the burden is on the plaintiff to show
that disputed issues exist. CR 2.116(G)(4); Quinto v Cross & Peters Co, 451 Mich. 358, 362;
547 NW2d 314 (1996). The nonmoving party “must go beyond the pleadings to set forth
specific facts showing that a genuine issue of material fact exists.” Id. at 362. If the nonmoving
party does not make such a showing, the trial court properly grants summary disposition. Id. at
363.
III. CONSTRUCTIVE NOTICE
Davies contends that the trial court erred in granting summary disposition because after
he complained about the condition of the premises, Sheets had a duty to inspect them.
According to Davies, had Sheets inspected the premises, he would have discovered the condition
of the foundation that caused the corner of the back patio to collapse. We disagree.
A party may maintain a negligence action, including a premises liability action, only if
the defendant had a duty to conform to a particular standard of conduct. Riddle v McLouth Steel
Prod Corp, 440 Mich. 85, 96; 485 NW2d 676 (1992). A premises owner has a duty to protect
invitees—persons who enter the owner’s premises at his or her express or implied invitation—
from hidden or latent defects on his or her property. Id. at 90-91. A tenant is an invitee onto a
landlord’s premises. Prebenda v Tartaglia, 245 Mich. App. 168, 169; 627 NW2d 610 (2001).
“The mere existence of a defect or danger is not enough to establish liability[.]” Kroll v
Katz, 374 Mich. 364, 373; 132 NW2d 27 (1965) (quotation marks and citation omitted). The
landowner has the duty “to inspect the premises and, depending upon the circumstances, make
any necessary repairs or warn of any discovered hazards.” Stitt v Holland Abundant Life
Fellowship, 462 Mich. 591, 597; 614 NW2d 88 (2000). A landowner is only liable for injuries
caused by dangerous conditions that he or she knew of or, using reasonable care, should have
discovered. Id. Generally, this means that the landowner is liable for a dangerous condition
when it is “of such a character or has existed a sufficient length of time that he should have had
knowledge of it.” Clark v Kmart Corp, 465 Mich. 416, 419; 634 NW2d 347 (2001) (quotation
marks and citations omitted). However, a landowner “cannot avoid liability for the harms caused
by a dangerous condition on his or her property by claiming ignorance of its existence if in the
exercise of reasonable care the premises possessor should have discovered it.” Grandberry-
Lovette v Garascia, 303 Mich. App. 566, 575; 844 NW2d 178 (2014).
A landlord has the additional duty to “keep the premises in reasonable repair during the
term of the lease . . . .” MCL 554.139(1)(b). This duty only extends to reasonable repairs that
the landlord knew or should have known about. See Raatikka v Jones, 81 Mich. App. 428, 430-
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431; 265 NW2d 360 (1978). Michigan’s housing laws “do not impose a duty upon the landlord
to inspect the premises on a regular basis to determine if any defects exist.” Id.; see also
Hockenhull v Cutler Hubble, Inc, 39 Mich. App. 163, 168; 197 NW2d 344 (1972).
In this case, Sheets contended that there was no question of fact regarding whether a
casual inspection would have revealed the damage to the foundation that caused the back patio to
collapse. Sheets supported his assertion with Davies’s testimony that neither he nor his
girlfriend noticed anything wrong with the back patio after the drain repairs. Davies testified that
he had not noticed anything wrong with the patio on his inspection before he moved in and did
not notice anything different about the patio after the sewer repairs. He only noticed a change in
the patio “after it broke.”
In response, Davies did not offer any evidence that a casual inspection would have
uncovered the underlying foundation issues. Davies offered photographs of the patio taken after
its collapse, which provided no evidence of how the patio would have looked during a casual
inspection before it collapsed. The standards of MCR 2.116(C)(10) required Davies to set forth
specific facts showing that a casual inspection could have uncovered the damage to the patio and
foundation. Davies provided no evidence that Sheets could have discovered the defect using
reasonable care. Because Davies did not do so, the trial court properly granted summary
disposition.
Additionally, this case is different from Grandberry-Lovette, in which this Court held that
a landowner had a duty to inspect steps and, had he done so, there was a question of fact
regarding whether he would have discovered their dangerous condition. Grandberry-Lovette,
303 Mich. App. at 584. In that case, the defendant had previously repaired a brick staircase and
testified that he knew that it was normal for bricks to come loose in Michigan winters. Id. at
570-571.
In this case, there was no evidence that Sheets had previously repaired the back patio, nor
was there evidence that Sheets knew of a recurring condition that could damage the patio. Most
importantly, the question in Grandberry-Lovette was whether the premises owner had a duty to
inspect. The question in this case is whether, had Sheets performed an inspection using
reasonable care, he would have discovered the defective condition of the back patio. Simply
because whether Sheets could have discovered the defect is a question of fact does not absolve
Davies of his responsibilities under MCR 2.116(C)(10), which required him to go beyond the
pleadings and provide specific facts to show that an issue of disputed fact existed. Davies did
not do so in this case.
We affirm.
/s/ Joel P. Hoekstra
/s/ Peter D. O’Connell
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