Opinion
366338
09-12-2024
JAN BOWERMAN, Plaintiff-Appellant, v. RED OAK MANAGEMENT CO., INC., and WESTVELD SERVICES, LLC, Defendants-Appellees, and BOB'S ASPHALT & PAVING, INC., Defendant.
UNPUBLISHED
Montcalm Circuit Court LC No. 2022-028824-NO
Before: GADOLA, C.J., and K. F. KELLY and MARIANI, JJ.
PER CURIAM.
Plaintiff Jan Bowerman appeals by right the order of the Montcalm Circuit Court granting defendants Red Oak Management Co., Inc., (Red Oak) and Westveld Services, LLC, (Westveld) summary disposition of plaintiff's claims pursuant to MCR 2.116(C)(10). We affirm.
I. FACTS
On the morning of October 30, 2021, about an hour before sunrise, plaintiff was taking out her trash at her apartment complex when she stepped into a hole, or a "trench" as the parties describe it, in the parking lot and fractured her ankle. The trench was created by defendant Westveld during the excavation of a recently poured concrete slab for the apartment's dumpster. Defendant Westveld was hired by defendant Red Oak to replace concrete in various areas around the apartment complex. Westveld poured the concrete for the dumpster platform on or around October 14, 2021. After Westveld was finished, the small trench was allegedly going to be filled by Bob's Asphalt &Paving. Westveld states in its brief that, "Normally, Bob's Asphalt would come within a day or two after Westveld completed its work to fill in the trenches. But on this occasion, Bob's Asphalt did not do this until 10 days after Westveld was done with its work." To make sure tenants could access the dumpster, defendant Westveld moved it to a grassy area on the right side of the concrete slab. The narrow trench was ten feet long and four inches deep. The trench ran along the front of the concrete slab where the dumpster is typically located.
Plaintiff was 75 years old at the time of her fall and had lived at the Stanton Park Apartments, a residential building for seniors, for about eight years. Before she retired in 2018, plaintiff was actually a site manager for defendant Red Oak for 19 years, and was the site manager at the Stanton Park Apartments for about 10 of those years. Plaintiff kept detailed personal notes about the condition of the Stanton Park Apartments even after she retired. Plaintiff's note from October 14, 2021, states, "Dumpster was moved to grass area." Another note from October 14thgoes on to say, "Sidewalks were being teared out [sic]. Started to rain. The company left cement and trash left laying on parking lot areas. No signs-caution tapes-no cones was put out [sic]. From the 14th of afternoon to 10-17-21 nothing was done on sidewalks." Plaintiff's note from October 18, 2021, states, "Sidewalk repairs started up again." Finally, her note labeled October 30, 2021, states, "I fell into trench took my trash out at 7:30 a.m. was dark. Called ambulance (my brother called)." Plaintiff testified as to how she fell as follows:
I went out my apartment, turned to the left, went about 80 feet to that side door. And that side door, there's a handicapped sidewalk. I walked down to the end of the sidewalk. And then about - once you get past that sidewalk, it's about eight feet or ten feet, and I'm at the dumpster, and that's the route I always use to take out my trash.
Well, that particular morning, I didn't wait [for daylight]. I looked out the side door, and I noticed that I could still see the sidewalk. It was still dark, but there was still light on the sidewalk. I went down the sidewalk, and when I - I knew I was going to have to go to the parking lot to miss some of the area, but - so I went out to the parking lot. And once I got to the middle of the parking lot, it was all black. I couldn't see, so then I spotted the dumpster. They had moved it off the patio slab it was on. I - I seen that because it had like a reflector on it, and there was a little light coming from the trees from the streetlight. So I kept my eye on that dumpster, and I started walking toward it. And before - before I knew it, my foot went right to the edge. At that time, I didn't know what it was, but it went right to the edge of that trash, and I fell right down - right down in the hole."
Plaintiff further testified that she was aware of the trench's location and that she takes her trash out every day. Plaintiff explained that on the morning of the accident, she exited the side door of the apartment building and walked down the sidewalk to the parking lot. Once she was in the parking lot, she "went way out toward the middle of the parking lot" to "stay away from [the concrete slab]." So once plaintiff was in the middle of the parking lot, she "spotted the dumpster reflection light" and started walking towards it when she tripped and fell over the trench. Photos of the trench show that the sidewalk connects to the back-end of the concrete slab, providing tenants a pathway to the dumpster.
Plaintiff filed a complaint in the circuit court alleging violation of MCL 554.139 against Red Oak, negligence against Westveld, and negligence against Bob's Asphalt &Paving, Inc. Bob's Asphalt &Paving, Inc. was dismissed as a defendant when the trial court granted its motion for summary disposition. The trial court's order does not explain its reasoning, but Bob's Asphalt argued in its motion that it did not create the trench and was unaware of its existence until it was asked to fill, and did fill the trench on November 10, 2021. Defendants Westveld and Red Oak each subsequently filed motions for summary disposition. The trial court found that Red Oak did not violate MCL 554.139 because the parking lot was fit for its intended use, and granted Red Oak summary disposition. The trial court also found that Westveld was entitled to summary disposition of plaintiff's negligence claim under MCR 2.116(C)(10) because the trench was an open and obvious condition without special aspects that would preclude recovery. Plaintiff now appeals.
II. DISCUSSION
Plaintiff argues the trial court erred in granting defendants summary disposition of plaintiff's claims. We disagree.
A. STANDARD OF REVIEW
This Court reviews de novo a trial court's decision to grant or deny summary disposition. Meemic Ins Co v Fortson, 506 Mich. 287, 296; 954 N.W.2d 115 (2020). "A motion under MCR 2.116(C)(10) tests the factual sufficiency of a complaint." Kandil-Elsayed v F &E Oil, Inc, 512 Mich. 95, 109; 1 NW3d 44 (2023) (citation omitted). A (C)(10) motion "should be granted if the evidence submitted by the parties 'fails to establish a genuine issue regarding any material fact, [and] the moving party is entitled to judgment as a matter of law.'" Allison v AEW Capital Mgmt, LLP, 481 Mich. 419, 424-425; 751 N.W.2d 8 (2008) (citation omitted). A genuine issue of material fact exists when "reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party." Id. at 425, quoting West v Gen Motors Corp, 469 Mich. 177, 183; 665 N.W.2d 468 (2003).
Issues of statutory interpretation are also reviewed de novo. Allison, 481 Mich. at 424. The goal of statutory interpretation is "to ascertain the legislative intent that may be reasonably inferred from the words expressed in the statute." Id. at 427, quoting G.C. Timmis &Co v Guardian Alarm Co, 468 Mich. 416, 420; 662 N.W.2d 710 (2003). If the language in a statute is clear, "we presume that the Legislature intended the meaning expressed." Id.
B. MCL 554.139
While this appears to be a classic premises liability case, plaintiff has only asserted a statutory claim against defendant Red Oak, and plaintiff confirmed in the lower court proceedings that she is not making a claim of common law premises liability. Rather, plaintiff claims Red Oak violated its duty to her as a lessor of the property under MCL 554.139 when it failed to keep the parking lot fit for its intended use and violated local health and safety laws. MCL 554.139(1) provides:
In every lease or license of residential premises, the lessor or licensor covenants:
(a) That the premises and all common areas are fit for the use intended by the parties.
(b) To keep the premises in reasonable repair during the term of the lease or license, and to comply with the applicable health and safety laws of the state and of the local unit of government where the premises are located, except when the disrepair or violation of the applicable health or safety laws has been caused by the tenants [sic] wilful or irresponsible conduct or lack of conduct. [MCL 554.139].
This statute "provides a specific protection to lessees and licensees of residential property in addition to any protection provided by the common law." Allison, 481 Mich. at 425 (emphasis in original). Thus, if Red Oak had a duty under MCL 554.139(1)(a) or (b) to fill the trench, then plaintiff could proceed on her statutory claim even if a negligence claim would be barred by the "open and obvious danger doctrine." Id. However, "a breach of the duty to maintain the premises under MCL 554.139(1)(a) or (b) would be construed as a breach of the terms of the lease between the parties and any remedy under the statute would consist exclusively of a contract remedy." Id. at 425-426. Plaintiff's claim against Red Oak is therefore a contract claim under the law.
The first question is whether MCL 554.139(1) subsection (a), (b), or both, applies to the parking lot at issue here. The plain language of the statute dictates that the covenant of "fitness for the use intended by the parties" in (1)(a) applies to both "premises" and "common areas", while the covenant of "reasonable repair" in (1)(b) applies only to "premises." See Allison, 481 Mich. at 431-432. Our Supreme Court has held that parking lots within a leased residential property that are shared by the tenants constitute "common areas" under MCL 554.139(1)(a), id. at 428, and thus the lessor's duty to repair under (1)(b) does not apply to parking lots, id. at 435. Under (1)(a), a lessor has a contractual duty to keep the parking lot "fit for the intended use by the parties." Id. at 429. "[MCL 554.139(1)(a)] 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." Id. at 430. "Mere inconvenience of access.. .will not defeat the characterization of a lot as being fit for its intended purposes." Id.
Plaintiff's brief dedicates much space to analyzing MCL 554.139(1)(b) and alleging that the lighting in the parking lot violated applicable local health and safety laws. The trial court addressed (1)(b) in its order, but conditioned its analysis with, "To the extent that the parking lot was considered part of the premises and subject to the higher duty under [MCL 554.139].," and then concluded that Red Oak had not violated any applicable health and safety law. However, we need not address subsection (1)(b) of the statute because Michigan law is clear that parking lots constitute "common areas" of an apartment complex, and are not part of the "premises" described in (1)(b).
The next question is whether the covenant in (1)(a) encompasses the duty to keep the parking lot free from the defect at issue, i.e., the trench. Because only the covenant for fitness for intended use applies to common areas, "we can reasonably infer that the Legislature intended to place a less onerous burden on the lessor with regard to common areas. Keeping common areas fit for their intended use may well require a lessor to perform maintenance and repairs to those areas, but may conceivably require repairs less extensive than those required by the second covenant[,]" in subsection (1)(b). Allison, 481 Mich. at 433. The intended use of a parking lot includes parking vehicles and walking on the lot. See id. at 429. "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. This obligation "would commonly be to ensure that the entrance to and exit from, the lot is clear, that vehicles can access parking spaces, and that tenants have reasonable access to their parked vehicles." Id. Here, the tenants also were likely to traverse the parking lot in order to take out their trash because the dumpster was located adjacent to the parking lot, and there is no evidence there was another dumpster available to tenants. Therefore, Red Oak had a duty to ensure the parking lot was fit for reasonable access to the dumpster as well. See id.
The testimony of plaintiff, and the photo exhibit showing the trench in the darkness, indicate plaintiff attempted to walk north of the trench to access the dumpster, but tripped over the corner of the trench. As the trial court noted, plaintiff clearly knew of the trench's location, as she had successfully avoided it when taking her trash out every day for the fourteen days the trench was there. Plaintiff was not forced to encounter the trench to access the dumpster. The Allison Court found that a lessor did not breach its duty to provide tenants reasonable access to their vehicles when it ensured entrances to and exits from the parking lot were clear. Similarly, Red Oak provided two entrances to and exits from the dumpster area that avoided the trench. Further, because plaintiff was also able to walk around the trench successfully many times, the trench was a mere inconvenience, which "will not defeat the characterization of a lot as being fit for its intended purposes." See Allison, 481 Mich. at 430. The trial court did not err in concluding that the parking lot was fit for its intended use; it provided plaintiff with reasonable access to the dumpster, and thus Red Oak did not violate MCL 554.139(1)(a).
C. NEGLIGENCE
Plaintiff argues the trial court erred in finding the trench was open and obvious, and that Westveld was entitled to summary disposition on that basis. Plaintiff contends that the trench was not open and obvious, Westveld was merely a contractor and could not avail itself of the open and obvious defense, and most importantly, the trial court analyzed plaintiff's claim under the duty element of negligence rather than the breach element, which is contrary to the Supreme Court's recent decision in Kandil-Elsayed.
In Kandil-Elsayed, the Supreme Court explicitly overruled Lugo v Ameritech Corp, Inc, 464 Mich. 512; 629 N.W.2d 384 (2001), the case that established the open and obvious defense as an element of duty in premises liability cases. Kandil-Elsayed, 512 Mich. at 153. Now, courts are to analyze the open and obvious nature of a defect under the breach of duty and comparative fault element of negligence. Id. In premises liability actions and common law negligence actions, the plaintiff must "prove four essential elements: duty, breach, causation, and harm." Id. at 110. In Michigan, it is well settled that "the question whether the defendant owes an actionable legal duty to the plaintiff is one of law which the court decides." Id. at 112 (citation omitted). And in contrast, the question of breach is usually a jury question. Id. However, when the evidence of breach presents no genuine issue of material fact, breach can be decided by the court as a matter of law. Id. at 112 n 2. There can be no tort liability unless a defendant owed a duty to the plaintiff. Hill v Sears, Roebuck and Co, 492 Mich. 651, 660; 822 N.W.2d 190 (2012). And there can be no duty imposed if there is no relationship between the parties because the harm is not foreseeable. Id. at 661.
In Lugo, our Supreme Court held that a plaintiff who stepped in a pothole and fell while walking across defendant's parking lot could not recover in negligence because the pothole was open and obvious, and thus defendant had no duty to protect the plaintiff. Lugo, 464 Mich. at 523. Plaintiffs could only recover for an open and obvious danger if there were special aspects of the condition that would make an open and obvious risk unreasonably dangerous. Id. at 517. As stated, in Kandil-Elsayed, the Supreme Court overruled Lugo and held that the open and obvious danger doctrine is now to be analyzed when asking whether a defendant breached its duty to the plaintiff. 512 Mich. at 153. The test for whether a danger is open and obvious remains "whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection." Id. at 134 (citation omitted). "This is an objective standard, calling for an examination of 'the objective nature of the condition of the premises at issue.'" Hoffner v Lanctoe, 492 Mich. 450, 461; 821 N.W.2d 88 (2012), quoting Lugo, 464 Mich. at 523-524.
Plaintiff asserts only a claim of negligence against defendant Westveld, and not a claim of premises liability. However, plaintiff's claim is based on an injury arising from a condition of the land, i.e., the trench in the parking lot. "A claim based on the condition of the premises is a premises liability claim." Finazzo v Fire Equipment Co, 323 Mich.App. 620, 627; 918 N.W.2d 200 (2018) (citation omitted). The trial court used this reasoning to conclude that plaintiff's claim was based in premises liability, and thus the open and obvious nature of the trench precluded liability. Therefore, we will analyze plaintiff's arguments in the context of both premises liability and general negligence.
1. PREMISES LIABILITY
It is well established that "premises liability is conditioned upon the presence of both possession and control over the land." Kubczak v Chemical Bank &Trust Co, 456 Mich. 653, 660; 575 N.W.2d 745 (1998). "This rule is based on the principle that a party "in possession is in a position of control, and normally best able to prevent any harm to others." Finazzo, 323 Mich.App. at 627. "Liability for negligence does not depend upon title; a person is liable for an injury resulting from his negligence in respect of a place or instrumentality which is in his control or possession, even though he is not the owner thereof." Id. (citation and emphasis omitted).
In this case, defendant Westveld was not in possession or control of the land at the time of plaintiff's fall. Defendant Red Oak possessed the apartment complex and contracted with Westveld to perform concrete work around the common areas. Westveld's owner testified that he started the job on or about October 14, 2021 and finished on or about October 21, 2021. This is consistent with plaintiff's notes that indicate the sidewalks were being torn out on October 14, 2021, and that they were being repaired on October 18, 2021. Plaintiff's fall occurred on October 30, 2021, nine days after defendant Westveld had vacated the premises. It is clear that Westveld had neither possession or control of the premises at the time of plaintiff's fall. The trial court erred in concluding Westveld created the condition on the land "such that it would be subject to the same liability" as though it were the possessor of land. However, this Court can affirm a decision on a motion for summary disposition for different reasons than those identified by the trial court. Kyocera Corp v Hemlock Semiconductor, LLC, 313 Mich.App. 437, 449; 886 N.W.2d 445 (2015).
2. ORDINARY NEGLIGENCE
Plaintiff asserts a claim in ordinary negligence against defendant Westveld. "Contractors have a common-law duty to perform their work with ordinary care so as not to unreasonably endanger employees of other subcontractors or anyone else lawfully on the worksite." Finazzo, 323 Mich.App. at 634 (citation omitted). Generally, whether a particular defendant's conduct created an unreasonable risk of harm is a question of fact for the jury to decide. Id. But if the court finds that no reasonable person could conclude that the defendant created an unreasonable risk of harm, then the court can decide the question of duty as a matter of law. Id.
In Finazzo, plaintiff was working as a security guard at a company called ITC. 323 Mich.App. at 623. ITC contracted with Fire Equipment Company (FEC) to install a fire alarm system. Id. While FEC was installing the system, plaintiff tripped over a cable and injured himself. Id. Plaintiff then sued FEC for negligence. Id. The court concluded that because plaintiff was aware of the presence of the cables, and had safely stepped over them numerous times before falling, plaintiff could not establish a breach. Id. at 637. The court found that defendant contractor did not breach its general duty to perform its work so as to not unreasonably endanger the well-being of anyone lawfully on the worksite. Id.
Here, Westveld had a common law duty to perform its work with ordinary care so as not to create an unreasonable risk of harm. But for many of the same reasons that the trial court found the trench to be open and obvious, defendant Westveld did not breach its general duty of ordinary care. First and foremost, plaintiff was aware of the hazard; she and others had safely accessed the dumpster for two weeks before plaintiff's fall. Plaintiff took detailed notes on the contractors' activities around the complex in the days leading up to her fall and was aware of the trench's existence and location. The concrete slab was visible even in the darkness, as is shown from the photograph plaintiff provided.
The trial court did not err in finding that the trench was avoidable and did not unreasonably endanger plaintiff. Plaintiff, despite her awareness of the trench, chose a path that led her into it on the morning of her accident, even though she had managed to avoid it on multiple previous occasions. Therefore, Westveld did not breach its general duty to perform its work so as to not unreasonably endanger the well-being of anyone on the premises. See Finazzo, 323 Mich.App. at 637. Because the evidence concerning Westveld's alleged breach presents no question of fact, the trial court did not err in granting Westveld's motion for summary disposition pursuant to MCR 2.116(C)(10). And because there is no genuine issue of material fact that Westveld breached a duty owed to plaintiff, her claim against Westveld fails whether examined as either a premises liability case or a negligence case.
Affirmed.
MARIANI, J. (dissenting).
I respectfully dissent, as I disagree that either defendant in this case has shown entitlement to summary disposition on plaintiff's respective claims against them. In my view, genuine issues of material fact exist as to whether Red Oak violated MCL 554.139(1)(a) and whether Westveld breached its duty to act with ordinary care so as not to create an unreasonable risk of harm. These claims thus belong with a jury to resolve, and I would reverse and remand so that they can proceed accordingly.
As our Supreme Court recently confirmed, "[a] court's role at the summary disposition stage is narrow." Kandil-Elsayed v F &E Oil, Inc, 512 Mich. 95, 109; 1 NW3d 44 (2023). It must be sure not to act as a factfinder, and must instead simply review the proffered evidence for genuine issues of material fact, which exist" 'when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party.'" Id. at 109-110, quoting Allison v AEW Capital Management, LLP, 481 Mich. 419, 425; 751 N.W.2d 8 (2008). This narrow role for the court is well settled, and I do not believe either defendant's bid for summary disposition can survive its proper application in this case.
Starting with defendant Red Oak, I see genuine issues of material fact as to whether it violated its obligation to plaintiff under MCL 554.139(1)(a). That subsection provides that, in every lease of a residential premises, the lessor covenants that "the premises and all common areas are fit for the use intended by the parties." MCL 554.139(1)(a)." 'Fit' is defined as 'adapted or suited; appropriate[.]'" Allison, 481 Mich. at 429, quoting Random House Webster's College Dictionary (1997). "The statute does not require the lessor to maintain [a common area] in an ideal condition or in the most accessible condition possible ...." Id. at 430. The statute does, however, expressly require that its "provisions . . . shall be liberally construed." MCL 554.139(3).
The common area at issue in this case is the trash disposal area of Red Oak's apartment complex, which abuts the parking lot. Generally, in an apartment complex, trash disposal areas are used to provide tenants access to a place where they can dispose of their trash-in this case, a dumpster. Thus, as the majority concludes, Red Oak had a duty to ensure the common area at issue in this case was fit to provide the tenants of its apartment complex reasonable access to the dumpster. Furthermore, there is no dispute that the apartment complex in this case is specifically for senior citizens and those with disabilities. Given the apartment complex's limited class of tenants, the "use" of this trash disposal area that was "intended by the parties" to the leases for the complex-and the use for which that area needed to be "fit"-was necessarily use by elderly and/or disabled tenants, specifically. MCL 554.139(1)(a). Viewing the record in the light most favorable to plaintiff, I believe that reasonable minds could conclude that, at the time of plaintiff's injury, the trash disposal area was not fit for the use intended by these parties. See West v Gen Motors Corp, 469 Mich. 177, 183; 665 N.W.2d 468 (2003).
Photographs in the record document the layout and condition of the trash disposal area. There is a concrete slab on which the dumpster typically sits, and a sidewalk that runs from the apartment complex to one side of the slab. In this case, to accommodate the replacement of the concrete slab, the dumpster had been moved off to the side of the slab and onto a neighboring grassy area. The dumpster was placed on the side of the slab opposite from the one to which the sidewalk connected. The trench at issue in this case was ten feet long and approximately four to five inches deep, running the length of the front side of the concrete slab where the slab met the asphalt of the parking lot. The photographs show that, in order to access the dumpster from the building, tenants could follow the sidewalk to the concrete slab, and then reach the dumpster in one of two ways: either by walking across the slab and then onto and across the grassy area, or by walking into the parking lot and around the slab.
Accordingly, to reach the dumpster while avoiding the worksite and its recently poured concrete slab, tenants like plaintiff had to take a parabolic course around the concrete slab and the 10-foot trench that ran along its front side. It is undisputed that there were no visual aids installed to warn tenants of the trench's location, such as cones or caution tape. And the photographs also show that, in the dark-the time when plaintiff fell-the concrete slab was visible, but the trench itself was dark like the asphalt and difficult to see. This was further supported by the findings of plaintiff's expert, who opined that parking lots should have 0.5 foot candles of lighting in order to be considered safe for walking for tenants such as plaintiff and whose site investigation, which occurred in conditions similar to when plaintiff fell, yielded a reading of 0.0 foot candles at the location of her fall.
Evidence of record thus shows that tenants of Red Oak's apartment complex like plaintiff-who were necessarily senior citizens and/or individuals with disabilities-had to navigate around the trench in order to access the dumpster without crossing the worksite. And the evidence further shows that the visibility in that area after dark was low, and that there were no visual aids to demarcate the trench from the asphalt. Given these circumstances, I believe that, at minimum, reasonable minds could differ as to whether Red Oak discharged its obligation to ensure that the trash disposal area was fit for the use intended by the parties. West, 469 Mich. at 183.
The majority posits that summary disposition was warranted because the trench was a "mere inconvenience," pointing to our Supreme Court's use of that phrase in Allison and to plaintiff's own knowledge of the trench and prior success in avoiding it. I struggle with this conclusion for a few reasons. To start, while the concept of "mere inconvenience" has cropped up in our caselaw regarding MCL 554.139(1)(a), its analytical role and value strike me as limited; that phrase is wholly absent from the statute and it does not (nor could it) supplant the words chosen by the legislature to define the scope of Red Oak's obligation thereunder. That obligation, the legislature made clear, is to ensure the area at issue is "fit for the use intended by the parties," and the scope of that obligation must be "liberally construed." MCL 554.139(1)(a), (3). If an area meets these statutory criteria, then a plaintiff cannot override that fact simply by identifying a mere inconvenience they faced; that was the point Allison used the phrase to illustrate. See Allison, 481 Mich. at 430 (explaining that "[m]ere inconvenience of access, or the need to remove snow and ice from parked cars, will not defeat the characterization of a [parking] lot as being fit for its intended purposes"). But by the same token, if an area does not meet MCL 554.139's stated criteria, a defendant cannot escape liability and the statute's plain terms simply by characterizing the hazard as a mere inconvenience that the plaintiff could have conceivably avoided. See, e.g., Estate of Trueblood v P&G Apartments, LLC, 327 Mich.App. 275, 292; 933 N.W.2d 732 (2019) (finding that the fact that others were able to successfully walk on the icy sidewalk where the plaintiff fell did not overcome other evidence which indicated that the sidewalk was not fit for the use intended by the parties).
That a tenant may be able to a find a way to still use an area for a given purpose despite its hazards does not, in my view, mean that the lessor has discharged its duty to keep the area "fit"- that is, adapted or appropriate-for that use, particularly when fitness receives the liberal construction it must. See Allison, 481 Mich. at 429; MCL 554.139(3). And while (for reasons discussed infra) a tenant's own fault for not better avoiding a hazard may bear on the ultimate extent of a lessor's liability, the lessor still owes to the tenant, and must meet, its statutory obligation as to that hazard; nothing in MCL 554.139 suggests otherwise. A contrary conclusion, I believe, would be to stray too far from MCL 554.139's plain terms, and into notions of the former open-and-obvious-danger doctrine that have long had no place in the statutory analysis. See, e.g., Benton v Dart Properties, Inc, 270 Mich.App. 437, 440-441; 715 N.W.2d 335 (2006).
Furthermore, I do not view the trench at issue in this case as a "mere inconvenience," let alone one as a matter of law. Nothing suggested that this 10-foot-long, four-to-five-inch-deep trench would be reasonably safe to just leave in place; it was an unfinished portion of a construction project that was in a location that (elderly and disabled) tenants would regularly need to access, and that representatives of both Red Oak and Westveld admitted was a potential trip hazard. While plaintiff may have successfully avoided the trench during prior trips to the dumpster, plaintiff testified that none of those previous instances occurred at night. And more fundamentally, as discussed, the fact that the common area had been successfully traversed in the past is not itself dispositive of whether the area was fit for the use intended by the parties. See Estate of Trueblood, 327 Mich.App. at 292. At minimum, I believe the record presents genuine issues of material fact in this regard that are for a jury, and not the trial court or this Court, to resolve.
I would thus conclude that, viewing the record in the light most favorable to plaintiff, reasonable minds could differ as to whether the trash disposal area was fit for the use intended by the parties and, correspondingly, that Red Oak was not entitled to summary disposition on plaintiff's claim under MCL 554.139(1)(a).
Plaintiff also claimed that, because the lighting in the parking lot violated local health and safety laws, Red Oak violated its obligation under MCL 554.139(1)(b) "to comply with the applicable health and safety laws of the state and of the local unit of government where the premises are located." The majority concludes that it need not address this claim because the area of the apartment complex at issue is a "common area" and not part of the "premises," which renders subsection (1)(b) wholly inapplicable to this case. I disagree with this proposition. As this Court has explained, subsection (1)(b) comprises two distinct covenants: "a landlord's covenant to comply with local health and safety laws is distinct from its covenant to make reasonable repairs." Estate of Trueblood, 327 Mich.App. at 295. And while the covenant to make reasonable repairs is limited only to the "premises" and not the "common areas," the covenant to comply with health and safety laws applies to both. Id. at 293-295. Nonetheless, I do not see error in the trial court's award of summary disposition to Red Oak as to this portion of plaintiff's claim, as plaintiff has failed as a matter of law to show noncompliance with any applicable health or safety laws. That said, as discussed supra, plaintiff put forth evidence regarding the inadequacy of the lighting in the parking lot that is relevant to her claim under MCL 554.139(1)(a), regardless of the success of her claim under MCL 554.139(1)(b).
Turning to plaintiff's claim against Westveld, I agree with the majority that there is no genuine issue of material fact that Westveld was not in possession and control of the trash disposal area at the time of plaintiff's injury; accordingly, Westveld did not owe a duty to plaintiff under a theory of premises liability. Westveld did, however, owe a duty to plaintiff under a theory of ordinary negligence, as plaintiff alleged in her complaint. And I disagree that Westveld is entitled to summary disposition on that claim.
An ordinary negligence claim is made up of four elements: duty, breach, causation, and harm. Kandil-Elsayed, 512 Mich. at 110. As the majority acknowledges, Westveld had a duty to perform its work with ordinary care so as not to create an unreasonable risk of harm. The majority also acknowledges that, "[g]enerally, unless the court can conclude that all reasonable persons would agree the defendant did not create an unreasonable risk of harm, whether a defendant's conduct in the particular case breached this general standard of care is a question of fact for the jury to decide." Finazzo v Fire Equipment Co, 323 Mich.App. 620, 634; 918 N.W.2d 200 (2018). As Westveld concedes, it did not seek summary disposition below on the basis that it did not breach this duty to plaintiff. And rightly so, in my view, as the record betrays genuine issues of material fact on that point.
Westveld was responsible for creating the trench at issue and for placing the dumpster on the grassy area neighboring the concrete slab. Testimony from Westveld's owner and operator established that the company ordinarily puts out caution tape and cones to warn of conditions like the trench but failed to do so for this trench. He also testified that the company filled in other trenches around the parking lot with sand or asphalt milling but failed to do so for this trench. And he admitted that this trench was a potential trip hazard. Viewing the record in the light most favorable to plaintiff, I believe that, at minimum, reasonable minds could differ about whether Westveld created an unreasonable risk of harm under these circumstances. West, 469 Mich. at 183.
As with Red Oak, the majority concludes Westveld was entitled to summary disposition based on plaintiff's own actions and awareness of the trench, explaining that, for many of the same reasons that the trial court found the trench to be open and obvious, Westveld did not breach its general duty of ordinary care. Plaintiff's actions may speak to her degree of comparative fault, but I fail to see how they show Westveld did not, as a matter of law, breach its duty of care. Under Michigan's comparative-fault framework, "when a plaintiff is at fault, it does not bar recovery, but rather reduces the amount of damages they can recover by their percentage of fault." Kandil-Elsayed, 512 Mich. at 133 (emphasis in original). And the extent of plaintiff's own liability for her injuries are to be allocated by the trier of fact. Id. at 136; see also Gabrielson v Woods Condo Ass'n Inc, ___ Mich.App. ___, ___; ___ NW3d ___ (2024) (Docket Nos. 364809 and 36481); slip op at 13 (explaining that, after Kandil-Elsayed, the "plaintiff's knowledge of the hazardous condition is now only relevant to [the] plaintiff's comparative fault" and "is not dispositive on the question whether the defendant breached the duty owed to the plaintiff").
Relying on Finazzo, 323 Mich.App. 620, the majority reasons that plaintiff's actions demonstrate that Westveld did not create an unreasonable risk of harm. I find Finazzo distinguishable. There, the plaintiff tripped over a visible cable while the defendant was installing a fire alarm system. Id. at 623. Unlike this case, it was undisputed that the defendant warned the plaintiff about the cable and that the room where the plaintiff tripped was fully illuminated. Id. at 636-637. The plaintiff pointed to no action by the defendant which created an unreasonable risk of harm. But here, Westveld's conduct demonstrates the unreasonable risk of harm, or at least a genuine factual dispute in that regard. Record evidence indicates that, despite the admittedly hazardous nature of the trench, Westveld failed to follow its ordinary protocol of putting up cones and caution tape and failed to fill in the trench as it did for other trenches in the parking lot. Viewing Westveld's conduct in the light most favorable to plaintiff, reasonable minds could conclude that it created an unreasonable risk of harm. Reasonable minds might also conclude that plaintiff bears comparative fault for her injuries and her recovery should be reduced accordingly. But given the record at hand, the questions of Westveld's breach and plaintiff's comparative fault belong with the jury, as factfinder, to resolve, and not with the trial court or this Court to decide as a matter of law.
Accordingly, I would reverse the trial court's award of summary disposition as to both Red Oak and Westveld and remand for further proceedings.