Opinion
No. 352231
05-20-2021
JESSIE DAVIS, Plaintiff-Appellant, v. MARTHA WADE, Defendant, and SINGH MANAGEMENT CO., LLC, Defendant-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Oakland Circuit Court
LC No. 2018-169010-NO Before: K. F. KELLY, P.J., and SERVITTO and LETICA, JJ. PER CURIAM.
In this premises-liability action, plaintiff appeals as of right the trial court's order granting summary disposition to defendant Singh Management Co., LLC. On appeal, plaintiff argues the trial court erred by concluding that her claim sounded in premises liability, that defendant was not the possessor of the premises, and that no genuine issue of material fact existed regarding defendant's notice of the condition. Moreover, plaintiff contends that the trial court held an off-the-record pretrial hearing and considered irrelevant medical information. We affirm.
Defendant Martha Wade was dismissed by stipulation of the parties below. As such, she is not a party to this appeal.
I. FACTUAL BACKGROUND
On May 30, 2016, plaintiff attended a Memorial Day barbeque at the townhouse of her mother, Martha Wade. Wade rented her townhouse from defendant. Wade's townhouse had a back patio that was completely surrounded by a privacy fence, and two or three steps led down to the patio from the townhouse. At some point, plaintiff went down the patio steps to bring food out to the grill. When she attempted to return inside, the second step collapsed underneath plaintiff's foot, causing her foot to go through the step and all the way to the ground beneath. Plaintiff was injured as a result. Neither plaintiff nor Wade, who had used the steps earlier that day, saw or felt anything suggesting the steps were unsafe or defective until the step at issue collapsed on plaintiff.
Plaintiff filed the instant action against defendant alleging that defendant owed a duty to plaintiff to keep the premises in reasonable repair and breached that duty by failing to inspect the premises, identify the defect, and repair the dangerous condition. Defendant filed a motion for summary disposition under MCR 2.116(C)(8) and (10), arguing that plaintiff's claim sounded in premises liability, not negligence, because plaintiff's injury was allegedly caused by a condition of the land. And defendant could not be held liable because it did not have possession and control of the premises because it leased the townhouse to Wade. Additionally, defendant did not have actual or constructive notice of the dangerous condition. Following a hearing, the trial court granted defendant's motion, concluding that plaintiff's claim sounded in premises liability, defendant did not have possession or control of the premises, and defendant did not have notice of the condition. Plaintiff now appeals.
II. STANDARD OF REVIEW
We review a trial court's decision on a motion for summary disposition de novo. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). In defendant's motion for summary disposition, it relied on deposition testimony, and the trial court considered that evidence when it made its ruling. When the trial court considers facts outside the pleadings, we treat the motion as having been based on MCR 2.116(C)(10). Mitchell Corp of Owosso v Dep't of Consumer & Indus Servs, 263 Mich App 270, 275; 687 NW2d 875 (2004).
A motion brought under MCR 2.116(C)(10) tests the factual support of a plaintiff's claim and is reviewed by considering the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party. Summary disposition is proper 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 reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party. [Dep't of Transp v Nat'l Interstate Ins Co, 331 Mich App 112, 118-119; 951 NW2d 113 (2020) (quotation marks and citations omitted).]
III. DISCUSSION
Plaintiff raises a number of arguments on appeal, each of which we discuss in turn below. First, plaintiff argues the trial court erred by holding that her action sounded exclusively in premises liability instead of ordinary negligence. Second, plaintiff argues the trial court erred by holding that defendant was not the possessor subject to a premises-liability action because Wade was renting the premises. Third, plaintiff argues the trial court erred by holding there was no genuine issue of material fact regarding whether defendant had notice of the defective step, even assuming defendant was the possessor of the premises. And fourth, plaintiff argues the trial court erred by holding an off-the-record pretrial hearing at which it considered irrelevant medical information that affected its resolution of defendant's motion for summary disposition. We disagree.
A. ORDINARY NEGLIGENCE OR PREMISES LIABILITY
"Michigan law distinguishes between claims arising from ordinary negligence and claims premised on a condition of the land." Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 692; 822 NW2d 254 (2012). To that end, "[c]ourts are not bound by the labels that parties attach to their claims." Id. at 691. Instead, a court determines the gravamen of a claim by looking beyond the plaintiff's labels and reading the complaint as a whole. Wilson v BRK, Inc, 328 Mich App 505, 512; 938 NW2d 761 (2019). "If the plaintiff's injury arose from an allegedly dangerous condition on the land, the action sounds in premises liability rather than ordinary negligence . . . ." Buhalis, 296 Mich App at 692.
While plaintiff labeled her claim against defendant as one of negligence in her complaint, we are not bound by that label. Id. at 691. Further, read as a whole, her complaint clearly alleges a claim under premises liability only. Wilson, 328 Mich App at 512. Specifically, her complaint alleged an injury from a dangerous condition of land, i.e., a defective step. While she also alleged that defendant acted negligently by failing to inspect the step and maintain it properly, those allegations relate to defendant's failure to prevent a dangerous condition on the land. See id. (holding a plaintiff's allegation that the defendant's conduct contributed to the dangerous nature of a condition was insufficient to bring the claim outside of the realm of premises liability because, at its core, the claim was one involving an injury arising from an allegedly dangerous condition on the land). As such, plaintiff's claim arises under premises liability, not ordinary negligence, and the trial court did not err by so holding.
B. POSSESSOR OF LAND
Having concluded plaintiff's claim is one of premises liability, the next question is whether defendant was the possessor of the premises at issue for purposes of premises liability. "It is well established . . . that [p]remises liability is conditioned upon the presence of both possession and control over the land." Kubczak v Chem Bank & Trust Co, 456 Mich 653, 660; 575 NW2d 745 (1998) (quotation marks and citation omitted; alteration in original). Thus, "a landlord's duty [to keep an area reasonably safe] does not extend to the areas within a tenant's leasehold, because the landlord has relinquished its control over that area to the tenant." Bailey v Schaaf, 494 Mich 595, 608-609 n 36; 835 NW2d 413 (2013). See also Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 499 n 10; 418 NW2d 381 (1988) ("The landlord is not liable for injuries that occur within the boundaries of the leased premises.").
Plaintiff argues defendant was the possessor of the premises at issue, despite having leased the premises to Wade, because of a safe-repair clause in Wade's lease agreement. But, as the tenant, Wade possessed the premises, not defendant. See De Bruyn Produce Co v Romero, 202 Mich App 92, 98; 508 NW2d 150 (1993) ("A lease gives the tenant the possession of the property leased and exclusive use or occupation of it for all purposes not prohibited by the terms of the lease."). Further, "the element of control is of prime importance when determining the existence of a [landowner's] duty." Bailey, 494 Mich at 608 (quotation marks and citation omitted). While it is true that, under Wade's lease agreement with defendant, defendant agreed to provide any necessary maintenance to Wade's apartment "[u]pon request from" Wade, this did not amount to retaining possession or control of the premises. Instead, defendant merely gave Wade the option of calling upon defendant to repair certain issues that may arise within her leasehold. For these reasons, Wade was the possessor of the premises where plaintiff was injured, and plaintiff could not recover in premises liability from defendant. Accordingly, the trial court did not err by granting summary disposition to defendant under MCR 2.116(C)(10).
C. NOTICE
Plaintiff also argues there was a genuine issue of material fact whether defendant had notice of the defect in the step due to defendant's knowledge of four other steps in the rental complex that needed to be replaced before plaintiff's injury. While it is unnecessary to consider plaintiff's argument regarding notice given our conclusion above, we nevertheless choose to do so.
"In a premises liability action, a plaintiff must prove the elements of negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff's injury, and (4) the plaintiff suffered damages." Benton v Dart Props, Inc, 270 Mich App 437, 440; 715 NW2d 335 (2006). "The duty owed to a visitor by a landowner depends on whether the visitor was a trespasser, licensee, or invitee at the time of the injury." Sanders v Perfecting Church, 303 Mich App 1, 4; 840 NW2d 401 (2013). "A person invited on the land for the owner's commercial purposes or pecuniary gain is an invitee, and a tenant is an invitee of the landlord." Benton, 270 Mich App at 440. Further, because a tenant pays rent to a landlord in part for the right to invite others onto the property, a landlord receives some pecuniary benefit from a tenant's guests. Stanley v Town Square Co-op, 203 Mich App 143, 148; 512 NW2d 51 (1993). Therefore, a tenant's guest is also a landlord's invitee. Id. "[A] landowner owes a duty to use reasonable care to protect invitees from unreasonable risks of harm posed by dangerous conditions on the owner's land." Hoffner v Lanctoe, 492 Mich 450, 460; 821 NW2d 88 (2012). An owner is liable for a breach of this duty if it "knows or should know of a dangerous condition on the premises of which the invitee is unaware and fails to fix the defect, guard against the defect, or warn the invitee of the defect." Id. (emphasis added).
Although defendant argued below that plaintiff, as a social guest of Wade, was merely a licensee, on appeal defendant correctly concedes that plaintiff was an invitee.
To begin, it is worth noting plaintiff has never argued that defendant had actual notice of the defective step. Indeed, there is no evidence in the record to support such an argument. Even plaintiff and Wade, both of whom used the step shortly before it collapsed, could not see or feel anything to suggest it was near its breaking point. Thus, plaintiff relies on a constructive-notice theory based on a notation in defendant's records indicating that, before Wade's step collapsed and injured plaintiff, four other steps in the complex had to be replaced. Specifically, the notation stated:
Regarding the step repair, we do not have any work orders for this project. At the same time of the incident, [Thomas Mullins] in maintenance had already
gathered 4 other neighboring units that required new steps as well, we simply added hers to the list, and it was completed on 5/31/2016, the first day back from Memorial Day.There is no evidence in the record indicating why those four steps had to be replaced. In fact, there is not even any evidence in the record indicating why Wade's step collapsed. Without some indication that the defects in the other steps were similar to the defect in Wade's step, reasonable minds could not conclude defendant had constructive notice of Wade's defective step. Dep't of Transp, 331 Mich App at 119. There were 389 units in the complex and knowledge that four units had stairs that needed to be replaced hardly put defendant on notice that the remaining 385 units had defective stairs. Because there is no genuine issue of material fact as to whether defendant had notice of the defect in Wade's step, the trial court did not err by granting summary disposition to defendant. Id. at 118-119.
D. OFF-THE-RECORD HEARING AND MEDICAL INFORMATION
Plaintiff's final argument is that the trial court's decision on defendant's motion for summary disposition was improperly influenced by an off-the-record pretrial hearing, where irrelevant medical information was allegedly disclosed to the court. We find no merit in plaintiff's argument.
While the trial court's register of actions indicates an off-the-record pretrial hearing was held, there is nothing to indicate what occurred at that hearing. In addition, the medical information plaintiff alleges to have been disclosed to the trial court does not appear in the record, nor does she explain what this medical information was, other than that it came from Geico Insurance. "This Court's review is limited to the record established by the trial court, and a party may not expand the record on appeal." Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649 NW2d 783 (2002). There is simply no way to determine whether error occurred at the hearing from the record, and, as far as we can tell, there is nothing inherently erroneous about holding a hearing off the record. Further, what is in the record suggests that neither defendant nor the trial court had medical information from Geico. On December 6, 2019, defendant filed a motion for a show-cause order against multiple healthcare facilities and Geico. In its motion, defendant alleged that it subpoenaed records from Geico, but Geico did not comply with the subpoena. Attached to defendant's motion was a subpoena that appears to have been directed to Geico and was dated after the off-the-record hearing where plaintiff argues this information was considered by the trial court. While the court granted defendant's show-cause motion, nothing in the record indicates Geico complied with that order before the court issued its opinion on defendant's motion for summary disposition, nor is there any indication in the court's opinion that suggests it considered this information. Thus, there is no basis, on this record, to conclude the trial court impermissibly relied on irrelevant medical information when it granted defendant's motion for summary disposition. For these reasons, as well as those discussed earlier, the trial court did not err by granting summary disposition to defendant.
The best practice, however, is for the court or the parties to summarize any off-the-record discussion on the record. --------
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Deborah A. Servitto
/s/ Anica Letica