Opinion
No. 346252
11-26-2019
KRISTEN STONE, Plaintiff-Appellant, v. BOULDER CREEK APARTMENTS, LLC, and USA ASSET FUND, LLC Defendants-Appellees.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Genesee Circuit Court
LC No. 15-104551-NI Before: CAMERON, P.J., and CAVANAGH and SHAPIRO, JJ. PER CURIAM.
Plaintiff appeals as of right an order granting summary disposition in favor of defendants in this slip-and-fall premises liability action involving the duty of landlords to keep common areas fit for their intended use under MCL 554.139(1)(a). We reverse and remand.
In a prior opinion, we affirmed the summary dismissal of plaintiff's case based on a theory of common law premises liability, but remanded for consideration of whether plaintiff should be allowed to amend her complaint to raise a statutory claim. See Stone v Boulder Creek Apartments, LLC, unpublished per curiam opinion of the Court of Appeals, issued October 31, 2017 (Docket No. 333355), p 3. On remand, the trial court allowed the amendment.
At the time of the incident, plaintiff was leasing an apartment from defendants. At approximately 11:00 a.m. on December 15, 2013, plaintiff was leaving her apartment building to go shopping. She took one step out the door of her building and encountered snow and ice that was completely covering the landing and 10 to 12 step stairway, which caused her to slip, fall, and then slide down each step until she landed at the bottom of the stairway. Plaintiff testified that she had only taken one step out the door and still had her hand on the doorknob when she lost her footing, but could not regain her footing before falling and then sliding down the stairs feet-first. Plaintiff lay on the ground at the bottom of the stairs with an injured ankle until her neighbor, 17-year-old Jordan Hunt (Hunt), heard her calling for help and came to her aid. Hunt assisted plaintiff back into her apartment building and called his mother, who then called building maintenance.
In her deposition, plaintiff was asked if she slipped on snow or ice, and she replied that she only saw snow, but there was "a lot of ice." Hunt testified that it had been "pretty snowy" and there was about four to six inches of snow on the ground. Hunt could see where plaintiff slid down the stairs because there was snow and ice on the stairway. And about 15 minutes after plaintiff had fallen, Hunt noticed that maintenance was approaching the building so he grabbed a cell phone and took a picture of the steps. He estimated that in the course of assisting plaintiff back into her apartment and then into the car to go to the hospital, he went up and down this same stairway four times within an hour of plaintiff's fall.
Defendants filed a motion for summary disposition under MCR 2.116(C)(10), arguing that "no reasonable person could conclude that the stairs and landing were not reasonably fit for their intended use at the time of the incident, notwithstanding the presence of snow and ice." Defendants argued that MCL 554.139(1)(a) did not require the landing and stairs at issue to be maintained in ideal condition; they merely had to be fit for ingress and egress. And they were. There was no hidden danger. In fact, Hunt had used the same stairs several times after plaintiff's fall without incident, which demonstrated that the stairs were useable for their intended purpose. Plaintiff responded, arguing that reasonable minds could differ regarding whether plaintiff or anyone could navigate the icy, snow-covered landing and stairs without falling. While Hunt used the same stairway, he did so after seeing that plaintiff had already fallen down those stairs.
The trial court disagreed with plaintiff. Given that Hunt had successfully used the stairs, the trial court concluded "that the stairs apparently were completely useable shall we say for the purpose intended which was to go up and down," and that "there's no evidence the stairs themselves were not fit for the purpose intended." Therefore defendants' motion for summary disposition was granted. This appeal followed.
Plaintiff argues that the trial court erred in determining that no genuine issue of material fact existed regarding whether the landing and stairway were fit for their intended use. We agree.
We review de novo a trial court's decision to grant a motion for summary disposition. Lakeview Commons v Empower Yourself, LLC, 290 Mich App 503, 506; 802 NW2d 712 (2010). A motion brought under MCR 2.116(C)(10) tests the factual support of a plaintiff's claim and should be granted if, after consideration of the evidence submitted by the parties in the light most favorable to the nonmoving party, no genuine issue regarding any material fact exists. Id.
MCL 554.139 states, in relevant part:
(1) In every lease or license of residential premises, the lessor or licensor covenants:There is no dispute in this case that the landing and stairway at issue were "common areas" within the meaning of the statute. And there is no dispute that the intended use of the exterior landing and stairway were to get into and out of the apartment building, including to the parking lot area. At issue is whether a reasonable person could conclude that the condition of the landing and stairway rendered them unfit for their intended use.
(a) That the premises and all common areas are fit for the use intended by the parties.
Defendants admitted that there was snow and ice on the landing and stairway, but argued that because Hunt went up and down the stairs several times after plaintiff's fall, they were fit for their intended use. Defendants never claimed that they performed any preventive maintenance to clear the landing and stairway of snow and ice on the day of this incident. That is, defendants never claimed to have shoveled or salted to remove the accumulations of snow and ice on this exterior landing and 10 to 12 step stairway, although it had snowed four to six inches and plaintiff did not fall until about 11 am. According to defendants, they did not have to shovel or salt this exterior landing and stairway for them to be considered fit for their intended use.
In O'Donnell v Garasic, 259 Mich App 569, 581; 676 NW2d 213 (2003), abrogated in part on other grounds by Mullen v Zerfas, 480 Mich 989 (2007), we held that the open and obvious doctrine did not apply to a defendant's statutory duty to maintain the premises in reasonable repair. Thus, if defendants breached their duty under MCL 554.139(1)(a), defendants would be liable even if it was obvious to plaintiff that the landing and stairway were snow-covered.
In Denton v Dart Properties, Inc, 270 Mich App 437, 443-444; 715 NW2d 335 (2006), we held that a landlord has a duty to remove ice from outdoor sidewalks located within an apartment complex because the intended use of a sidewalk is walking on it and a sidewalk covered with ice is not fit for walking. In Denton, the defendant actually took some preventative measures to address ice and snow accumulations, but there still remained a genuine issue of material fact whether the defendant's preventative measures constituted reasonable care considering the weather conditions. Id. at 444-445.
In this case, defendants do not dispute that they had a duty to take reasonable measures to ensure that the landing and stairway were fit for their intended use; but, they argue, even covered in snow and ice they were fit to use as evidenced by the fact that Hunt used the stairway without incident after plaintiff's fall. According to defendants' argument, landlords would never have to remove the accumulations of snow and ice from their common areas—including sidewalks and stairways—as long as a single person traversed the area without incident. But that position is unreasonable and untenable.
While it is true that MCL 554.139(1)(a) does not require perfect maintenance or that the common area at issue be in the most ideal condition, a landlord still must take reasonable measures to ensure that the common area is fit for its intended use. Benton, 270 Mich App at 444. In this case, defendants took no measures to remove the snow and ice from the exterior landing and stairway in an effort to ensure that they were fit for their intended use. Because of the depth of the snow on the landing and steps—4 to 6 inches—plaintiff could not see whether ice lay hidden beneath the snow. And the snow-covered landing and stairway posed an inordinate danger considering that it was a 10 to 12 step stairway. In fact, plaintiff testified that she still had her hand on the doorknob when she lost her footing, but because the landing was so slippery she could not regain her footing which led to her falling down and then sliding feet-first down the 10 to 12 steps to the bottom of the stairway. Clearly, the landing was especially slippery, as were the steps, and the conditions presented more than mere inconvenience; they were dangerous. If plaintiff wanted to leave her building, she would necessarily have to confront these dangers—not only on the landing, but on each of the 10 or 12 steps as she walked down the stairway.
See Allison v AEW Capital Mgt, LLP, 481 Mich 419, 430; 751 NW2d 8 (2008); Hadden v McDermitt Apartments, LLC, 287 Mich App 124, 130; 782 NW2d 800 (2010). --------
In Estate of Trueblood v P&G Apartments, LLC, 327 Mich App 275; 933 NW2d 732 (2019), this Court explicitly rejected the notion that one person's ability to traverse a common area is dispositive of fitness for intended use. As we explained in Trueblood, "[t]hat others had been able to walk on the sidewalk without incident might have suggested that the sidewalk was not completely covered in ice, but it might also have suggested that the others had been walking more carefully on the sidewalk because given that plaintiff had slipped, they were aware that the sidewalk was slippery." Id. at 292. Here, the trial court relied exclusively on evidence that Hunt was able to traverse the stairs on which plaintiff fell when it concluded that "there's no evidence the stairs themselves were not fit for the purpose intended." While it might be reasonable to infer that Hunt's use of the stairs demonstrated fitness for intended use, this is neither the only reasonable inference from his usage, nor is it drawn in favor of plaintiff. See Lakeview Commons, 290 Mich App at 506. Hunt did not attempt to use the stairs at issue until after plaintiff had fallen and may only have been able to successfully navigate them because, seeing that plaintiff fell, he knew they were slippery.
The legislature has directed that the provisions of this landlord-tenant statute are to be liberally construed. MCL 554.139(3). And in reviewing a trial court's decision on a motion for summary disposition under MCR 2.116(C)(10), we are to consider the evidence in the light most favorable to the non-moving party, drawing all reasonable inferences in favor of that nonmoving party—which is plaintiff in this case. See Joseph v Auto Club Ins Ass'n, 491 Mich 200, 206; 815 NW2d 412 (2012); Dextrom v Wexford Co, 287 Mich App 406, 415-416; 789 NW2d 211 (2010). "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." West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
Under the circumstances of this case, a question of fact exists regarding whether defendants breached their duty under MCL 554.139(1)(a) to maintain the landing and stairway in a manner that was fit for their intended use. Defendants presented no evidence showing that they took any action whatsoever to minimize the potential hazards of using the snow and ice covered landing and stairway for their intended purpose of entering and leaving the apartment building. Plaintiff has sufficiently raised a material question of fact because reasonable minds could conclude that the landing and stairway were in dangerous condition and unfit for use, denying tenants like plaintiff reasonable access to and from the apartment building. See Hadden, 287 Mich App at 132. Accordingly, we reverse the trial court's order granting defendants' motion for summary disposition and remand this case for further proceedings.
Reversed and remanded for further proceedings. We do not retain jurisdiction. Plaintiff is entitled to costs as the prevailing party. See MCR 7.219(A).
/s/ Thomas C. Cameron
/s/ Mark J. Cavanagh
/s/ Douglas B. Shapiro