Opinion
No. 346835
04-02-2020
NANCY ELLIS, Plaintiff-Appellant, v. MONARCH INVESTMENT & MANAGEMENT GROUP LLC doing business as KINGS GATE APARTMENTS. 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 UNPUBLISHED Macomb Circuit Court
LC No. 2017-009908-NO Before: BECKERING, P.J., and SAWYER and GADOLA, JJ. PER CURIAM.
In this action to recover damages for injuries suffered when she tripped and fell on a raised portion of the sidewalk outside her apartment building, plaintiff, Nancy Ellis, appeals as of right the trial court's order granting summary disposition to defendant, Monarch Investment & Management Group LLC, pursuant to MCR 2.116(C)(8) (failure to state a claim) and (C)(10) (no genuine issue of material fact). We affirm the trial court's order.
I. RELEVANT FACTS AND PROCEEDINGS
On February 1, 2017, just after 8:30 p.m., plaintiff was walking from her apartment at Kings Gate Apartment complex to the parking lot in front of her building when she tripped and fell on an uneven portion of the sidewalk. Plaintiff was injured in the fall, and in January 2018, she filed a three-count complaint against defendant, the property manager for the apartment complex, alleging premises liability, breach of the statutory covenants in MCL 554.139(1), and ordinary negligence.
The court dismissed the ordinary negligence claim, finding that the claim was grounded on a condition on the land, not an independent theory of liability based on defendant's conduct. Plaintiff does not appeal dismissal of this claim.
At her deposition, plaintiff testified that she had moved into the apartment building in September 2015. While living at the apartment complex, she walked her dog at least three times a day if she could. When asked if she had noticed the sidewalk defect where she tripped previously, plaintiff answered, "Probably at some point, yes." She testified that she had observed when she moved in that the sidewalks in the area were in bad shape, but she had not reported them to anyone. On the day of the incident, it was wet and cold outside, but there was no snow or ice on the sidewalk. She indicated that she was undistracted as she walked down the sidewalk leading from her building to the spot in the parking lot where she usually parked. She was wearing her glasses and her view was unobstructed, but she was not looking down at the sidewalk. She tripped on the last sidewalk slab before the sidewalk running from her building connected to the perpendicular sidewalk that ran along the parking lot. Asked whether there was a light on the exterior of her building, she answered affirmatively. Asked if there were lights in the parking lot, she said, "no," but then clarified that lamp posts were randomly placed on the property. Asked if there was a lamp post near the sidewalk where she fell, she said no, although she also testified that the person with whom she was leaving the complex saw her fall. Plaintiff had never tripped at that spot before, nor had she seen anyone else trip.
Following discovery, defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and (C)(10). Defendant asserted that it did not breach the statutory duties it owed plaintiff under MCL 554.139(1) because the sidewalk was fit for walking, § 139(1)(a), and § 139(1)(b) did not apply to common areas, such as the sidewalk. Defendant further asserted that it did not owe plaintiff a duty because the condition of the sidewalk was open and obvious and the hazard was not unreasonably dangerous. In her opposition brief, plaintiff raised an issue with the adequacy of the lighting on the night she tripped. In its reply brief, defendant pointed out that plaintiff had not alleged in either her complaint or her deposition that the lighting was inadequate near the place where she fell, and it asserted that there was no evidence the lighting was inadequate.
After a hearing on defendant's motion, the trial court issued a written opinion and order concluding that the hazard posed by the uneven sidewalk slab, which appeared to be between one and a half to two inches where plaintiff fell, according to plaintiff's photographs, was open and obvious and not unreasonably dangerous. Thus, the trial court dismissed plaintiff's premises liability claim. The trial court further concluded that plaintiff had not submitted evidence to support her contention that the sidewalk was unfit for walking, § 139(1)(a), and that § 139(1)(b) was inapplicable to common areas, and thus it dismissed plaintiff's claim predicated on MCL 554.139(1).
II. DISCUSSION
Plaintiff contends that the trial court erred by dismissing her premises liability claim because the danger posed by the uneven pavement was not open and obvious; the inadequacy of lighting at the time and place of plaintiff's accident rendered the sidewalk defect undetectable upon casual inspection. Plaintiff also contends that the trial court erred in dismissing her claim predicated on breach of the covenants in MCL 554.139(1). This Court reviews de novo a trial court's decision on a motion for summary disposition. Bailey v Schaaf, 494 Mich 595, 603; 835 NW2d 413 (2013).
Defendant moved for summary disposition under MCR 2.116(C)(8) and (C)(10). A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone, Bailey, 494 Mich at 603, and may not be supported with documentary evidence, Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994). A motion under MCR 2.116(C)(10)
tests the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. [Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999).]
A. PREMISES LIABILITY
In a premises liability action, the plaintiff must prove that the defendant owed the plaintiff a duty, that defendant breached that duty, that the breach was a proximate cause of the plaintiff's injury, and that plaintiff suffered damages. Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 693; 822 NW2d 254 (2012). The parties dispute the element of duty.
As a tenant of the apartment complex, plaintiff was an invitee. See Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 604; 614 NW2d 88 (2000) (categorizing tenants as invitees). A premises possessor owes an invitee a duty "to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land . . . ." Lugo v Ameritech Corp, Inc, 464 Mich 512, 516, 517; 629 NW2d 384 (2001). Liability may arise "for a breach of this duty of ordinary care when the premises possessor 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." Hoffner v Lanctoe, 492 Mich 450, 460; 821 NW2d 88, 94 (2012). "However, liability does not arise for open and obvious dangers unless special aspects of a condition make even an open and obvious risk unreasonably dangerous." Id. at 455. "The possessor of land owes no duty to protect or warn of dangers that are open and obvious because such dangers, by their nature, apprise an invitee of the potential hazard, which the invitee may then take reasonable measures to avoid." Id. at 460-461 (quotation marks and citation omitted). "[N]either a common condition nor an avoidable condition is uniquely dangerous." Id. at 463.
At issue is whether the trial court erred by concluding as a matter of law that defendant did not have a duty to protect plaintiff from the risk of harm posed by the uneven sidewalk slabs because the danger was open and obvious. A danger is open and obvious when "an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection." Novotney v Burger King, 198 Mich App 470, 475; 499 NW2d 379 (1993). "This is an objective standard, calling for an examination of the objective nature of the condition of the premises at issue." Hoffner, 492 Mich at 461 (quotation marks and citation omitted). Thus, a particular plaintiff's failure to see the condition is not dispositive. A trial court's focus is on "whether a reasonable person in the plaintiff's position would have foreseen the danger." Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 478-479; 760 NW2d 287 (2008).
Photographic evidence indicates that the danger posed by the uneven sidewalk slabs was open and obvious. Photographs show that the left corner of the second-to-last concrete slab in the short sidewalk leading from the entrance of plaintiff's apartment building to a perpendicular sidewalk that ran adjacent to the parking lot sinks down a bit, thus creating a discontinuity between it and the last slab before the perpendicular sidewalk. The discontinuity between the slabs runs from left to right, starting at what appears to be a couple of inches or less and decreasing as it goes. As the trial court noted, the area where plaintiff tripped, which had later been spray painted orange in photographs, was somewhere between one and a half to two inches. The clear visibility of the slightly sunken corner of the slab suggests that a reasonable person would have observed upon casual inspection the potential tripping hazard it posed.
In addition, there is no evidence that the slightly sunken portion of the sidewalk was unreasonably dangerous or unavoidable. Photographs show that the height discontinuity was such that one could step over or around the worst part of it; thus, the risk was avoidable. Further, uneven sidewalk slabs are a relatively common occurrence, and "neither a common condition nor an avoidable condition is uniquely dangerous." Hoffner, 492 Mich at 463.
In addition, plaintiff's testimony indicates that she was aware of the sunken slab and of the danger it presented. See Hoffner, 492 Mich at 460 (noting that liability arises when a premises possessor knows of a dangerous condition of which the invitee is unaware and fails to fix the defect or warn the invitee) (emphasis added). Plaintiff testified at her deposition that she typically walked her dog three times a day, in addition to other comings and goings, and that she usually parked in the same spot each time in the apartment parking lot. Walking her dog and going to her car would have required her to frequently encounter and avoid the risk posed by the discontinuity between the sidewalk slabs. Plaintiff said she had lived in her apartment building since September 2015, had noticed the condition of the sidewalks in the complex, and had probably noticed the uneven slabs where she fell prior to the date of her accident. Plaintiff's undisputed awareness of the condition of the sidewalk weighs against making defendant liable for injuries arising from the condition. Id.
Plaintiff contends that her deposition testimony provided the only evidence regarding the visibility of the defect, and that she testified, "in substance, that she was paying attention, yet couldn't see the defect upon casual inspection." To the contrary, although her testimony established that she was not distracted while she was walking to the parking lot, it does not establish that the risk posed by the defect was not visible. Plaintiff did not testify that she was unable see the defect; she testified that she was not looking at the sidewalk as she walked. Not looking at the sidewalk is not the same thing as casually looking but not being able to see the defect in the sidewalk. Moreover, the proper inquiry is not whether plaintiff saw the hazard, but whether an average user of ordinary intelligence would have observed the defect on casual inspection. See Slaughter, 281 Mich App at 478-479. Plaintiff's testimony does not create a genuine issue of material fact as to the open and obvious nature of the defect.
Plaintiff also contends that the danger of the defective sidewalk was not visible on casual inspection because it was dark and the lighting was inadequate. Lighting can be a factor for a trial court to consider when determining whether to grant a dispositional motion when there is sufficient testimonial evidence about the quality of the lighting and its effect on the open and obvious nature of the danger. See, e.g., Blackwell v Franchi (On Remand), 318 Mich App 573, 577; 899 NW2d 415 (2017) (where the plaintiff testified, and presented affidavits from other witnesses, that the drop-off to the mudroom into which the plaintiff fell was not visible upon casual inspection at the time of her accident because the mudroom was dark and the height differential was not visible; Abke v Vandenburg, 239 Mich App 359; 608 NW2d 73 (2000) (where both parties presented considerable evidence at trial regarding the extent to which a loading dock was illuminated and whether the illumination that existed was sufficient to make the danger of falling from the loading dock into an adjacent truck bay open and obvious). However, while plaintiff answered questions regarding the lighting at her deposition, she did not testify that the lighting was inadequate, nor did she testify that the lighting conditions caused her to be unable to see the defect. The fact that the person she was leaving the complex with saw her fall implies that the lighting was adequate. With no evidence indicating that inadequate lighting was a factor, the trial court did not err in concluding that the dangerous condition posed by the defective sidewalk was open and obvious.
The evidence submitted to the trial court allows for no genuine issue of material fact with respect to whether the sidewalk condition was open and obvious, and thus, we conclude that the trial court correctly granted defendant's motion for summary disposition of plaintiff's premises liability claim pursuant to MCR 2.116(C)(10).
B. STATUTORY COVENANTS IN MCL 554.139(1)
MCL 554.139(1) sets forth the following relevant covenants that are part of every lease or license of residential premises:
(1) In every lease or license of residential premises, the lessor or licensor covenants:" '[T]he open and obvious danger doctrine is not available to deny liability" for a statutory violation under MCL 554.139(1).' Estate of Trueblood v P&G Apartments, LLC, 327 Mich App 275, 289; 933 NW2d 732 (2019), quoting Benton v Dart Prop, Inc, 270 Mich App 437, 441; 715 NW2d 335 (2006).
(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 wilful or irresponsible conduct or lack of conduct.
Plaintiff first argues that whether the sidewalk was fit for its intended purpose, as required by § 139(1)(a), is a disputed issue of fact that should be submitted to the jury. Plaintiff's argument fails for lack of supporting evidence.
In determining whether to impose liability under § 139(1)(a), a court must first determine whether the area is a common area, then determine the intended use of the common area, and, finally, "determine if there could be reasonable differences of opinion regarding whether the conditions made the common area unfit for its intended use." Trueblood, 327 Mich App at 289, citing Allison v AEW Capital Mgt, LLP, 481 Mich 419, 427-431; 751 N.W.2d 8 (2008). The parties do not dispute that the sidewalk at issue is a common area and that its intended use is for walking. Their dispute revolves around whether reasonable minds could differ as to whether the defect in the sidewalk rendered the common area unfit for walking.
In Allison, our Supreme Court held that one or two inches of snow did not render a parking lot unfit for its intended use. The Court noted that under "much more exigent" circumstances, a defendant might have a duty under § 139(1)(a) to remove accumulations of snow and ice in a parking lot. But "[m]ere inconvenience of access" did not "defeat the characterization of a lot as being fit for its intended purposes." Allison, 481 Mich at 430. In Benton, this Court held that "a sidewalk covered with ice is not fit for" its intended purpose, and because the plaintiff had presented testimony from tenants that the defendant had not taken measures to remove accumulated snow and ice from the sidewalks, the trial court erred in granting the defendant's motion for summary disposition. Benton, 270 Mich App at 444. Finally, in Hadden v McDermitt Apartments, LLC, 287 Mich App 124; 782 NW2d 800 (2010), this Court concluded that the plaintiff had presented sufficient evidence to create a genuine issue of material fact that her apartment building's exterior stairway was unfit for its intended purpose. Hadden, 287 Mich App at 131. This Court determined that reasonable minds could conclude that the presence of black ice on a darkly lit stairway presented a hidden danger that rendered the stairway unfit for its intended purpose of providing the plaintiff with reasonable access to and from her apartment. Id. at 132. In reaching this conclusion, this Court indicated that a common area need not be perfectly maintained or in ideal condition to be fit for its intended use. Id. at 130.
Applying the foregoing principles to the present case, the question is whether the section of uneven cement was more than a "mere inconvenience" that rendered the sidewalk unfit for walking. See Allison, 481 Mich at 430; Hadden, 287 Mich App at 132. We conclude that it was not.
Plaintiff asserts that the sidewalk was unfit for walking because the lighting was inadequate and the concrete was uneven. As already discussed, the record does not indicate that the lighting was inadequate or that inadequate lighting contributed to the sidewalk's unfitness for walking. The record also does not support the assertion that the unevenness of the pavement rendered it unfit for walking. Much of plaintiff's testimony indicated that she had regularly negotiated the uneven concrete without incident. She had lived in the complex for nearly 1 ½ years and had routinely walked her dog and parked her car directly outside her building, both of which required her to confront the sidewalk at issue. Plaintiff reported that she had never tripped and fallen over the uneven slabs, nor had she seen or heard of anyone doing so. Plaintiff provided no affidavits from other residents indicating that they avoided the sidewalk because it was unusable. All of this suggests that, as inconvenient as the unevenness of the pavement may have been, it did not render the sidewalk unfit for walking.
Next, the parties dispute whether defendant's duty under § 139(1)(b) to comply with the applicable health and safety laws of the state and local government applies to common areas. It does. In Trueblood, 327 Mich App at 295, this Court held that "a landlord's covenant to comply with local health and safety laws is distinct from its covenant to make reasonable repairs." Trueblood, 327 Mich App at 295. Thus, while the covenant to make reasonable repairs expressed in the first part of § 139(1)(b) does not extend to common areas, Allison, 481 Mich at 432, the covenant to comply with state and local health and safety expressed in the second part of § 139(1)(b) (i.e., after the conjunction "and") does apply to common areas, Trueblood, 327 Mich App at 295. Although the trial erroneously concluded that none of § 139(1)(b) applied to common area, we nevertheless affirm the trial court's order because Sterling Heights city ordinance 48-6 and the Sterling Heights sidewalk policy do not apply to the sidewalk at issue. See Gleason v Dep't of Transp, 256 Mich App 1, 3; 662 NW2d 822 (2003) (indicating that this Court will affirm a trial court's correct result, even if the court reached it for the wrong reason).
Plaintiff represents that Sterling Heights city ordinance 48-6(I) requires that "[a]ll sidewalks within the city shall be kept and maintained in good repair by the owner of the property adjacent to and abutting upon the same." While this much is true, that is not all the ordinance requires. Quoting the provision in its entirety shows that the provision does not address defendant's responsibility to maintain the sidewalks within its complex, but the responsibility of owners of property adjacent to or abutting city sidewalks to keep and maintain those sidewalks in good repair. The entire provision states:
(I) All sidewalks within the city shall be kept and maintained in good repair by the owner of the property adjacent to and abutting upon the same. Whenever a City Engineer determines that a sidewalk is unsafe, he or she shall cause written notice thereof to be given by first class mail to the owner of abutting property as determined by the tax rolls. If any owner shall neglect to keep and maintain in good repair the sidewalk adjacent and abutting upon his or her property, then the owner shall be liable to the city for any damages recovered against the city sustained by any person by reason of the sidewalk being unsafe and in a state of disrepair.
The last sentence of this provision makes clear that the provision sets forth the responsibilities of property owners for city sidewalks adjacent to or abutting their property. It anticipates that the city will be the defendant in any lawsuit seeking damages for injuries arising from the unsafe condition of a sidewalk, and that the owner of property adjacent to or abutting that unsafe sidewalk, whose responsibility it was to keep that sidewalk in good repair, will then be liable to the city for any damages recovered. Further evidence that the "Streets and Sidewalks" section of the city's ordinances applies to city sidewalks are the numerous provisions setting forth the authority of the City Council to, among other things, "order the construction, reconstruction[,] or repair of sidewalks in any designated area within the city . . ." (section C), determine how such activities will be paid for (sections D and H), and require "owners of lots and premises to construct, reconstruct[,] or repair" sidewalks adjacent or abutting their lots or premises (section E).
The photographs of the subject sidewalk show that it is an interior sidewalk leading from one of the apartment buildings to the parking lot in front of the building, not a city sidewalk adjacent to or abutting the property managed by defendant. Accordingly, section 48-6 of the Sterling Heights city ordinances is inapplicable to the facts of this case.
Plaintiff also contends that defendant breached its duty to comply with "replacement criteria guidelines" and "maintenance responsibility" provisions of Sterling Heights' sidewalk policy. However, plaintiff's argument regarding the sidewalk policy fails for the same reason that her argument relative to section 48-6(I) failed: the sidewalk policy does not pertain to the sidewalk at issue. The sidewalk policy addresses, among other things, the procedures for inspecting and the criteria for selecting which public sidewalks require replacement or repair, what costs the homeowner will pay and what costs the city will pay, the warranty for any replaced or repaired sidewalks, maintenance responsibilities, and the physical criteria for sidewalks (dimensions, clearance, etc.). Viewed in the context of the entire policy, the provisions plaintiff cites clearly pertain to the selection criteria used to determine which city sidewalk areas to replace and to a property owner's responsibility to maintain public sidewalks adjacent to their property and to report any defects to the Office of Public Works. Thus, the sidewalk policy is inapplicable to the sidewalk at issue, and defendant did not breach § 139(1)(b) by failing to inform the Office of Public Works about the condition of the sidewalk.
Based on the foregoing, we conclude that the trial court did not err in granting defendant's motion for summary disposition of plaintiff's claim that defendant breached the statutory covenants set forth in MCL 554.139(1).
Affirmed.
/s/ Jane M. Beckering
/s/ David H. Sawyer
/s/ Michael F. Gadola