Benton v. Dart Properties

Decision Date28 March 2006
Docket NumberDocket No. 256465.
Citation715 N.W.2d 335,270 Mich. App. 437
PartiesBradley S. BENTON, Plaintiff-Appellant, v. DART PROPERTIES INCORPORATED, Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

Carolan & Carolan, P.C. (by Richard J. Carolan), St. Clair Shores, for the plaintiff.

Gregory and Meyer, P.C. (by Corinne F. Shoop and Paul J. Ellison), Troy, for the defendant.



Plaintiff appeals as of right an order granting summary disposition in favor of defendant. The issue raised by plaintiff in this matter is whether the affirmative duty imposed on a landlord pursuant to MCL 554.139(1)(a), to maintain interior sidewalks in an apartment complex in a condition fit for the use intended, can be circumvented by the open and obvious danger doctrine. We hold that the open and obvious danger doctrine cannot bar a claim against a landlord for violation of the statutory duty to maintain the interior sidewalks in a condition fit for the use intended under MCL 554.139(1)(a). Accordingly, we reverse the decision of the trial court and remand this matter for trial.

This case arose when plaintiff slipped and fell on an icy sidewalk at Oak Hill Apartments, which was owned and maintained by defendant. Plaintiff, a resident of the apartment complex, slipped and fell while he was walking from his apartment to a parking space in the apartment complex on March 12, 2003. Plaintiff testified at his deposition that he had seen ice on some of the complex's sidewalks when he left for work that morning at 6:15 a.m. and that the ice was "patchy," so he tried to avoid any icy spots as he walked. He further testified that when he returned home from work at about 6:00 p.m., he noticed that the sidewalks were covered with snow. According to plaintiff, later that evening he walked to a different car than the one he had taken to work earlier in the day, thereby causing him to take a different route than the one he had taken previously. He testified that it was dark outside. Although the apartment complex had some lights, there were no lights along the sidewalk where he fell. He stated that he walked cautiously because of the snow, but did not have any problems slipping or falling until both legs "shot" to his right and he fell onto his left leg and ankle. He looked down and saw that he was sitting on a patch of ice, which he believed was about four to five feet long. Plaintiff claims that as a result of the fall, he suffered injuries and losses, consisting of a severely fractured leg, ongoing pain, disabilities, medical expenses, and lost wages.

Following his slip and fall, plaintiff brought a two-count complaint in the Macomb Circuit Court alleging that defendant violated the statutory duty to maintain common areas in a manner fit for the use intended under MCL 554.139(1)(a). He also alleged that defendant did not take reasonable measures to diminish the danger of injury to plaintiff and similarly situated persons under general negligence law because defendant failed to remove snow and ice on the sidewalk in a timely manner. Plaintiff alleged that because defendant had violated a statutory duty, the open and obvious danger doctrine did not apply. The trial court disagreed and granted defendant's motion for summary disposition. In granting defendant's motion for summary disposition, the trial court asserted that the facts of O'Donnell v. Garasic, 259 Mich.App. 569, 676 N.W.2d 213 (2003), were distinguishable from the facts in the present case and concluded that because the sidewalk in this case was located outdoors rather than indoors and because there were no alleged violations of building codes, O'Donnell did not apply.

We review de novo a trial court's decision to grant or deny summary disposition. Mouradian v. Goldberg, 256 Mich.App. 566, 570, 664 N.W.2d 805 (2003). In addition, issues concerning the interpretation of a statute are questions of law that we review de novo. Dressel v. Ameribank, 468 Mich. 557, 561, 664 N.W.2d 151 (2003).

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. Taylor v. Laban, 241 Mich.App. 449, 452, 616 N.W.2d 229 (2000). The duty that a landlord owes a plaintiff depends on the plaintiff's status on the land. Stitt v. Holland Abundant Life Fellowship, 462 Mich. 591, 596, 614 N.W.2d 88 (2000). 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. Id. at 604, 614 N.W.2d 88; Stanley v. Town Square Coop., 203 Mich.App. 143, 149, 512 N.W.2d 51 (1993). An owner "owes a duty to an invitee 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, 629 N.W.2d 384 (2001). Absent special aspects, this duty generally does not require the owner to protect an invitee from open and obvious dangers. Id. at 517, 629 N.W.2d 384. However, in O'Donnell, this Court held that the open and obvious danger doctrine is not available to deny liability when the defendant has a statutory duty to maintain the premises in reasonable repair:

The open and obvious danger doctrine is not available to deny liability to an injured invitee or licensee on leased or licensed residential premises when such premises present a material breach of the specific statutory duty imposed on owners of residential properties to maintain their premises in reasonable repair and in accordance with the health and safety laws, as provided in MCL 554.139(1)(a) and (b). [O'Donnell, supra at 581, 676 N.W.2d 213.]

In light of O'Donnell, if defendant breached its duties under MCL 554.139, defendant would be liable to plaintiff even if the ice on the sidewalk was open and obvious. We therefore begin our analysis by addressing whether MCL 554.139 imposes a duty on defendant to remove ice from the interior sidewalks located within an apartment complex.1

MCL 554.139 provides in pertinent part:

(1) 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.

* * *

(3) The provisions of this section shall be liberally construed. . . . [Emphasis added.]

When construing a statute, the primary goal is to give effect to the intent of the Legislature, and the first step is to review the language of the statute. Cain v. Waste Mgt., Inc. (After Remand), 472 Mich. 236, 245, 697 N.W.2d 130 (2005). Statutory language should be construed reasonably, keeping in mind the purpose of the act. People v. Spann, 250 Mich.App. 527, 530, 655 N.W.2d 251 (2002), aff'd 469 Mich. 904, 668 N.W.2d 904 (2003). Words shall be construed according to their common meanings unless they are technical terms that have acquired peculiar meanings. MCL 8.3a; Cain, supra at 245, 697 N.W.2d 130. The omission of a provision from one part of a statute when it is included in another part should be construed as intentional. Farrington v. Total Petroleum, Inc., 442 Mich. 201, 210, 501 N.W.2d 76 (1993). If the language of the statute is unambiguous, the Legislature is presumed to have intended the meaning it plainly expressed, and no further judicial construction is permitted. Pohutski v. City of Allen Park, 465 Mich. 675, 683, 641 N.W.2d 219 (2002).

Thus, in ascertaining whether outdoor sidewalks located within an apartment complex constitute "common areas" under MCL 554.139, we analyze the plain language of the statute. Examining the plain language of MCL 554.139, we conclude that the sidewalks located within an apartment complex constitute "common areas." In so concluding, we are mindful of the statute's mandate that its provisions be construed liberally, MCL 554.139(3). The basis for our conclusion is as follows. First, sidewalks such as the one in question are located within the parameters of the apartment structure. They are constructed and maintained by the landlord or those in the landlord's employ. Second, sidewalks leading from apartment buildings to adjoining parking lots are common areas for tenants because all tenants who own and park their vehicles in the spaces allotted to them by their landlord rely on these sidewalks to access their vehicles and apartment buildings. Additionally, any person residing in an apartment complex must utilize the...

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