DeGennaro v. Rivet Holdings Inc.
| Decision Date | 26 August 2021 |
| Docket Number | 354054 |
| Parties | LAWRENCE DeGENNARO, Plaintiff-Appellant, v. RIVET HOLDINGS INC, WAVELAND PROPERTY MANAGEMENT LLC, and BIRCH CREEK CONDOMINIUMS ASSOCIATION INC, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Kent Circuit Court LC No. 2019-005028-NO
Before: Ronayne Krause, P.J., and Beckering and Boonstra, JJ.
Plaintiff Lawrence DeGennaro, appeals by right the trial court's order granting summary disposition in favor of defendants Rivet Holdings, Inc ("Rivet"), Waveland Property Management, LLC ("Waveland"), and Birch Creek Condominiums Association, LLC ("the Association"). This matter arises out of injuries plaintiff sustained when he slipped and fell on ice at the end of his driveway. We affirm in part, reverse in part, and remand for further proceedings.
Plaintiff leases a unit in the Birch Creek Condominium complex. The unit is owned by Rivet, which also owns ten out of the fourteen total units in the complex. Rivet is solely owned by Douglas Geerlings, who seemingly also essentially runs the Association by virtue of Rivet's majority ownership of the units. Waveland is retained by Rivet to act as the landlord for the units Rivet owns. The condominium units are arranged around a cul-de-sac road, Birch Creek Court, and from there are only accessible over their driveways. Although the units have sidewalks running from their front doors to their driveways, there are no other sidewalks in the complex. The driveways are considered a "Limited Common Element" pursuant to the complex map attached to the Birch Creek Condominiums Master Deed.
The Birch Creek Condominium Association is responsible for snowplowing Birch Creek Court and all units' driveways but the individual owners and tenants are responsible for shoveling snow from the sidewalks. The Association retained Hoffman Lawn Care to remove snow from the road and the driveways. The tenants who occupied Rivet's units were instructed to contact Waveland if the tenant had any problem with snow or ice, and Waveland would then contact Geerlings. Geerlings and Kimberly Raak, an employee with Waveland who was seemingly the Birch Creek tenants' primary point of contact with Waveland, testified that neither had received any complaints about snow and ice removal before February 2019, but plaintiff testified that he had made numerous complaints because his driveway was not plowed. Another tenant in the complex testified that snow and ice removal was initially not a problem when she moved in, but it got gradually worse over time. Plaintiff, who was 65 years old when the fall occurred, explained that "[w]e just started doing it ourselves." Generally, plaintiff would personally shovel the driveway and then apply salt, based on a visual inspection for whether the surface looked icy.
On February 15, 2019, plaintiff woke up at 3:00 a.m., as was usual, noted that it was not snowing, and learned from the television news that the temperatures were expected to drop throughout the day. Plaintiff had put some salt on his driveway the previous day, February 14, 2019, but "the plow had dragged back and they don't clear it all the way, they just smear it and it was packed down pretty hard." Plaintiff had noted on the 14th that the salt had only been partially effective, because the ice had melted and then refrozen because the temperatures were dropping. Therefore, he knew that night that his driveway was still partially icy. However, on the morning of the 15th, when plaintiff left at about 4:00 a.m., the ice appeared to be melting. There was still some snow and ice on the driveway, and the driveway "looked wetter." Plaintiff admitted he knew that the projected decreasing temperatures on the 15th could cause the meltwater on his driveway to refreeze. However, he emphasized that he did not know how long he would be out, so he did not know whether he would need to work on the driveway personally or whether the plow company would be through. He nevertheless agreed that he had no expectation that anyone else would come and maintain his driveway that day.
Plaintiff returned home "somewhere close to noon." As he returned home, he noticed that the street was "hard ice" because the dropping temperatures had refrozen anything that had melted, including tire tracks. There had been no fresh snowfall, but the roads had been slushy in the morning and were now frozen to hard ice. He observed that his driveway was "more frozen" and not obscured by any snow, and he agreed that based on his experience, he knew it would be icy. Plaintiff pulled into his garage and was going to retrieve his groceries from the trunk of his car. However, his neighbor "straight across" Birch Creek Court yelled at him from the end of her driveway that she had locked her keys in her running car. Plaintiff happened to have a "Slim Jim" device for opening locked cars in his garage, which he found after approximately ten minutes of looking.
Plaintiff agreed that at that time, he was aware that his driveway was covered in ice and that he could have salted it. Plaintiff observed that his driveway was completely frozen over, but that his driveway was the only way to get out. Although some patches of the driveway were covered with packed snow, he knew there "could be ice under the parts that are packed too." Plaintiff did not tell his neighbor that he could not help her due to the dangerousness of his driveway. Plaintiff also made no attempt to remove the snow and ice from his driveway. Plaintiff agreed that he voluntarily traversed the driveway despite knowing that it was hazardous, and he was not obligated to walk down his driveway. Although there was grass next to a portion of his driveway, he explained that it was impossible to get to the road without walking across either his or a neighbor's driveway because the driveways intersected. We note that plaintiff's contention is supported by the map of the complex attached to the Master Deed. Plaintiff carefully walked almost to the end of his driveway when he abruptly "slid up in the air" and landed on the ground. Plaintiff agreed that the driveway was obviously covered by snow and ice, and he was not surprised to discover ice at the end of his driveway. Plaintiff's neighbor testified that her driveway was also covered in snow and ice, and the road was even worse. Plaintiff suffered serious injuries to his ankle and leg.
Plaintiff commenced this action on June 13, 2019, approximately four months after the fall, initially naming only Rivet and Waveland as defendants. The parties quickly stipulated to add the Association. Plaintiff alleged theories of premises liability and violation of MCL 554.139[1] by failing to provide proper snow removal and salting services. Each of the defendants moved for summary disposition, which the trial court ultimately granted as to all claims solely on the ground that plaintiff had admitted the hazardous ice on his driveway to have been open and obvious, and the hazard was neither unreasonably dangerous nor effectively unavoidable. This appeal followed.
A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich. 109, 118; 597 N.W.2d 817 (1999). All three defendants moved for summary disposition pursuant to MCR 2.116(C)(10), and the Association also moved for summary disposition pursuant to MCR 2.116(C)(8). The trial court did not identify which subrule was the basis for its grant of summary disposition, but because it clearly considered evidence outside the pleadings, it is presumed to have granted summary disposition pursuant to MCR 2.116(C)(10). Hill v Sears, Roebuck and Co, 492 Mich. 651, 659 n 15; 822 N.W.2d 190 (2012). When reviewing a motion under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all evidence submitted by the parties in the light most favorable to the non-moving party and grants summary disposition only where the evidence fails to establish a genuine issue regarding any material fact. Maiden, 461 Mich. at 120. The interpretation and application of statutes, rules, and legal doctrines is reviewed de novo. Estes v Titus, 481 Mich. 573, 578-579; 751 N.W.2d 493 (2008). Appellate courts will affirm a right result arrived at on the basis of wrong reasoning. Kirl v Zinner, 274 Mich. 331, 336; 264 N.W. 391 (1936); Fox v Roethlisberger, 350 Mich. 1, 4; 85 N.W.2d 73 (1957); Mulholland v DEC Internat'l Corp, 432 Mich. 395, 411 n 10; 443 N.W.2d 340 (1989).
Plaintiff first argues that the trial court erred in granting summary disposition as to his statutory claims. We agree in part.
Pursuant to MCL 554.139, landlords are obligated "to keep the premises and common areas fit for their intended use and to keep the premises in reasonable repair." Allison v AEW Capital Mgmt, LLP, 481 Mich. 419, 425; 751 N.W.2d 8 (2008). The statute specifically provides, in its entirety:
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