Jeffrey-Moise v. Williamsburg Towne Houses Coop., Inc.

• Citation: 336 Mich.App. 616,971 N.W.2d 716
• Decision Date: 18 February 2021
• Docket Number: 351813
• Parties: Cynthia JEFFREY-MOISE, Plaintiff-Appellee, v. WILLIAMSBURG TOWNE HOUSES COOPERATIVE, INC., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

336 Mich.App. 616

971 N.W.2d 716

Cynthia JEFFREY-MOISE, Plaintiff-Appellee,

v.WILLIAMSBURG TOWNE HOUSES COOPERATIVE, INC., Defendant-Appellant.

No. 351813

Court of Appeals of Michigan.

Submitted February 2, 2021, at Detroit

Decided February 18, 2021

APPROVED FOR PUBLICATION April 1, 2021, 9:05 a.m.

Mike Morse Law Firm (by Marc J. Mendelson, Matthew R. Bates, Keith M. Banka, Southfield and Stacey L. Heinonen, Detroit) for Cynthia Jeffrey-Moise.

Fletcher Fealko Shoudy & Francis, PC, Port Huron (by William L. Fealko and Victoria R. Ferres ) and Pentiuk, Couvreur & Kobiljak, PC, (by Randall A. Pentiuk, Creighton D. Gallup, Wyandotte, and Alyssa M. Gunsorek) for Williamsburg Towne Houses Cooperative, Inc.

Before: Fort Hood, P.J., and Gadola and Letica, JJ.

Gadola, J. Defendant appeals on leave granted the order of the trial court denying its motion for summary disposition under MCR 2.116(C)(8) and (10) of plaintiff's claims of negligence and premises liability. We reverse and remand for entry of judgment in favor of defendant.

I. FACTS

This appeal arises from plaintiff's slip and fall on January 8, 2018. The facts underlying plaintiff's claim are essentially undisputed. On that day, plaintiff was a member and resident of defendant, Williamsburg Towne Houses Cooperative, Inc., a corporation operating a housing cooperative in St. Clair Shores, Michigan.

The housing cooperative is governed by its governing documents, being its Articles of Incorporation, Bylaws, and Occupancy Agreements. Each resident member of the cooperative purchases a membership in the cooperative and thereby enjoys the right to exclusively occupy a housing unit, as well as to use the common areas of the cooperative's premises. In addition, each member has the right to participate in the operation and management of the cooperative.

Plaintiff's Occupancy Agreement with defendant provided that plaintiff had the right to occupy a specific unit under the terms of the agreement for three years, renewable for successive three-year periods. The Occupancy Agreement further provided that defendant had the right to terminate plaintiff's membership upon notice to plaintiff four months before the expiration of the Occupancy Agreement. As a member of the cooperative, plaintiff could sell her membership interest or leave her membership interest to an heir through a will or trust only with the consent of the cooperative corporation. Similarly, plaintiff could sublet her individual unit only with the consent of the cooperative.

The Occupancy Agreement also required plaintiff to pay monthly fees to the cooperative for maintenance and administration of the cooperative. In addition, similar to a traditional landlord-tenant relationship, the cooperative could evict plaintiff if she breached the Occupancy Agreement. The Occupancy Agreement provides:

The Member expressly agrees that there exists under this occupancy agreement a landlord-tenant relationship and that in the event of a breach or threatened breach by the Member of any covenant or provision of this agreement, there shall be available to [defendant] such legal remedy or remedies as are available to a landlord for the breach or threatened breach under the law by a tenant of any provision of a lease or rental agreement.

On January 8, 2018, at 10:00 p.m., plaintiff cleared snow from her personal walkway in the back of her townhome and then walked around the building on the community walkway toward the front of her townhome, where she planned to clear snow from her front porch. While on the community walkway, plaintiff slipped and fell, severely injuring her ankle. Plaintiff testified that she fell on black ice that she described as being "the color of the sidewalk." She testified that before she fell she did not notice any ice on the walkway and that the walkway appeared only wet, but that after she fell she noticed what appeared to be patches of ice "all the way down" the walkway. She further testified that there was no snow on the walkway where she slipped and fell but that there was "lots of snow" on the grass.

Plaintiff's neighbor, Jennifer Jaber, stated that at approximately 10:00 p.m. on January 8, 2018, she saw plaintiff lying on the walkway. Jaber observed that in the area where plaintiff fell a patch of black ice spanned approximately 4 square feet. Jaber testified that the ice was not noticeable and looked like wet concrete. Jaber did not notice any deicer on the walkway where plaintiff fell. Defendant's snow-removal maintenance records for January 8, 2018, indicate that defendant's maintenance employees removed snow from streets and walkways within the housing cooperative between 7:30 a.m. and 2:30 p.m. that day, applying deicer to the walkways "where needed" during that period.

Plaintiff initiated this action, alleging in Count I of her complaint that defendant was liable under a theory of premises liability. Plaintiff asserted that as a tenant she was an invitee upon defendant's premises, that the icy condition of the sidewalk on which she slipped was not open and obvious, and that defendant had failed to keep the sidewalk fit for its intended use contrary to MCL 554.139. In Count II of her complaint, plaintiff alleged that defendant was liable under a theory of ordinary negligence, having breached its duty to use reasonable care and caution for her health, safety, and well-being, and to warn of dangerous conditions.

Defendant moved for summary disposition of plaintiff's complaint under MCR 2.116(C)(8) and (10). Defendant contended that plaintiff's claim of premises liability failed because plaintiff, as a co-owner of the cooperative, was not on the land of another when she was injured. Defendant further contended that plaintiff's claims failed because the ice on which plaintiff slipped was open and obvious and that plaintiff had not alleged a valid common-law negligence claim.

After a hearing, the trial court denied defendant's motion. The trial court concluded that MCL 554.139 applied because plaintiff did not have possession and control over the cooperative's common walkway and plaintiff's occupancy agreement established essentially a landlord-tenant relationship between the parties. The trial court further determined that a genuine issue of material fact existed regarding whether the condition on which plaintiff fell was open and obvious. Defendant sought leave to appeal in this Court, and this Court granted defendant's application.¹

II. ANALYSIS

Defendant contends that the trial court erred by denying its motion for summary disposition under MCR 2.116(C)(8) and (10). We agree.

A. STANDARD OF REVIEW

This Court reviews de novo a trial court's decision to grant or deny summary disposition. El-Khalil v. Oakwood Healthcare, Inc. , 504 Mich. 152, 159, 934 N.W.2d 665 (2019). A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of the complaint; we accept all well-pleaded factual allegations as true and construe them in a light most favorable to the nonmovant. Id. at 159-160, 934 N.W.2d 665. A motion for summary disposition under MCR 2.116(C)(8) is properly granted when, considering only the pleadings, the alleged claims are clearly unenforceable as a matter of law and no factual development could justify recovery. Id.

A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim. El-Khalil , 504 Mich. at 160, 934 N.W.2d 665. When reviewing an order granting summary disposition under MCR 2.116(C)(10), the reviewing court considers all documentary evidence submitted by the parties in the light most favorable to the nonmoving party. Id. Summary disposition under MCR 2.116(C)(10) is warranted when there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Id. "A genuine issue of material fact exists when the record leaves open an issue upon which reasonable minds might differ." Johnson v. Vanderkooi , 502 Mich. 751, 761, 918 N.W.2d 785 (2018) (quotation marks, citation, and brackets omitted). We also review de novo the interpretation of statutes, Cox v. Hartman , 322 Mich. App. 292, 298, 911 N.W.2d 219 (2017), and the trial court's determination whether a duty exists, Hill v. Sears, Roebuck & Co. , 492 Mich. 651, 659, 822 N.W.2d 190 (2012).

B. NEGLIGENCE

In her complaint, plaintiff asserts that defendant is liable under theories of both negligence and premises liability. Unlike a claim of premises liability, a claim of ordinary negligence is based on the underlying premise that a person has a duty to conform his or her conduct to an applicable standard of care when undertaking an activity. Lymon v. Freedland , 314 Mich. App. 746, 756, 887 N.W.2d 456 (2016). To establish a prima facie case of negligence, a plaintiff must demonstrate that (1) the defendant owed a duty to the plaintiff, (2) the defendant breached that duty, (3) the plaintiff suffered damages, and (4) the defendant's breach was a proximate cause of those damages. Composto v. Albrecht , 328 Mich. App. 496, 499, 938 N.W.2d 755 (2019). The threshold question in a negligence action is whether the defendant owed a legal duty to the plaintiff, Fultz v. Union-Commerce Assoc. , 470 Mich. 460, 463, 683 N.W.2d 587 (2004), which is a question of law to be decided by the court, Hill , 492 Mich. at 659, 822 N.W.2d 190. In a negligence action, if the plaintiff does not establish that the defendant owed the plaintiff a duty, summary disposition is properly granted to the defendant under MCR 2.116(C)(8). Halbrook v. Honda Motor Co., Ltd. , 224 Mich. App. 437, 441, 569 N.W.2d 836 (1997).

Michigan law distinguishes between a claim of ordinary negligence and a claim premised on a condition of the land. Lymon , 314 Mich. App. at 756, 887 N.W.2d 456. Whether the gravamen of an action sounds in negligence or in premises liability is determined by considering the plaintiff's complaint as a whole, regardless of the labels attached to the allegations by ...