Woodard v. Erp Operating Ltd. Partnership

• Citation: 351 F.Supp.2d 708
• Decision Date: 13 January 2005
• Docket Number: No. 04-70050.,04-70050.
• Parties: Gerald WOODARD, Plaintiff, v. ERP OPERATING LIMITED PARTNERSHIP, an Illinois Limited Partnership, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

351 F.Supp.2d 708

Gerald WOODARD, Plaintiff, v. ERP OPERATING LIMITED PARTNERSHIP, an Illinois Limited Partnership, Defendant.

No. 04-70050.

United States District Court, E.D. Michigan, Southern Division.

January 13, 2005.

COPYRIGHT MATERIAL OMITTED

Christopher J. Hastings, Berkley, MI, for Plaintiff.

Paul S. Koczkur, Lupo & Koczkur, Detroit, MI, for Defendant.

AMENDED MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

¹

COHN, District Judge.

I. Introduction

This is a tort case. Plaintiff Gerald Woodard (Woodard) is suing Defendant Equity Operating Limited Partnership (Equity) for injuries Woodard allegedly sustained after slipping and falling on black ice at one of Equity's apartment complexes.

Before the Court is Equity's Motion for Summary Judgment. For the reasons that follow, the motion is DENIED.

II. Background

On the night of January 29, 2002, Woodard traveled to The Pines of Cloverlane Apartments (The Pines) in Ypsilanti, Michigan, an apartment complex owned by Equity. Woodard was going to The Pines to visit his friend Nathan Kline (Kline) who lived at 4795 Gatewood Circle. When he arrived at Kline's residence, Woodard walked across a grass area adjacent to the sidewalk to reach the common entrance to 4795 Gatewood Circle. At approximately 4:00 a.m. on January 30, 2002, Woodard and another friend exited Kline's apartment to retrieve some compact discs from their cars. Woodard again walked across the grass area adjacent to the sidewalk to reach his car. After retrieving the compact discs from his car, Woodard walked on the sidewalk back to the apartment entrance. Before he reached the entrance, however, Woodard slipped and fell on a patch of ice in an area of the sidewalk that had cracked and broken concrete. Woodard says that the fall caused him to suffer a fractured ankle and a post-surgical infection that compounded his injury.

III. Discussion

A. Legal Standard

1. Summary Judgment

Summary judgment will be granted when the moving party demonstrates that there is "no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED.R.CIV.P. 56(c). There is no genuine issue of material fact when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The nonmoving party may not rest upon his pleadings; rather, the nonmoving party's response "must set forth specific facts showing that there is a genuine issue for trial." FED.R.CIV.P. 56(e). Showing that there is some metaphysical doubt as to the material facts is not enough; "the mere existence of a scintilla of evidence" in support of the nonmoving party is not sufficient to show a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Rather, the nonmoving party must present "significant probative evidence" in support of its opposition to the motion for summary judgment in order to defeat the motion. See Moore v. Philip Morris Co., 8 F.3d 335, 340 (6th Cir.1993); see also Anderson, 477 U.S. at 249-50, 106 S.Ct. 2505.

The Court must decide "whether the evidence presents a sufficient disagreement to require submission to a [trier of fact] or whether it is so one-sided that one party must prevail as a matter of law." In re Dollar Corp., 25 F.3d 1320, 1323 (6th Cir.1994) (quoting Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505). The Court "must view the evidence in the light most favorable to the non-moving party." Employers Ins. of Wausau v. Petroleum Specialties, Inc., 69 F.3d 98, 101 (6th Cir.1995). Determining credibility, weighing evidence, and drawing reasonable inferences are left to the trier of fact. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. Only where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law may summary judgment be granted. Thompson v. Ashe, 250 F.3d 399, 405 (6th Cir.2001).

2. Tort Liability²

a. Woodard's Status as an Invitee or Licensee

Michigan recognizes three common-law categories for people who enter another's land or premises: (1) trespasser, (2) licensee, and (3) invitee. Stitt v. Holland Abundant Life Fellowship, 462 Mich. 591, 596, 614 N.W.2d 88 (2000). These classifications dictate the level of care a landowner owes the visitor. Invitees receive the highest level of protection under premises liability law:

The landowner has a duty of care, not only to warn the invitee of any known dangers, but the additional obligation to also make the premises safe, which requires the landowner to inspect the premises and, depending upon the circumstances, make any necessary repairs or warn of any discovered hazards.

Id. at 597, 614 N.W.2d 88. Licenses are entitled to a lesser degree of protection:

A `licensee' is a person who is privileged to enter the land of another by virtue of the possessor's consent. A landowner owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved. The landowner owes no duty of inspection or affirmative care to make the premises safe for the licensee's visit. Typically, social guests are licensees who assume the ordinary risks associated with their visit.

Id. at 596, 614 N.W.2d 88. The parties characterized Woodard in their papers as an invitee on Equity's premises. An invitee is "a person who enters upon the land of another upon an invitation which carries with it an implied representation, assurance, or understanding that reasonable care has been used to prepare the premises and make [it] safe for [the invitee's] reception." Id. at 596-97, 614 N.W.2d 88 (internal quotation and citation omitted).

In Stitt, the Michigan Supreme Court clarified that under Michigan law, invitee status extends to individuals entering property held open for a commercial purpose. Id. at 604, 614 N.W.2d 88. Licensee status, however, generally is extended to social guests like Woodard was when he visited Kline. Id. at 596, 614 N.W.2d 88. Even though social guests generally are classified as licensees, the landlord-tenant context may change that result and thus classify a social guest of a tenant as an invitee of the landlord when the social guest brings a premises liability action against the tenant's landlord:

A landlord generally grants to the tenants the right to invite others to use the common areas of the property in order that they might gain access to the property under the tenants' control. Because the tenants do not receive any pecuniary benefit from the visits of their social guests, those invited as social guests of the tenants are licensees for the purpose of defining the duty their hosts owe them. However, the landlord does receive some pecuniary benefit. Part of the rent paid to the landlord is the consideration for giving to the tenants the right to invite others onto the property. Thus, the same duty that a landlord owes to its tenants also is owed to their guests, because both are the landlord's invitees.

Stanley v. Town Square Coop., 203 Mich.App. 143, 147-48, 512 N.W.2d 51 (1993); see also Petraszewsky v. Keeth, 201 Mich.App. 535, 506 N.W.2d 890 (1993). Thus, Stanley suggests that in a case like this one, Woodard is a licensee of Kline (the tenant), but an invitee of Equity (the landlord).

Despite the Michigan Supreme Court's holding in 2000 in Stitt that invitee status extends only to those visiting premises for a commercial purpose, it appears that the Stitt holding has not affected the analysis for invitee or licensee status in the context of the level of care a landlord owes one of its tenant's social guests. Indeed, subsequent to Stitt, the Michigan Court of Appeals continues to hold that a social guest of a tenant is an invitee of the landlord. See, e.g., Smithmier v. Greyberry Apartments of Wayne, 2004 WL 797557 (Mich.App. Apr. 13, 2004) *1; Pippin v. Atallah, 245 Mich.App. 136, 142 n. 1, 626 N.W.2d 911 (2001). Regardless of whether Woodard should be classified as an invitee or a licensee, however, the result discussed below regarding Equity's potential tort liability is unaffected.

b. "Open and Obvious" Doctrine

Under Michigan's "open and obvious" doctrine for premises liability actions, "[a] possessor of land has no duty to give warning of dangers that are open and obvious, inasmuch as such dangers come with their own warning." Pippin, 245 Mich.App. at 143, 626 N.W.2d 911. A possessor of land generally has no duty to safeguard invitees or licensees from conditions that are open and obvious. Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 516, 629 N.W.2d 384 (2001) (invitees); Pippin, 245 Mich.App. at 143, 626 N.W.2d 911 (licensees). In examining whether a risk of harm is open and obvious, the question is whether an average person of ordinary intelligence would "have been able to discover the danger and the risk presented upon casual inspection." Novotney v. Burger King Corp., 198 Mich.App. 470, 475, 499 N.W.2d 379 (1993) (citing Glittenberg v. Doughboy Recreational Indus., 441 Mich. 379, 491 N.W.2d 208 (1992)). What is open and obvious is an objective standard. Adams v. Perry Furniture Co., 198 Mich.App. 1, 497 N.W.2d 514 (1993). Whether the plaintiff actually discovered the danger is irrelevant. Novotney, 198 Mich.App. at 475, 499 N.W.2d 379.

The "open and obvious" doctrine is one of the most litigated areas of Michigan premises liability law.³ Despite the fact that Michigan courts have decided hundreds of cases involving the doctrine, inconsistent applications of the doctrine have resulted in a confusing jurisprudence. See, e.g., Bryan J. Waldman, Michigan Premises Liability Law: The Open and Obvious Danger Doctrine, 78 MICH. B.J. 544 (1999) ("it remains one of the most misunderstood and inappropriately...