JOHN CARTER III V PARC LAFAYETTE CONDOS
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STATE OF MICHIGAN
COURT OF APPEALS
JOHN CARTER, III,
UNPUBLISHED
Plaintiff-Appellant,
v
PARC LAFAYETTE CONDOS and MAGAR &
COMPANY, an assumed name for MAGAR
MANAGEMENT CORPORATION,
No. 189448
Wayne Circuit Court
LC No. 94-433924-NO
Defendants-Appellees.
Before: Smolenski, P.J., and Michael J. Kelly and J.R. Weber*, JJ.
MICHAEL J. KELLY, J. (concurring).
I write separately because, although I agree with the majority’s holding that the trial court erred
in granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(7), I do not reach
the majority’s conclusion that the contractual release allows plaintiff to sue Parc Lafayette Condos for
negligence, but limits plaintiff’s potential recovery to the theory that the landlord failed to exercise
reasonable care in repairing the garage door.
A plain reading of the disclaimer provision in the lease supports the conclusion that Parc
Lafayette Condos did not disavow liability for injuries arising as a result of its negligence. The landlord
expressly retained liability exposure for its “failure to perform a duty or negligent performance of a duty
imposed by law.” According to this language, plaintiff may sue the landlord for a breach of duty and
damages arising therefrom, which is the very essence of an ordinary negligence claim. Jenks v Brown,
219 Mich App 415, 417; 557 NW2d 114 (1996). In light of my reading of the lease, I believe that
plaintiff may sue to recover damages under the theory that Parc Lafayette failed to exercise reasonable
care in undertaking repairs, and also under his theories of failure to warn and inspect.
As to all other aspects of the majority opinion, I concur.
___________________________________________
* Circuit judge, sitting on the Court of Appeals by assignment.
-1
/s/ Michael J. Kelly
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