RENA FARMER V PRACTICAL LIMITED DIVIDENT HOUSING ASSN
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STATE OF MICHIGAN
COURT OF APPEALS
RENA FARMER and WILLIAM FARMER,
UNPUBLISHED
July 21, 2009
Plaintiffs-Appellants,
v
PRACTICAL LIMITED DIVIDEND HOUSING
ASSOCIATION, PARKVIEW TOWERS &
SQUARE, and WALKER LAWN
MAINTENANCE AND NORTHERN
LANDSCAPE SUPPLY, INC.,
No. 280627
Wayne Circuit Court
LC No. 06-607226-NO
Defendants-Appellees.
Before: Fort Hood, P.J., and Wilder and Borrello, JJ.
PER CURIAM.
Plaintiffs, Rena Farmer and William Farmer, appeal as of right one order granting
summary disposition in favor of defendants, Practical Limited Dividend Housing Association
(“Practical”) and Parkview Towers & Square (“Parkview”), a second order granting summary
disposition in favor of defendant, Walker Lawn Maintenance and Northern Landscape Supply,
Inc. (“Walker”), and a third order granting summary disposition in favor of all three defendants.
We affirm in part, reverse in part, and remand for further proceedings.
Plaintiffs first argue that genuine issues of material fact exist regarding whether
defendants Practical and Parkview breached a duty to plaintiff Rena by failing to remove ice
from the premises and whether these defendants had notice of the hazardous condition. We
agree.
Defendants moved for summary disposition pursuant to MCR 2.116(C)(8) and (C)(10).
In presenting their arguments, the parties and the court have gone beyond the pleadings.
Therefore, plaintiffs’ claims should be reviewed under MCR 2.116(C)(10). Hughes v Region VII
Area Agency on Aging, 277 Mich App 268, 273; 744 NW2d 10 (2007).
This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). The Court considers
“the pleadings, admissions, and other evidence submitted by the parties in the light most
favorable to the nonmoving party.” Id. Moreover, the Court reviews only “what was properly
presented to the trial court before its decision on the motion.” Pena v Ingham County Rd Comm,
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255 Mich App 299, 310; 660 NW2d 351 (2003). Summary disposition “is appropriate if there is
no genuine issue regarding any material fact and the moving party is entitled to judgment as a
matter of law.” Latham, supra at 111.
“Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the
nonmoving party may not rely on mere allegations or denials in pleadings, but must go beyond
the pleadings to set forth specific facts showing that a genuine issue of material facts exists.”
Pena, supra at 310, quoting Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314
(1996). “There is a genuine issue of material fact when reasonable minds could differ on an
issue after viewing the record in the light most favorable to the nonmoving party.” Allison v
AEW Capital Mgmt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).
The plaintiff must prove the following elements to support a negligence action: (1)
defendant owed a duty to plaintiff, (2) defendant breached that duty, (3) an injury proximately
resulted from that breach, and (4) plaintiff suffered damages. Henry v Dow Chem Co, 473 Mich
63, 71-72; 701 NW2d 684 (2005). Different standards of care are owed to a plaintiff in
accordance with the plaintiff’s status on the land. O’Donnell v Garasic, 259 Mich App 569; 573;
676 NW2d 213 (2003). “An invitee is one who enters the land of another for a commercial
purpose.” Id., citing Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 596-597; 614
NW2d 88 (2000). “In general, a premises possessor 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.” O’Donnell, supra at 573, quoting Lugo v Ameritech Corp, 464 Mich
512, 516; 629 NW2d 384 (2001). This duty does not generally require the removal of open and
obvious dangers. O’Donnell, supra at 574.
Under MCL 554.139(1)(a), however, the lessor of residential property covenants “[t]hat
the premises and all common areas are fit for the use intended by the parties.” See also Allison,
supra at 426. The lessor cannot use the common law open and obvious doctrine to avoid the
statutory duty. Id. at 425 n 2. “[T]he sidewalks located within an apartment complex constitute
‘common areas.’” Benton v Dart Props, 270 Mich App 437, 442; 715 NW2d 335 (2006). While
“there is no general duty of inviters to take reasonable measures to remove snow and ice for the
benefit of invitees unless the accumulation . . . [creates] an unreasonable risk of danger,” MCL
554.139 “impose[s] a higher duty on landlords than on other inviters given the enhanced rights
afforded tenants . . . and the tenants’ reliance on interior sidewalks to access their homes and
parking structures.” Benton, supra at 443 n 2.
In Benton, this Court considered a situation similar to the case at bar: the plaintiff slipped
and fell on an icy sidewalk at an apartment complex that was owned and maintained by the
defendant. Benton, supra at 438. The Court explained, “a landlord has a duty to take reasonable
measures to ensure that the sidewalks are fit for their intended use. Because the intended use of
a sidewalk is walking on it, a sidewalk covered with ice is not fit for this purpose.” Id. at 444.
Benton, which specifically addressed ice-covered sidewalks in residential apartment
complexes, comports with the recent Supreme Court decision in Allison. The issue in Allison
involved a slip and fall in a residential apartment complex’s parking lot. In addition to a cause of
action in negligence, the plaintiff in Allison sought relief under MCL 554.139(1)(a) (landlord
covenants that the premises and all common areas are fit for their intended use) and MCL
554.139(1)(b) (landlord covenants to keep the premises in reasonable repair). Allison, supra at
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425. Citing Benton for the proposition that sidewalks are “common areas” under the statute, the
Allison Court agreed that parking lots, too, fell into this category because a parking lot “is
accessed by two or more, or all, of the tenants and the lessor retains general control.” Id. at 428.
In regard to a landlord’s duties to keep parking lots free “from the natural accumulation
of ice and snow” under MCL 554.139(1)(a), the Court first determined that “the intended use of
a parking lot includes the parking of vehicles,” therefore, the landlord’s duty “would commonly
be to ensure that the entrance to, and the exit from, the lot is clear, that vehicles can access
parking spaces, and that tenants have reasonable access to their parked vehicles.” Allison, supra
at 429. In Allison, the plaintiff alleged that the lot was unfit for its intended use because “the lot
was covered with one to two inches of snow and . . . [the] plaintiff fell.” Id. at 430. The Court
concluded, “there could not be reasonable differences of opinion regarding the fact that tenants
were able to enter and exit the parking lot, to park their vehicles therein, and to access those
vehicles. Accordingly, [the] plaintiff has not established that tenants were unable to use the
parking lot for its intended purpose, and his claim fails as a matter of law.” Id. The Court
further explained:
While a lessor may have some duty under MCL 554.139(1)(a) with regard to the
accumulation of snow and ice in a parking lot, it would be triggered only under much
more exigent circumstances than those obtaining in this case. The statute does not require
a lessor to maintain a lot in an ideal condition or in the most accessible condition
possible, but merely requires the lessor to maintain it in a condition that renders it fit for
use as a parking lot. Mere inconvenience of access, or the need to remove snow and ice
from parked cars, will not defeat the characterization of a lot as being fit for its intended
purposes.
We recognize that tenants must walk across a parking lot in order to access their
vehicles. However, plaintiff did not show that the condition of the parking lot in this case
precluded access to his vehicle. The Court of Appeals erred in concluding that, under the
facts presented, the parking lot in this case was unfit simply because it was covered in
snow and ice. [Id.][1]
In the Benton decision, this Court concluded that a factual issue existed precluding
summary disposition. The evidence in Benton showed that the apartment complex had salted the
sidewalks between 8:00 and 10:00 a.m. and the plaintiff fell around 6:00 p.m. Benton, supra at
439, 444. This Court concluded that summary disposition was inappropriate because reasonable
minds could differ over whether the defendant’s preventative measures amounted to reasonable
care, given the weather conditions. Id. at 444-445.
1
In regard to MCL 554.139(1)(b), the Court held that, “the lessor’s duty to repair under MCL
554.139(1)(b) does not apply to common areas and, therefore, does not apply to parking lots. In
addition, MCL 554.139(1)(b) requires the lessor to repair defects in the premises, and the
accumulation of snow and ice is not a defect. A lessor has no duty under MCL 554.139(1)(b)
with regard to the natural accumulation of snow and ice.” Allison, supra at 435.
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It is thus necessary to consider whether plaintiffs in the case at bar presented evidence
that creates “a genuine issue of material fact regarding whether defendant breached its duty
under MCL 554.139.” Benton, supra at 444. In plaintiff Rena’s deposition, she stated that
sometime between 6:00 and 7:00 a.m. on January 6, 2005, she walked out the double doors at the
front of her apartment building. The apartment complex’s incident report, however, recorded the
incident as having happened at 5:30 a.m. At any rate, plaintiff Rena stated that it was not
snowing when she left but she did see snow outside as she was leaving. However, she did not
have to walk through any snow from the time she left the building until the time she fell.
Plaintiff noted that the area looked as though it had been shoveled; however, she saw neither ice
nor salt on the ground before she fell. It was only when she tried to get up that she felt the ice
with her hands. Although there was a light in the parking lot, it was not working properly, and it
did not illuminate the area of her fall.
Defendant Walker’s invoice number 3744 for January 5, 2005, states that defendant
Walker applied five tons of salt to defendant Parkview’s parking lots only, beginning at 6:00
a.m. and ending at 6:38 a.m. There is no indication that sidewalks were included in this salting.
Defendant Parkview’s snow removal log states that on January 6, 2005, two employees
performed snow blowing and salting of the sidewalks and stairs beginning at 6:00 a.m. and
ending at 4:00 p.m. Defendant Walker’s invoice number 2938 for January 6, 2005, shows that
the company used another five tons of salt on defendant Parkview’s parking lots, and it plowed
the parking lots, roads and entrances2 as well. Start and end times, however, are unclear. A
second invoice from defendant Walker, number 2941, for January 6, 2005, appears to indicate
that defendant Walker used an additional four tons of salt on defendant Parkview’s parking lots
only, beginning at 12:52 p.m. and ending at 1:05 p.m.
Weather records for January 5, 2005, indicate light snow for most of the day (total
accumulation 0.13 inches3), with temperatures not rising above freezing. Weather records for
January 6, 2005, indicate light snow from about midnight to 6:00 a.m., and then a break in
precipitation until freezing rain began around 8:40 a.m. Again, temperatures did not rise above
freezing at any point during the day.
This evidence appears to indicate that while defendant Walker salted the parking lots on
the morning of January 5, 2005, defendant Parkview’s employees did not begin snow removal
and salting on sidewalks until the morning of January 6, 2005, at about the time plaintiff Rena
slipped and fell. Even if the area on which plaintiff Rena fell is considered an “entrance” as
opposed to a sidewalk (we know only that it was the area she had to cross to get from the front
doors to the parking lot), it would not have been plowed by defendant Walker until the day of her
fall at a time unknown. Plaintiff Rena stated in her deposition that she did not see any salt and
she felt the ice with her hands after she fell. She also testified that it was dark at the time she fell
2
It is not clear if the term “entrances” on defendant Walker’s invoice refers to parking lot
entrances, building entrances, or both.
3
Defendant Parkview’s snow removal log indicates six inches of snow on January 6, 2005.
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– the parking lot light was not working properly, and lights on the front of the building did not
adequately illuminate the area.
Thus, like the plaintiff in Benton, plaintiffs here established a genuine issue of material
fact regarding whether defendants Practical and Parkview breached their duty under MCL
554.139(1)(a) to maintain the sidewalk in a manner fit for its intended use, i.e., walking on it.
Allison, supra. Given the testimony and maintenance records presented, reasonable minds might
differ regarding whether defendants’ preventive measures amounted to reasonable care in light of
the weather conditions on January 5 and 6, 2005. Therefore, the trial court erred when it granted
summary disposition in favor of defendants Practical and Parkview. Moreover, it should be
noted that in granting summary disposition, the lower court did not frame the issue in terms of
defendants’ statutory duty to maintain the common areas in a manner fit for their intended use,
rather, the court described defendants’ common law duty – “the duty to exercise reasonable care
to protect [plaintiff] from unreasonable risk of harm caused by dangerous conditions on the
land.”
In addition, though the lower court did not comment on the issue of notice, plaintiffs
argued it below and the parties addressed it in their briefs on appeal. Nevertheless, plaintiffs
presented no evidence that defendants Practical and Parkview had actual knowledge of the ice,
therefore, “defendant would be liable for plaintiff’s injuries only if the condition of the parking
lot was caused by defendant’s active negligence or the condition ‘had existed a sufficient length
of time that [defendant] should have had knowledge of it.’” Derbabian v Mariner’s Pointe
Assoc LP, 249 Mich App 695, 706; 644 NW2d 779 (2002), citing Hampton v Waste
Management of Michigan, Inc, 236 Mich App 598, 604; 601 NW2d 172 (1999). Given that it
snowed for the entire day on January 5, 2005, and into the early morning hours of January 6,
2005, defendants Practical and Parkview should have known that slippery conditions were likely.
In fact, as discussed above, the record indicates that remedial measures were taken. The issue,
then, is whether these remedial measures rendered the premises fit for their intended use. As
stated, reasonable minds could differ, thus, summary disposition was inappropriate.
Second, plaintiffs contend that the court erred in dismissing plaintiff William’s loss of
consortium claim against defendants Practical, Parkview and Walker on the grounds that he is
not a minor child. We disagree.
The parties dispute whether the decision in Berger v Weber, 411 Mich 1, 11; 303 NW2d
424 (1981) in which the mentally retarded and physically handicapped minor child of a severely
injured accident victim sought damages “for loss of society, companionship, love and affection
of her mother . . .” was limited to minor children. In Malik v William Beaumont Hosp, 168
Mich App 159, 165; 423 NW2d 920 (1988), this Court concluded that the word “child” in Berger
referred to “minor child.” “[Berger was] based on the unique relationship between minor
children and their parents.” Malik supra, at 167. Therefore, the trial court was correct to dismiss
plaintiff William’s claim on the basis of his status as an adult child who was over the age of 18 at
the time of his mother’s injury.
Third, plaintiffs argue that genuine issues of material fact exist in regard to whether
defendant Walker breached a duty to plaintiff Rena by negligently removing snow from the
premises. We disagree.
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In the court below, plaintiffs conceded that they were not intended third-party
beneficiaries of the contract between defendants Practical and Walker; hence, defendant Walker
owed them no duty under the contract. The issue, then, is whether defendant owed plaintiff Rena
a separate and distinct duty, as defined in Fultz v Union-Commerce Assoc, 470 Mich 460; 683
NW2d 587 (2004). In Fultz, the plaintiff fell and injured her ankle while walking across a
parking lot, for which the defendant was under contract to provide snow and ice removal. Id. at
462. At the time the plaintiff in Fultz fell, the defendant “had not plowed the lot in
approximately fourteen hours and had not salted the parking lot.” Id. This Court upheld a jury
verdict, which found the defendant negligent for having failed to perform the contract. Id. The
Supreme Court, however, held, “as a matter of law, that defendant owed no contractual or
common-law duty to plaintiff to plow or salt the parking lot.” Id. at 463.
The Court further explained that there was no need to undertake a misfeasance versus
nonfeasance analysis, because this results in an improper focus
on whether a duty was breached instead of whether a duty exists at all. Accordingly, the
lower courts should analyze tort actions based on a contract and brought by a plaintiff
who is not a party to that contract by using a “separate and distinct” mode of analysis.
Specifically, the threshold question is whether the defendant owed a duty to the plaintiff
that is separate and distinct from the defendant’s contractual obligations. If no
independent duty exists, no tort action based on a contract will lie. [Fultz, supra at 467.]
In Fultz, the plaintiff claimed that the defendant breached its contract with the premises owner
“by failing to perform its contractual duty of plowing or salting the parking lot.” Id. at 468.
Thus, plaintiff failed “to satisfy the threshold requirement of establishing a duty . . . owed to her
under the ‘separate and distinct’ approach set forth in this opinion.” Id.
The Fultz Court then distinguished Osman v Summer Green Lawn Care, Inc, 209 Mich
App 703; 532 NW2d 186 (1995), overruled in part on other grounds Smith v Globe Life Ins Co,
460 Mich 446, 455 n 2; 597 NW2d 28 (1999), upon which plaintiff in the case at bar relies. In
Osman, “the defendant had breached a duty separate and distinct from its contractual duty when
it created a new hazard by placing snow ‘on a portion of the premises when it knew, or should
have known or anticipated, that the snow would melt and freeze into ice on the abutting
sidewalk, steps, and walkway, thus posing a dangerous and hazardous condition to individuals
who traverse those areas.’” Fultz, supra at 469, quoting Osman, supra at 704.
In the case at bar, plaintiffs claim that defendant Walker created an additional hazard. At
the motion hearing, plaintiffs argued that defendant Walker put down salt, but did nothing else;
hence, the salt melted the snow, which then refroze. Defendant Walker salted only the parking
lot, however, on the day before plaintiff Rena fell. While it is not entirely clear where plaintiff
Rena fell, it is certain that she did not fall in the parking lot. If the area where plaintiff Rena fell
is considered an entrance, it was plowed, but not salted, by defendant Walker at a time unknown,
on January 6, 2005. Plaintiffs’ appellate brief offers only conjecture that melted snow was
tracked by unknown persons from the area that defendant Walker did salt, onto the area where
plaintiff fell, and then refroze. There is absolutely no evidence in the record to support this
hypothesis. “Parties opposing a motion for summary disposition must present more than
conjecture and speculation to meet their burden of providing evidentiary proof establishing a
genuine issue of material fact.” Detroit v GMC, 233 Mich App 132, 139-140; 592 NW2d 732
-6-
(1998), quoting Libralter Plastics, Inc v Chubb Group of Ins Cos, 199 Mich App 482, 486; 502
NW2d 742 (1993). Therefore, the trial court properly concluded that plaintiffs failed to present
evidence of a genuine issue of material fact regarding whether defendant Walker created an
additional hazard. Summary disposition was thus appropriate.
Affirmed in part, reversed in part, and remanded for further proceedings. We do not
retain jurisdiction.
/s/ Karen M. Fort Hood
/s/ Stephen L. Borrello
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