JANE FORD V NATIONAL CHURCH RESIDENCES INC
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STATE OF MICHIGAN
COURT OF APPEALS
JANE FORD,
UNPUBLISHED
January 12, 2010
Plaintiff-Appellant,
v
No. 288416
Oakland Circuit Court
LC No. 2007-085235
NATIONAL CHURCH RESIDENCES, INC.,
d/b/a MEADOW CREEK VILLAGE,
Defendant-Appellee.
Before: Murphy, C.J., and Jansen and Zahra, JJ.
MURPHY, C.J. (dissenting).
Because I would reverse the trial court’s order granting summary disposition in favor of
defendant on the basis of my conclusion that there exists a genuine issue of material fact with
respect to whether the sidewalk located on the grounds of the apartment complex was “fit for the
use intended by the parties,” MCL 554.139(1)(a), I respectfully dissent.
MCL 554.139(1)(a) provides that in every lease of residential premises, the lessor
covenants that “the premises and all common areas are fit for the use intended by the parties.”1
Sidewalks within an apartment complex constitute common areas. Allison v AEW Capital Mgt,
LLP, 481 Mich 419, 428; 751 NW2d 8 (2008), citing Benton v Dart Properties, Inc, 270 Mich
App 437, 442-443; 715 NW2d 335 (2006). There is no dispute here that the location of
plaintiff’s fall was a sidewalk on the premises owned by defendant, that she was using the
sidewalk for the purpose intended, and that plaintiff was a resident and tenant of defendant’s
apartment complex. Therefore, defendant owed a duty to plaintiff to keep the sidewalk fit for its
intended use. Allison, 481 Mich at 431. I also note that the open and obvious danger doctrine is
not available to a defendant when the defendant has a statutory duty and breaches that duty under
MCL 554.139. Benton, 270 Mich App at 441. In Benton, this Court observed:
[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. Thus, . . .
1
MCL 554.139(3) provides that “[t]he provisions of this section shall be liberally construed[.]”
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defendant owed plaintiff a duty of reasonable care regardless of the openness or
obviousness of the icy sidewalk conditions. [Id. at 444.]
If this case involved an ordinary apartment complex and slightly different circumstances,
I perhaps would agree with the majority’s ruling that, as a matter of law, the sidewalk was not
unfit for its intended use. However, defendant’s apartment complex, Meadow Creek Village
(MCV), is a housing facility specifically designed and operated for senior citizens.2 Plaintiff, in
her efforts to distinguish Allison, argues in part:
Further, in the case at bar, the sidewalk is part of the common area of a
senior citizen apartment building. The residents are elderly persons who need
extra care in walking because of frail bones and some residents being less stable
than a younger person. What might be a minor or insignificant break in concrete
to a twenty year old is major or significant to a ninety year old person who the
sidewalk is designed to be used by such as in the case at bar.[3]
I find merit in plaintiff’s argument. Under MCL 554.139(1)(a), defendant had a legal
obligation to keep the sidewalk “fit for the use intended by the parties.” (Emphasis added.) The
express language of the statute has a subjective component to it, where the language refers to the
parties’ intent as to use.4 The parties’ intent here, clearly and necessarily, was that the sidewalks
would be used to walk on for purposes such as ingress and egress relative to the apartments. But
encompassed within that intent and the parties’ knowledge was the fact that the sidewalks would
be used to a great extent by the elderly, given that residents of MCV are senior citizens. Stated
otherwise, the intended purpose of the sidewalks at MCV was for senior citizens to walk on them
during their residency at the complex. It cannot reasonably be disputed that, in general, senior
citizens and the elderly are more susceptible to falls and injuries from falls, especially where
there is some defect present in a walking surface, considering natural frailities and the loss of
agility and balance that unfortunately come with age.
Furthermore, on review of the photographs presented below, the area where the
sidewalk’s broken concrete is located is adjacent to a handicapped parking spot and is directly in
the path of where one would plant his or her feet after exiting the passenger side of a vehicle
parked in the handicap spot. Indeed, there is evidence in the record that plaintiff had been
2
Plaintiff claims that MCV is also an assisted living facility, but defendant, who acknowledges
that MCV is a facility for senior citizens, denies that it is an assisted living facility or a nursing
home.
3
In her brief, plaintiff indicates that she is 88 years old.
4
I recognize that, in the context of the open and obvious danger doctrine, an objective standard
is used and that the fact-finder must consider the condition of the premises, “not the condition of
the plaintiff.” Mann v Shusteric Enterprises, Inc, 470 Mich 320, 329; 683 NW2d 573 (2004).
Here, however, I am not addressing the open and obvious danger doctrine, but rather a landlord’s
duty under specific statutory language that places some emphasis on the actual parties in a
landlord-tenant relationship.
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grocery shopping with an acquaintance, that plaintiff was sitting in the passenger seat of a
vehicle when the two returned back to MCV after shopping, that the acquaintance parked the car
in the handicapped parking spot, that when plaintiff opened the passenger door to exit the car the
door overhung the sidewalk, that plaintiff stepped out of the car and removed some grocery
items, and that when she stepped up onto the sidewalk to shut the door her left foot became
entangled in the sidewalk’s broken concrete, causing her to fall.
Taking the location of the broken concrete into consideration along with the fact that the
apartment complex is for senior citizens, I conclude that reasonable minds could differ with
regard to whether the sidewalk was fit for the use intended by the parties, MCR 2.116(C)(10).
West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003)("A genuine issue of
material fact exists when the record, giving the benefit of reasonable doubt to the opposing party,
leaves open an issue upon which reasonable minds might differ."). Accordingly, I respectfully
dissent.
I would reverse the trial court’s order and remand for further proceedings.
/s/ William B. Murphy
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