RUTH WOODBURY V CHARLES I BRUCKNER
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STATE OF MICHIGAN
COURT OF APPEALS
RUTH WOODBURY,
FOR PUBLICATION
December 14, 2001
9:05 a.m.
Plaintiff-Appellant,
v
No. 204411
Monroe Circuit Court
LC No. 95-003133-NO
CHARLES I. BRUCKNER and ALICE
BRUCKNER,
ON REMAND
Updated Copy
March 1, 2002
Defendants-Appellees.
Before: Griffin, P.J., and Gage and Owens*, JJ.
GRIFFIN, P.J.
On remand from the Supreme Court, we reconsider an order granting summary
disposition in favor of defendants pursuant to MCR 2.116(C)(10). After doing so, we again
reverse and remand.
I
In reviewing the grant of summary disposition under MCR 2.116(C)(10), we assess the
substantively admissible evidence in the light most favorable to the party opposing the motion.
Maiden v Rozwood, 461 Mich 109, 119-121; 597 NW2d 817 (1999); Bullock v Automobile Club
of Michigan, 432 Mich 472, 474-475; 444 NW2d 114 (1989). In her brief on remand, plaintiff
summarizes the relevant facts as follows:
This is a premises liability action in which the Plaintiff/Appellant, Ruth
Woodbury, was injured when she fell from a second story, unguarded deck at the
apartment that she had rented from defendants/appellees . . . . The dwelling had
two apartments, one upstairs and the other downstairs. Plaintiff/Appellant
occupied the second story apartment and had lived in the apartment for several
years.
The dwelling used to have an outside stairway which led directly from the
ground to the upstairs apartment enabling a person to enter the second story
*On remand, Judge Owens has been assigned to replace former Court of Appeals Judge R. J.
Danhof.
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apartment without entering the first floor. At a time unknown, but before
Plaintiff/Appellant began her tenancy at the dwelling, the stairway was removed
and a covered stairway was built leading up to the second story apartment. To
accomplish this task, an addition was built which jutted out from the main
structure where the stairway had been located. The deck above this addition was
directly outside the second story door enabling a person to walk through the
second story apartment door onto it. The area outside the door was several feet
wide and long, and was more or less flat or with a very slight pitch. Even though
the area was elevated over nine feet from the ground, the edge was not protected
by a railing. The door which led from the apartment to this area was operational
at all times during Plaintiff/Appellant's tenancy . . . .
From the first day of her tenancy at the apartment and continuing
throughout the term of said tenancy, Plaintiff/Appellant Ruth Woodbury used the
walk-out deck area of this structure as a balcony/porch/deck.[1] Ruth would often
venture onto this area to answer the door as it would relieve her of the necessity of
making a trip up and down the stairs to meet visitors. She would also use this
area for flowers or shaking out her area rugs while cleaning the apartment. Any
person at the apartment, child and adult alike, could access this area by merely
opening the door and walking out.
During the Plaintiff/Appellant's tenancy, Defendants/Appellees acquired
this dwelling solely as income generating property from the previous owner,
Helen Braun. Upon purchase from Ms. Braun, Defendants/Appellees made
several repairs to the property, including installation of a new furnace near the
stairs leading up to the apartment.
This was a concern to Plaintiff/Appellant because if the furnace started a
fire, she and her husband would be cut off from the only exit leading to the ground
floor from the apartment. In the past, Ruth had always relied on the fact that, in
the event of a fire, she could always head out onto the porch area.
Defendant/Appellee Charles Bruckner himself considered the door leading to this
area as a fire exit and told Plaintiff/Appellant's husband they should use it as a fire
exit. However, with the placement of the new furnace by the stairs, this area
became even more important to Ruth and her husband as it might be the only
means of escape during a fire. Yet, despite Plaintiff/Appellant's requests,
Defendants/Appellees did not erect a railing to prevent falls from this area.[2]
1
Defendants characterize this 8' x 10' walkout area as a mere flat roof.
2
Defendants deny that such requests were made. However, John Woodbury in his deposition
testified as follows:
Q. Did you ask him [Charles Bruckner] to do any more than that?
A. I think we did mention that we would like a railing put out there.
(continued…)
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On the night of the accident, Ruth, who had difficulty sleeping, was
restless and awoke. As she often would during these periods of insomnia, Ruth
decided to clean her apartment. After cleaning the inside of the apartment and
vacuuming, Ruth went outside onto the second story deck to shake out her throw
rugs (ostensibly to avoid creating a dust cloud inside the apartment). Ruth walked
onto the area in question and began shaking the rugs when she lost her balance
and fell to the ground below, shattering both of her ankles and legs. These
injuries ultimately led to the amputation of one of her legs.
Roger Roach, the Petersburg building inspector, soon after this incident,
cited Defendants/Appellees for maintaining an elevated area over thirty (30)
inches above the ground without a railing . . . .
In granting defendants' motion for summary disposition, the lower court ruled that the
rooftop was an open and obvious condition:
The Defendant[s] Bruckners could not anticipate Plaintiff would fail to
protect herself from this type of incident. She proceeded to use the roof-top
despite the obvious danger of falling from it. This Court will not impose a duty
upon a party when none should exist.
In a two-to-one decision,3 this Court reversed and remanded for further proceedings.
Woodbury v Bruckner, unpublished opinion per curiam of the Court of Appeals issued December
1, 1998 (Docket No. 204411). The panel unanimously concluded that the absence of a guardrail
on the second-story roof area was an open and obvious condition known to plaintiff. However,
the majority held that summary disposition was erroneously granted because there was a genuine
issue of fact whether the open and obvious condition was unreasonably dangerous:
In this case, the parties agree that the second story roof-top porch did not
have a guardrail and both defendants and plaintiff were aware of this condition.
The danger of falling from the roof was open and obvious. However, even though
the danger was open and obvious, defendants are not necessarily relieved of
liability.
(…continued)
Q. You think? Why did you ask that?
A. Because it was a good idea at the time, I thought.
Q. Now, you say you think you asked Bruckner to put a railing—
A. I'm almost sure while they were doing the work we requested that a
railing be put up. But to what date or what time, I cannot swear to, but I'm sure
that we've asked him more than once. [Emphasis added.]
3
Judge Danhof filed a dissenting opinion.
-3-
In Bertrand v Alan Ford Inc, 449 Mich 606; 537 NW2d 185 (1995), the
Supreme Court clarified the duty owed by a landowner to an invitee where the
dangerous condition is open and obvious, finding that, although a possessor of
land may not have an obligation to warn invitees of an open and obvious danger,
the landowner may still have a duty to protect invitees against unreasonably
dangerous conditions. Id. at 610-611. The Court stated, "if the risk of harm
remains unreasonable, despite its obviousness or despite knowledge of it by the
invitee, then the circumstances may be such that the invitor is required to
undertake reasonable precautions. The issue then becomes the standard of care
and is for the jury to decide." Id. at 611. See also, Hughes [v PMG Building, Inc,
227 Mich App 1; 574 NW2d 691 (1997)], supra at 10-11; Hottmann v Hottmann,
226 Mich App 171, 175-176; 572 NW2d 259 (1997).
In view of the absence of guardrails, the height of the roof-top porch, and
the inherent dangerousness of the condition, we conclude that a genuine issue of
fact exists as to whether the risk of plaintiff falling from the roof remained
unreasonable. Hottmann, supra at 176. Accordingly, we hold that the trial court
erred in granting defendants' motion for summary disposition. Because of our
disposition, it is not necessary for us to address the other issues raised by plaintiff
on appeal. [Id. at p 2.]
Defendants' application for leave to appeal was granted by the Supreme Court and the
case was consolidated for purposes of oral argument with Lugo v Ameritech Corp, Inc, Docket
No. 112575. 461 Mich 992 (2000). Joint oral arguments were held in the Supreme Court on
October 10, 2000. On July 3, 2001, the Supreme Court rendered its decision in Lugo. 464 Mich
512; 629 NW2d 384 (2001). Two days later, the Supreme Court remanded this case to our Court
in an order that states in pertinent part:
The cause having been briefed and orally argued, the judgment of the
Court of Appeals is vacated, and the case is remanded to that Court for
reconsideration in light of Lugo v Ameritech Corp, Inc, 464 Mich 512 (2001). On
reconsideration, the Court of Appeals is to determine, inter alia, (1) whether the
covenant imposed by MCL 554.139 gave rise to a duty in tort, see Mobil Oil Corp
v Thorn, 401 Mich 306, 311-312 (1977); (2) if so, whether defendants can avoid
tort liability arising from MCL 554.139 by relying on the open and obvious
doctrine; and (3) whether defendants were entitled to summary disposition on
their alternate theory that they were "landlords out of possession," see, e.g.,
Wallington v Carry, 80 Mich App 248 (1977). [Woodbury v Bruckner, 464 Mich
875 (2001).]
Pursuant to the Supreme Court's order, we now reconsider the case in light of Lugo,
supra, and also consider the three additional issues raised in the order of remand.
II
In Mobil Oil Corp v Thorn, 401 Mich 306; 258 NW2d 30 (1977), the Supreme Court held
that the common-law rule that a lessor could not be held liable for injuries arising from a breach
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of a covenant to do repairs "has been abrogated in its applicability to leases for residential
dwellings with the enactment of 1968 PA 286." Id. at 310. The Court further adopted the rule
stated in 2 Restatement Torts, 2d, § 357:
A lessor of land is subject to liability for physical harm caused to his
lessee and others upon the land with the consent of the lessee or his sublessee by a
condition of disrepair existing before or arising after the lessee has taken
possession if
(a) the lessor, as such, has contracted by a covenant in the lease or
otherwise to keep the land in repair, and
(b) the disrepair creates an unreasonable risk to persons upon the land
which the performance of the lessor's agreement would have prevented, and
(c) the lessor fails to exercise reasonable care to perform his contract. [Id.
at 311-312.]
Tenants are regarded as their landlord's invitees.4 Stanley v Town Square Cooperative,
203 Mich App 143, 149; 512 NW2d 51 (1993). Although an invitor has a duty to maintain his
property in a reasonably safe condition and is subject to liability for harm caused to invitees
because of a condition on the land, ordinarily there is no duty to protect or warn where the danger
is open and obvious. Riddle v McLouth Steel Products Corp, 440 Mich 85, 90, 95-96; 485
NW2d 676 (1992). However, "if the risk of harm remains unreasonable, despite its obviousness
or despite knowledge of it by the invitee, then the circumstances may be such that the invitor is
required to undertake reasonable precautions. The issue then becomes the standard of care and is
4
In their original Court of Appeals brief, defendants admitted that "[p]laintiff, as a tenant of the
Buckners, was a business invitee on their property." Further, defendants conceded that the scope
of their duty to plaintiff was governed by 2 Restatement Torts, 2d, §§ 343 and 343A.
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or the jury to decide." Bertrand, supra at 611 (applying 2 Restatement Torts, 2d, §§ 3435 &
343A6).
III
Pursuant to the Supreme Court's directive, we now reconsider our prior decision in light
of Lugo, supra. After doing so, we conclude that our prior decision is consistent with and
supported by Lugo. Accordingly, we again reverse and remand for further proceedings.
In Lugo, our Supreme Court clarified the open and obvious doctrine. In particular, the
Court held that "if special aspects of a condition make even an open and obvious risk
unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions
to protect invitees from that risk." Id. at 517 (emphasis added). The Supreme Court defined the
term "special aspects" and provided examples of conditions that because of their "special
aspects" may be unreasonably dangerous despite being open and obvious. "Special aspects" was
defined as those conditions "that give rise to a uniquely high likelihood of harm or severity of
harm if the risk is not avoided." Id. at 519. The risk of "falling an extended distance" was cited
as a special aspect. Id. at 520. The illustrations of special aspect conditions discussed in Lugo
were "an unguarded thirty foot deep pit in the middle of a parking lot" and standing water at the
only exit of a commercial building. Id. at 518. Our Supreme Court explained:
Consistent with Bertrand, we conclude that, with regard to open and
obvious dangers, the critical question is whether there is evidence that creates a
genuine issue of material fact regarding whether there are truly "special aspects"
of the open and obvious condition that differentiate the risk from typical open and
obvious risks so as to create an unreasonable risk of harm, i.e., whether the
5
2 Restatement Torts, 2d, § 343 provided:
A possessor of land is subject to liability for physical harm caused to his
invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the
condition, and should realize that it involves an unreasonable risk of harm to such
invitees, and
(b) should expect that they will not discover or realize the danger, or will
fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.
6
2 Restatement Torts, 2d, § 343A provided:
A possessor of land is not liable to his invitees for physical harm caused
to them by any activity or condition on the land whose danger is known or
obvious to them, unless the possessor should anticipate the harm despite such
knowledge or obviousness.
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"special aspect" of the condition should prevail in imposing liability upon the
defendant or the openness and obviousness of the condition should prevail in
barring liability.
An illustration of such a situation might involve, for example, a
commercial building with only one exit for the general public where the floor is
covered with standing water. While the condition is open and obvious, a
customer wishing to exit the store must leave the store through the water. In other
words, the open and obvious condition is effectively unavoidable. Similarly, an
open and obvious condition might be unreasonably dangerous because of special
aspects that impose an unreasonably high risk of severe harm. To use another
example, consider an unguarded thirty foot deep pit in the middle of a parking lot.
The condition might well be open and obvious, and one would likely be capable
of avoiding the danger. Nevertheless, this situation would present such a
substantial risk of death or severe injury to one who fell in the pit that it would be
unreasonably dangerous to maintain the condition, at least absent reasonable
warnings or other remedial measures being taken. In sum, only those special
aspects that give rise to a uniquely high likelihood of harm or severity of harm if
the risk is not avoided will serve to remove that condition from the open and
obvious danger doctrine. [Id. at 517-519.]
After applying Lugo to the present case, we conclude that the unrailed rooftop porch
possesses "special aspects" that differentiate its risk from typical open and obvious conditions so
as to create an issue of fact whether the risk of harm was unreasonably dangerous. In fact, Lugo
cites the risk of "falling an extended distance" as being within the class of risks that possess an
especially high severity of harm. Id. at 520. This is precisely the risk that we address in the
present case involving an unguarded rooftop porch. Severe injury should have been expected
because of defendants' failure to remedy the "special aspects" of this open and obvious condition.
As we stated in our prior opinion:
In view of the absence of guardrails, the height of the roof-top porch, and
the inherent dangerousness of the condition, we conclude that a genuine issue of
fact exists as to whether the risk of plaintiff falling from the roof remained
unreasonable.
For these reasons, we hold that there are sufficient "special aspects" inherent in the unguarded
rooftop porch to permit a jury to find the condition to be unreasonably dangerous despite being
open and obvious.
IV
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Next, we are asked by the Supreme Court's order to decide "whether the covenant
imposed by MCL 554.139[7] gave rise to a duty in tort, see Mobil Oil Corp v Thorn, 401 Mich
306, 311-312 (1977)."
The concept of duty encompasses whether the defendant owes the plaintiff any obligation
to avoid negligent or other conduct. Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759
(1977); Hakari v Ski Brule, Inc, 230 Mich App 352, 359; 584 NW2d 345 (1998). In deciding
whether a common-law duty should be imposed, "the court must look at several factors,
including the relationship of the parties, the foreseeability of harm, the burden on the defendant,
and the nature of the risk presented." Id. In regard to the present landlord-tenant relationship,
our Supreme Court in Mobil Oil, supra, held that a duty in tort exists. Further, defendants
concede the existence of a duty to plaintiff. Accordingly, whether an independent duty in tort
also arises by operation of MCL 554.139 is irrelevant. Instead, our common-law rules and any
applicable statutory provisions8 are important in determining the scope of defendant's duty, not
its existence.
V
The next issue raised by the Supreme Court is "if [a duty in tort exists], whether
defendants can avoid tort liability arising from MCL 554.139 by relying on the open and obvious
doctrine."
7
MCL 554.139 provides:
(1) In every lease or license of residential premises, the lessor or licensor
covenants:
(a) That the premises and all common areas are fit for the use intended by
the parties.
(b) To keep the premises in reasonable repair during the term of the lease
or license, and to comply with the applicable health and safety laws of the state
and of the local unit of government where the premises are located, except when
the disrepair or violation of the applicable health or safety laws has been caused
by the tenants wilful or irresponsible conduct or lack of conduct.
(2) The parties to the lease or license may modify the obligations imposed
by this section where the lease or license has a current term of at least 1 year.
(3) The provisions of this section shall be liberally construed, and the
privilege of a prospective lessee or licensee to inspect the premises before
concluding a lease or license shall not defeat his right to have the benefit of the
covenants established herein.
8
See, generally, Klanseck v Anderson Sales & Service, Inc, 426 Mich 78; 393 NW2d 356 (1986).
-8-
As previously noted, tenants are invitees of their landlords. Stanley, supra. Further, the
open and obvious doctrine applies to the duty of an invitor to an invitee. Riddle, supra. While
we conclude the open and obvious doctrine may be raised by defendants, we hold that under the
facts of the present case it is not applicable because a question of fact exists whether the
unguarded rooftop porch was unreasonably dangerous despite being open and obvious.
VI
Finally, the Supreme Court asks "whether defendants were entitled to summary
disposition on their alternate theory that they were 'landlords out of possession,' see, e.g.,
Wallington v Carry, 80 Mich App 248 [263 NW2d 338] (1977)." We hold that they are not.
Wallington was a decision of our Court that applied the law of the state of Michigan, as it existed
before Mobil Oil, supra. In Mobil Oil, our Supreme Court adopted 2 Restatement Torts, 2d,
§ 357 and expressly overruled the prior limitations of landlord liability as set forth in Kuyk v
Green, 219 Mich 423; 189 NW 25 (1922), Awad v McColgan, 357 Mich 386; 98 NW2d 571
(1959), and Huey v Barton, 328 Mich 584; 44 NW2d 132 (1950). This now overruled line of
authority was well summarized in Lipsitz v Schechter, 377 Mich 685, 687; 142 NW2d 1 (1966):
At common law, a landlord's duty depends upon the facts and
circumstances of each case. The element of control is of prime importance. Huey
v Barton, 328 Mich 584, 588; 52 CJS, Landlord and Tenant, § 427, p 100. The
common-law duty is predicated upon the concept that a lease is equivalent to a
sale. The lessor, absent agreement to the contrary, surrenders possession and
holds only a reversionary interest. Under such circumstances, he is under no
obligation to look after or keep in repair premises over which he has no control.
Prosser, Torts (3d ed), § 63, pp 411, 412; Harkrider, Tort Liability of a Landlord,
26 Mich L Rev 260, 383.
Relying on the "landlords out of possession" limitation of liability set forth in Lipsitz,
supra, Huey, supra, and Kuyk, supra, our Court in Wallington, supra at 249-250, stated:
The general rule in Michigan, as the trial court correctly points out, is that
in the absence of a statute requiring that a dwelling be kept in good repair by the
owner or a special agreement under which an owner retains control of a dwelling
occupied by a tenant, a landlord has no duty to inspect or repair rented premises.
Lipsitz v Schechter, 377 Mich 685; 142 NW2d 1 (1966) . . . .
Because the "landlords out of possession" doctrine has been overruled by our Supreme
Court, we refuse to affirm the grant of defendant's motion for summary disposition on this
alternative ground.
Reversed and remanded for further proceedings. We do not retain jurisdiction.
/s/ Richard Allen Griffin
/s/ Hilda R. Gage
/s/ Donald S. Owens
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