THERESA ROYCE V CHATWELL CLUB APARTMENTS
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STATE OF MICHIGAN
COURT OF APPEALS
THERESA ROYCE and CARL ROYCE,
FOR PUBLICATION
August 7, 2007
9:00 a.m.
Plaintiffs-Appellees/CrossAppellants,
v
No. 266682
Genesee Circuit Court
LC No. 04-080383-NO
CHATWELL CLUB APARTMENTS, a/k/a
TOBIN GROUP,
Defendant-Appellant/CrossAppellee.
Official Reported Version
Before: Servitto, P.J., and Jansen and Schuette, JJ.
SCHUETTE, J. (concurring in part and dissenting in part).
I concur in the portion of the majority opinion that reverses the trial court's denial of
defendant's motion for summary disposition regarding plaintiffs' common-law premises liability
claim. However, because I do not believe that the trial court erred in granting defendant's motion
for summary disposition regarding plaintiffs' statutory claim, I must respectfully dissent from
that portion of the opinion.1
I agree with the majority that plaintiffs' common-law premises liability claim failed to
state a cause of action because the dangerous condition of the parking lot here in question—
covered in icy, slippery snow—was open and obvious and contained no special aspects making
the condition unreasonably dangerous. Kenny v Kaatz Funeral Home, Inc, 472 Mich 929; 697
NW2d 526 (2005) (Kenny II); Lugo v Ameritech Corp, Inc, 464 Mich 512; 629 NW2d 384
(2001); Ververis v Hartfield Lanes (On Remand), 271 Mich App 61; 718 NW2d 382 (2006).
1
I also agree with the majority's conclusion that a review of the record in this case does not
clearly reveal whether the defendant was on notice of the condition of the parking lot. Therefore,
it is appropriate for this panel not to address the notice issue.
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I disagree, however, with the majority's conclusion that the trial court erred in summarily
dismissing plaintiff 's statutory claim because Allison v AEW Capital Mgt, LLP (On
Reconsideration), 274 Mich App 663; 736 NW2d 307 (2007) (Allison II), controls the outcome
of this case. As expressed below, I dissent primarily for procedural reasons—I believe that the
Allison II panel erred in concluding that it was not bound by this Court's decision in Teufel v
Watkins, 267 Mich App 425; 705 NW2d 164 (2005)—and because I desire to provide the trial
courts and the bar with a clear roadway when traversing the pitfalls of slip-and-fall cases
involving icy pavements, sidewalks, and parking lots in a cold-weather state like Michigan.
The judicial meander on black ice and slippery parking lots commenced when our
Supreme Court adopted Judge GRIFFIN's dissent in the case of Kenny v Kaatz Funeral Home, Inc,
264 Mich App 99; 689 NW2d 737 (2004) (Kenny I), rev'd 472 Mich 929 (2005). Kenny II,
supra. Kenny involved an icy, snow-covered parking lot. Kenny I, supra at 115 (GRIFFIN, J.,
dissenting). In that case, the plaintiff argued that the open and obvious danger doctrine did not
apply because the dangerous condition at issue was black ice, which, by its very nature, is not
readily noticeable. Id. at 118. However, Judge GRIFFIN concluded that the dangerous condition
of the parking lot was open and obvious because "after witnessing three companions exit a
vehicle into the snow-covered parking lot on December 27 and seeing them holding on to the
hood of the car to keep their balance, all reasonable Michigan winter residents would conclude
that the snow-covered parking lot was slippery." Id. at 120. Further, because "[s]now and ice in
a Michigan parking lot on December 27 are a common, not unique, occurrence," Judge GRIFFIN
concluded that there were no special aspects of the dangerous condition of the parking lot that
would negate application of the open and obvious danger doctrine. Id. at 121.
After Kenny, the question whether a snow-covered surface would always present an open
and obvious danger arose, and this Court answered in the affirmative. Ververis, supra. In
Ververis, after considering Judge GRIFFIN's dissent in Kenny I, which was adopted by our
Supreme Court in Kenny II, and our Supreme Court's orders issued after Kenny II, this Court
held that "by its very nature, a snow-covered surface presents an open and obvious danger
because of the high probability that it may be slippery." Ververis, supra at 67.
Paralleling these black-ice decisions was the decision in O'Donnell v Garasic, 259 Mich
App 569, 581; 676 NW2d 213 (2003), which stands for the proposition that the open and obvious
danger doctrine cannot be used to avoid liability when the defendant has a statutory duty under
MCL 554.139 to maintain the premises in reasonable repair. I am in agreement with this line of
cases, which correctly applies the plain meaning of the language that the Legislature used by
providing a statutory remedy to a plaintiff who has suffered an injury because of a lessor or
licensor's failure to comply with his or her duty to keep residential premises and common areas
fit for their intended use, to keep the premises in reasonable repair, and to comply with
applicable state and local health and safety laws. See Laurendine v CCA Assoc Ltd Partnership,
unpublished opinion per curiam of the Court of Appeals, issued March 21, 2006 (Docket No.
257775); Rincones v Kramer, unpublished opinion per curiam of the Court of Appeals, issued
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February 23, 2006 (Docket No. 256706); Hysni v Cornwall Plumbing, Inc, unpublished opinion
per curiam of the Court of Appeals, issued February 3, 2004 (Docket No. 243564).2
The black-ice journey continued with this Court's decision in Teufel, supra. In Teufel, the
plaintiff was injured when he slipped and fell on ice near a pile of snow in the parking lot of his
apartment complex, and this Court made at least three substantive rulings. First, the Teufel Court
held that the snow and ice that plaintiff fell on were open and obvious and the Court affirmed the
lower court's grant of summary disposition. Id. at 428-429. Second, the Teufel Court held that
MCL 554.139 does not impose a duty upon a landlord to keep a parking lot free from ice and
snow, which might cause someone to slip and become injured. Id. at 429 n 1. This dispositive
ruling was made in a footnote. Finally, the Teufel Court, relying on our Supreme Court's
decision in Fultz v Union-Commerce Assoc, 470 Mich 460; 683 NW2d 587 (2004), also held that
the plaintiff 's claims against the snow-plowing contractor for negligent performance of his duties
under the snow-removal contract were properly dismissed because the contractor owed no duty
to the plaintiff that was separate and distinct from his contractual obligations. Teufel, supra at
429-430.
Conversely, in 2006, a panel of this court, in Benton v Dart Properties Inc, 270 Mich
App 437, 443-444; 715 NW2d 335 (2006), held that MCL 554.139(1)(a) did impose a duty on a
landlord to keep sidewalks free of ice and snow. The Benton Court concluded that outdoor
sidewalks in an apartment complex constituted "common areas" under the statute and, thus, a
landlord has a duty to take reasonable measures to ensure that the sidewalks are fit for their
intended use, including removing ice and snow in a timely manner. Id. Noteworthy is the fact
that the Teufel decision was not mentioned anywhere in Benton.
Following the Benton snow-covered sidewalk detour, this Court was presented with yet
another case involving an icy, snow-covered parking lot. In Allison v AEW Capital Mgt, LLP,
unpublished opinion per curiam of the Court of Appeals, issued November 28, 2006 (Docket No.
269021) (Allison I), vacated by Allison v AEW Capital Mgt, LLP, unpublished order of the Court
of Appeals, entered January 19, 2007, the plaintiff, a tenant in the defendant's apartment
complex, slipped and fell on ice and snow in the parking lot as he was attempting to reach his
car. Id. at slip op p 1. The plaintiff filed suit, arguing that the defendant breached its statutory
duty under MCL 554.139(1) and its common-law duty to warn and protect against this hazardous
condition. Id. The Allison I Court declared a conflict with Teufel and concluded that but for the
Teufel decision, which the panel admitted was binding under MCR 7.215(J)(1), it would have
held that a landlord did indeed have a duty under MCL 554.139 to keep parking lots free from
snow and ice. Id. at slip op p 2. The Allison I Court based its preferred holding, in part, on the
decision in Benton, extending the Benton "common area" analysis from sidewalks to a parking
lot, as well as the panel's contention that the reasoning in Teufel was flawed. Id. at slip op pp 23.
2
While I acknowledge that these unpublished opinions have no precedential effect under MCR
7.215(C)(1), they are used to show my agreement with the O'Donnell holding and the fact that I
have followed O'Donnell on several occasions.
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The Allison I decision necessitated a vote of the entire Michigan Court of Appeals to
determine whether there was a conflict between Teufel and Allison I. After a vote of the entire
Court, a conflict was not declared, Allison v AEW Capital Mgt, LLP, unpublished order of the
Court of Appeals, entered December 21, 2006, and Teufel appeared to be the reigning rule of the
road. However, the plaintiff in Allison moved for reconsideration, a proper procedural tool by
any party under MCR 7.215(I)(1) and (J)(7), and the Allison panel granted reconsideration and
vacated its original opinion. Allison v AEW Capital Mgt, LLP, unpublished order of the Court of
Appeals, entered January 19, 2007. On reconsideration, the Allison II Court reissued its opinion
and held that a landlord does have a statutory duty to keep a parking lot free of ice and snow.
Allison II, supra.
The Allison II Court avoided the binding effect of Teufel by declaring that the Teufel
Court's use of a footnote to substantively state that MCL 554.139 imposed no duty upon a
landlord to remove ice and snow did not create a rule of law. Allison II, supra at 669-670. The
Allison II Court reasoned, "Had our Court in Teufel intended to create a rule of law regarding the
availability of the open and obvious danger doctrine when a landlord has statutory duties under
MCL 554.139(1)(a) and (b), it would have done so in the body of the opinion rather than in a
footnote." Id.
The Allison II Court relied on our Supreme Court's decision in Guerra v Garratt, 222
Mich App 285, 289-292; 564 NW2d 121 (1997), to support its conclusion that if the Teufel Court
wanted to create a rule of law regarding MCL 554.139, it should have included its analysis "in
the body of the opinion rather than in a footnote." While I have immense respect for my
distinguished colleagues on the Allison panels (and those on the Benton panel as well), I do not
believe that the Guerra decision supports this proposition. Guerra concerned a previous
decision in the case of Lemmerman v Fealk, 449 Mich 56; 534 NW2d 695 (1995), and whether
footnote 15 in Lemmerman addressed the retroactivity of Lemmerman or articulated an exception
to the rule of law expressed in Lemmerman. Guerra, supra at 289-292. Guerra did not speak
directly to the issue whether a footnote can create a rule of law.
The use of footnotes is a long-established practice of this Court, often employed to
express an additional legal proposition or contrary judicial holding without interrupting the flow
of the opinion. The circumstances that cause a perspective or legal conclusion to be included in
a footnote or within the body of the opinion, can vary from panel to panel and issue to issue.
Further, the placement of a ruling in a footnote should not determine its precedential value. See
Zsigo v Hurley Med Ctr, 475 Mich 215, 234 n 3; 716 NW2d 220 (2006) (KELLY, J., dissenting)
(noting that "footnotes do sometimes set the state of the law"). Instead, the relevant question
should be whether the footnote is dispositive or merely dicta. Dictum is defined as "'"[a] judicial
comment made during the course of delivering a judicial opinion, but one that is unnecessary to
the decision in the case and therefore not precedential . . . ."'" Dessart v Burak, 252 Mich App
490, 496 n 5; 652 NW2d 669 (2002), quoting People v Higuera, 244 Mich App 429, 437; 625
NW2d 444 (2001), quoting Black's Law Dictionary (7th ed). The Teufel footnote, which
disposed of one of the plaintiff 's arguments, was clearly not dictum. Therefore, it was binding
on the Allison II Court. Ironically, the Benton opinion itself contains two footnotes that I
consider to be legally significant, without which the opinion would lose a measure of import.
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The Allison II Court also expressed a concern that the Teufel decision did not attempt to
distinguish O'Donnell or even mention the O'Donnell case whatsoever in its analysis. But it is
important to remember that O'Donnell involved a defective staircase in a resort cabin, with state
and local ordinances applying as well, and the defendant was on notice of the defective
condition. It did not involve ice and snow in a parking lot. Therefore, it is factually
distinguishable. Further, as noted above, the Benton opinion did not discuss the Teufel decision
anywhere.
For these reasons, I do not believe that the Allison II Court was correct in disregarding
the binding effect of the Teufel decision; therefore, I must part ways with the majority decision,
which concludes that the trial court erred in granting defendant's motion for summary disposition
of plaintiffs' statutory claims because the Allison II decision controls in this case. Further, I am
hopeful that this chronology will induce the cartographers within the Hall of Justice to provide a
concrete ruling for litigants, landlords, the bench, and the bar regarding their rights and
responsibilities when it comes to snow-covered surfaces, either sidewalks or parking lots, in the
state of Michigan.
/s/ Bill Schuette
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