VICTORIA L GOTAUTAS V MARION APARTMENTS OF ST CLAIR
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STATE OF MICHIGAN
COURT OF APPEALS
VICTORIA L. GOTAUTAS,
UNPUBLISHED
November 16, 2006
Plaintiff-Appellant,
v
THE MARION APARTMENTS OF ST. CLAIR,
No. 270785
St. Clair Circuit Court
LC No. 05-001479-NI
Defendant-Appellee.
Before: Servitto, P.J., and Fitzgerald and Talbot, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting defendant’s motion for summary disposition
and dismissing plaintiff’s complaint with prejudice. We affirm.
Plaintiff slipped and fell on ice in the parking lot of her apartment building, owned and
operated by defendant, sustaining injuries to her ankle. On appeal, plaintiff argues that genuine
issues of material fact existed regarding whether defendant had constructive notice of the icy
condition of the parking lot, and whether defendant breached its duty to inspect the premises and
take reasonable measures to ensure that the common areas, including the parking lot, were fit for
their ordinary use. We disagree.
On appeal, this Court reviews a trial court’s decision on a motion for summary
disposition de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). This
Court must review the record in the same manner as the trial court to determine whether the
movant was entitled to judgment as a matter of law. Morales v Auto-Owners Ins, 458 Mich 288,
294; 582 NW2d 776 (1998); Scalise v Boy Scouts of America, 265 Mich App 1, 10; 692 NW2d
858 (2005). Review is limited to the evidence that had been presented to the trial court at the
time the motion was decided. Peña v Ingham County Road Comm, 255 Mich App 299, 313 n 4;
660 NW2d 351 (2003).
The mere occurrence of a fall on defendant’s premises is not enough to raise an inference
of negligence on the part of defendant. Andrews v K Mart Corp, 181 Mich App 666, 669; 450
NW2d 27 (1989). In a premises liability case, the plaintiff must prove the elements of a
negligence claim: (1) a duty owed by the defendant to the plaintiff, (2) the defendant breached
that duty, (3) the breach proximately caused plaintiff’s injury, and (4) the plaintiff suffered
damages. O’Donnell v Garasic, 259 Mich App 569, 573; 676 NW2d 213 (2003); Taylor v
Laban, 241 Mich App 449, 452-453; 616 NW2d 229 (2000). The duty owed by the landlord to
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the plaintiff varies with the plaintiff’s status on the land. Stitt v Holland Abundant Life
Fellowship, 462 Mich 591, 596-597; 614 NW2d 88 (2000). A tenant is an invitee of her
landlord. Stanley v Town Square Coop, 203 Mich App 143, 149; 512 NW2d 51 (1993). A
landlord, as an invitor, has a common law duty to exercise reasonable care to protect an invitee
from unreasonable risk of harm caused by dangerous conditions on the land. Lugo v Ameritech
Corp, 464 Mich 512, 516; 629 NW2d 384 (2001).
Usually, an accumulation of ice and snow presents an open and obvious danger. An
invitor has a duty to take reasonable measures within a reasonable time after an accumulation of
ice and snow to diminish the hazard of injury to an invitee only if the accumulation is not open
and obvious or there is some special aspect, which makes the accumulation unreasonably
dangerous. Mann v Shusteric Enterprises, Inc, 470 Mich 320, 328-329, 332-333; 683 NW2d 573
(2004). However, MCL 554.139 imposes a higher duty on landlords than on other invitors.
Benton v Dart Properties Inc, 270 Mich App 437, 443 n 2; 715 NW2d 335 (2006). MCL
554.139 provides, in relevant part:
(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 [sic] willful or
irresponsible conduct or lack of conduct.
***
(3) The provisions of this section shall be liberally construed . . . . [Emphasis
added.]
Thus, the open and obvious danger doctrine is not applicable when a tenant is injured because a
landlord failed to maintain the premises and the common areas fit for the use intended and in
reasonable repair. MCL 554.139(1)(a) and (b); O’Donnell, supra at 581. Rather, liability for
injuries due to the accumulation of ice and snow may be imposed on a landlord only if the
condition of the premises was caused by the landlord's active negligence, was known to the
landlord, or the condition was of such a character or duration that it should have been known.
Derbabian v S & C Snowplowing, Inc, 249 Mich App 695, 706; 644 NW2d 779 (2002);
Hampton v Waste Mgt of Michigan, 236 Mich App 598, 604; 601 NW2d 172 (1999). Thus, if
defendant did not create the icy condition, plaintiff must show that defendant should have known
about the condition and failed to take reasonable measures to prevent injury. Clark v K Mart
Corp, 465 Mich 416, 419; 634 NW2d 347 (2001); Benton, supra at 441.
Plaintiff argues on appeal that granting defendant’s motion for summary disposition was
not appropriate because reasonable minds may differ regarding whether defendant had
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constructive notice of the ice in the parking lot, and whether defendant breached the duty owed
to plaintiff. We disagree. Viewed in a light most favorable to plaintiff, the evidence did not
present a genuine issue of material fact regarding defendant’s notice of the ice.1
The day of plaintiff’s accident was clear and cold, with no snow or rain. Plaintiff stated
that it did not snow for a couple of days before the incident, and that she had no difficulty
walking to her car when she left her apartment to go to work early that morning. According to
plaintiff, there was no visible snow or ice in the parking lot. When she returned from work, on
her way from the parking lot to her apartment, plaintiff slipped and fell on the concrete portion of
the driveway, between the left wall of a garage and a sewer drain. Although nothing was
obstructing the area where she fell and it was still daylight, plaintiff did not see ice or snow on
the concrete before or after she fell. However, plaintiff claims she felt the ice when lying on the
ground. Plaintiff did not notice any salt in the parking area. However, the snow removal bill
indicates that snow was removed and salt was applied on the premises two days before the
accident. Notably, plaintiff presented no evidence showing how the ice patch developed, the
duration of time it had existed before plaintiff’s accident, or that defendant had actual notice of
the ice. There is also no indication that weather conditions were such that defendant would have
suspected ice could form in the parking lot area or would have determined the need to take
preventive measures. Although defendant owed plaintiff a duty of care, plaintiff failed to show
that defendant had actual or constructive notice of the existence of the alleged ice. Thus, the trial
court properly granted defendant’s motion for summary disposition.
Affirmed.
/s/ Deborah A. Servitto
/s/ E. Thomas Fitzgerald
/s/ Michael J. Talbot
1
On appeal, plaintiff relies on documents that were not presented to the trial court in connection
with defendant’s motion for summary disposition, such as weather reports, transcripts of other
depositions, and a copy of a contract for the snow and ice removal. This Court’s review is
limited to the evidence that had been presented to the trial court at the time the motion was
decided. Peña, supra at 310. Accordingly, we will review, in a light most favorable to plaintiff,
only the evidence presented in connection with defendant’s motion for summary disposition.
Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004).
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