Over the last four years, there have been numerous Michigan Court of Appeals decisions addressing slip and falls on the Condominium Premises. Given that Michigan’s weather is turning colder by the day, the risk of significant personal harm on slippery snow and ice only increases. As a continuation in this series regarding slip and falls on the Condominium Premises in Michigan, this article explores an unpublished Michigan Court of Appeals decision in 2018 that expanded the case law related to invitees to the condominium as opposed to slip and falls by co-owners.
In November 2015, I wrote an article titled “Legal Update: Slip and Fall on the Condominium Premises: Does the Condominium Owe a Statutory Duty to Its Co-owners?” The article centered around a 2015 published decision by the Michigan Court of Appeals in Francescutti v Fox Chase Condominium Association, 312 Mich App 640; 886 NW2d 801 (2015), which held that a co-owner who slipped and fell on the common elements and suffered injuries to his hand and wrist could not recover from his Association nor its property manager under a breach of contract or negligence theory. This binding Michigan precedent prompted significant discussion and disagreement amongst Michigan lawyers, associations and co-owners regarding what duties are owed to co-owners by the association and property manager.
In April 2017, in a follow-up article titled, “Legal Update: Slip and Falls on the Condominium Premises and the Open and Obvious Doctrine” the article centered around the 2017 unpublished opinion by the Michigan Court of Appeals in Zimmer v Harbour Cove on the Lake Condominium Community, et al, Unpublished Per Curiam Decision of the Michigan Court of Appeals, March 14, 2017 (No. 331545). In that case, Mr. Zimmer visited a friend’s condominium and Mr. Zimmer slipped and fell on the condominium’s sidewalk breaking his femur. Mr. Zimmer sued the Association, its property manager and the snow removal company for his injuries. The defendants argued that Zimmer’s claims for negligence, premises liability and nuisance all sounded in premises liability and that such claims were barred by the Open and Obvious Doctrine. In essence, the defendants argued that 1) it was winter in Michigan, 2) it was cold, 3) there was snow on the ground and 4) there was snow where Zimmer fell. The Open and Obvious Doctrine is primarily used as a defense to premises liability cases and provides that a premises possessor is generally not required to protect an invitee from open and obvious dangers and that “an obvious danger is no danger to a reasonably careful person.” Novotney v Burger King Corp (On Remand), 198 Mich App 470, 474; 499 NW2d 379 (1993).
In its analysis, the Michigan Court of Appeals stated that a danger is considered open and obvious “if, under an objective standard, it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection.” (citation omitted). Ultimately, in that case, the Michigan Court of Appeals held that Zimmer’s injury was the result of an avoidable open and obvious danger and there was no evidence of a special aspect to the icy condition that would justify holding either the Association or its property manager liable under a premises liability theory.
Smith v. Aberdeen Village Association (2018)
More recently, in 2018, the Michigan Court of Appeals expanded upon Michigan case law related to slip and falls on the Condominium Premises. In Smith v Amberdeen Village Association, Unpublished Per Curiam Decision of the Michigan Court of Appeals, February 27, 2018 (No. 335511), the Michigan Court of Appeals analyzed another slip and fall case on the condominium premises. In that case, the plaintiff (“Smith”) resided in a condominium unit owned by his sister, the co-owner of the condominium unit. While Smith paid his sister monthly rent, Smith was not a co-owner within the condominium and not an owner-in-common of the common elements of the condominium. This simple fact was important to the decision by the Michigan Court of Appeals.
On December 20th, Smith arrived home around 6:30 A.M. after his shift as a limousine driver. Smith testified that he did not observe icy conditions on his drive home and that he scanned the entire parking lot for snow and ice before exiting his vehicle. Smith claimed that he exited his vehicle, took approximately five (5) steps and then fell only then realizing that the entire parking lot was covered in ice. Smith claimed that the Association and its property manager failed to timely clear the ice that caused his fall.
Smith and his sister testified that there was no salt in the parking lot at the time of the fall and the parking lot was dimly lit. Smith suffered a fracture to his right ankle and missed work during his recovery. Smith then sued the Association and its property manager alleging that he was an invitee to the condominium complex and therefore the Association and property manager were responsible for his damages.
The Association and property manager relied on the holding in Francescutti v Fox Chase Condominium Association, 312 Mich App 640; 886 NW2d 801 (2015), above, to argue that Smith and his sister were tenants in common of the common elements of the condominium and that the Association and property manager had no knowledge of the icy condition. Thus, the Association claimed that they could not be held liable for Smith’s alleged damages.
Ultimately, the Court of Appeals held that because Smith was not a co-owner of the common elements of the condominium, the holding in Francescutti did not apply. Instead, the Court of Appeals remanded the case back to the trial court to determine whether the association or its property manager had actual or constructive notice of the icy conditions as required by the holding in Lowrey v LMPS & LMPJ, Inc., 500 Mich 1; 890 NW2d 344 (2016). If the Association and property manager had actual or constructive notice of the icy conditions, that could then trigger a legal duty by the Association and its property manager owed to Smith. However, the Court of Appeals sent the case back down to the trial court to make that factual determination.
When analyzing slip and fall cases in Michigan condominiums, the starting point for the last few years has begun with Francescutti v Fox Chase Condominium Association, because it is binding Michigan case law. However, based upon the Lowrey v LMPS & LMPJ, Inc. and Smith v Amberdeen Village Association decisions, the question arises whether non-co-owner occupants have greater protections under Michigan law than do co-owner occupants of a condominium unit in Michigan. Unfortunately, as Michigan is increasingly becoming colder, additional cases and differing factual scenarios will inevitably arise and new cases from the Michigan Court of Appeals will likely result in clarification of this body of law. If you or your association is involved in a slip and fall case, seek immediate assistance with competent counsel in this evolving body of case law.
Joe Wloszek is a Member of Hirzel Law, PLC where he focuses his practice on condominium and homeowner’s association law, commercial litigation, commercial real estate, large contractual disputes, and related real estate matters. Mr. Wloszek has been a Super Lawyers Rising Star in Real Estate Law from 2013-2019, an award given to only 2.5% of the attorneys in Michigan each year. He was also named a Top Lawyer in commercial law by DBusiness Magazine in 2014, a Michigan Top Lawyer in real estate law by Michigan Top Lawyers in 2016. He is a Certified Real Estate Continuing Education Instructor through the State of Michigan and the former Chair of the Oakland County Bar Association Real Estate Committee. He can be reached at (248) 480-8758 or firstname.lastname@example.org.