A few years ago, 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 slip and fell on the common elements and suffered injuries to his hand and wrist could not recover from his Association or its property manager under a breach of contract or negligence theory.
On March 14, 2017, the Michigan Court of Appeals analyzed a similar case to Francescutti. In Zimmer v Harbour Cove on the Lake Condominium Community, et al, Unpublished Per Curiam Decision of the Michigan Court of Appeals, March 14, 2017 (No. 331545), Nick Zimmer visited a friend’s condominium and Mr.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. Previously, the Michigan Supreme Court held that open and obvious dangers are not recoverable absent ‘special aspects’ of the condition to justify imposing liability on a defendant. See Lugo v Ameritech Corp, 464 Mich 512 (2001). In support of his claim that there were “special aspects” of the icy condition, Zimmer stated that the downspouts were negligently placed in such a way for ice to develop over the sidewalk where he fell and that he fell on “black ice” that was not covered by snow.