CLICK HERE TO READ ENTIRE VOLUME

Volume XXVI, No. 19, September 30, 2014     

From the Law Offices of Garan Lucow Miller, P.C.

From the Editor: Sarah Nadeau 

****************************

 

COURT OF APPEALS HOLDS DEFENDANT PROPERTY OWNER ENTITLED TO SUMMARY DISPOSITION IN CASE IN WHICH PLAINTIFF SLIPPED AND FELL ON BLACK ICE CREATED BY WATER FROM A DEFECTIVE DOWNSPOUT

CONTRIBUTOR – DAVID M. SHAFER

 

The Court of Appeals recently issued a lengthy opinion in a case involving a plaintiff’s slip and fall on so-called black ice and, in doing so, ruled in favor of the defendant property owner on four separate grounds.

More specifically, the Court of Appeals issued a unanimous, unpublished opinion reversing Wayne Circuit Judge John Murphy’s order denying the defendant property owner’s motion for summary disposition in a case in which the plaintiff slipped and fell in December on so-called black ice that had formed as a result of water that had flowed from a defective downspout on leased property.

On December 19, the plaintiff went to get her hair cut by a hairdresser in a house in Harper Woods owned by the defendant and leased to the hairdresser.  The lease between the defendant and the hairdresser specified that the shoveling of snow and salting of sidewalks on the property during the winter months was the hairdresser’s responsibility.

According to the plaintiff, she did not see any snow or ice on the driveway or sidewalks on December 19.  The plaintiff alleged that she slipped and fell on “black ice” (invisible ice) on a sidewalk.  The plaintiff alleged that she only felt the ice after she had fallen and was lying on the ground.  According to the plaintiff, the black ice had been formed from water that had come from a defective downspout on the leased house.  The plaintiff alleged that the defect had been created by the defendant when the defendant disconnected the downspout from an underground drain.  The plaintiff alleged that this action by the defendant  allowed water to flow and unnaturally accumulate on the property’s driveway and walkways.

Three judges of the Court of Appeals unanimously reversed Wayne Circuit Judge John Murphy’s order denying the defendant’s motion for summary disposition, reciting four separate grounds for doing so.

First, the Court of Appeals held that the plaintiff’s claim sounded in premises liability, and not in ordinary negligence.  Claims of premises liability are subject to the duty-defeating doctrine of open and obvious danger, whereas claims of ordinary negligence are not subject to that doctrine.  The Court of Appeals suggested that the plaintiff used the label of ordinary negligence for her claim in this case because she merely wanted to avoid the doctrine of open and obvious danger being applied to her claim.  The Court of Appeals emphasized that a claim sounds in premises liability, and not in ordinary negligence, whenever the plaintiff’s injury arises from a dangerous condition on the land (as opposed to dangerous conduct on the land)–even when the plaintiff alleges that the premises possessor created the dangerous condition on the land.

Second, the Court of Appeals held that the plaintiff’s claim of premises liability must fail because the defendant in the case–the owner of the property–did not have possession and control of the property at the time of the plaintiff’s slip and fall.  An element of a claim of premises liability is that the defendant-owner of the property has possession and control of the property at the time of the plaintiff’s injury.  In this case, the one-year lease between the hairdresser and the defendant shifted possession and control of the property with regard to the removal of snow and ice to the hairdresser.  Therefore, according to the Court of Appeals, it was the hairdresser, and not the defendant property owner, who owed a duty to the plaintiff to keep the property safe from dangerous snow and ice at the time of the plaintiff’s injury.

Third, the Court of Appeals rejected the plaintiff’s claim that the defendant violated its statutory duty as a property owner under MCL 125.471 to maintain its roof so that rain water will be drained into the sewer system so as to avoid dampness in walls and unsanitary conditions.  The Court of Appeals stated that this statute simply does not impose any duty to remove snow and ice that form as a result of improper drainage of water from a downspout.

Fourth, the Court of Appeals rejected the plaintiff’s claim that the defendant violated its statutory duty as a landlord under MCL 554.139(1) to maintain all common areas of the leased property for their intended uses, to keep the leased property in reasonable repair, and to comply with all applicable health and safety laws.  The Court of Appeals stated that this statute applies to the contracting parties to a lease, but does not apply to a non-contracting third party, such as the plaintiff in this case.

Therefore, the three-judge panel of the Court of Appeals unanimously reversed Wayne Circuit Judge John Murphy’s order denying the defendant’s motion for summary disposition, and further specified that the defendant, as the prevailing party on appeal, could tax costs related to the appeal against the plaintiff.

The name of the case is Linda Ceaser v Saied Gouda and Salah Zoma, and the full eight-page, unanimous opinion of the Court of Appeals (Judges Michael Riordan, Pat Donofrio, and Mark Boonstra) is available Online for free at the following web link: http://publicdocs.courts.mi.gov:81/opinions/final/coa/20140821_c315446_36_315446.opn.pdf

************* 

REGISTER NOW! BUCKEYE SEMINAR

October 23, 2014

GREATER COLUMBUS CONVENTION CENTER

400 North High Street, Columbus, Ohio  43215

8:30 – 9:00 a.m. CONTINENTAL BREAKFAST / REGISTRATION

9:00 – 9:05 a.m. WELCOME AND INTRODUCTION

Speaker: SUSAN M. WILLIAMS, ESQ.

9:05 – 9:50 a.m. 2014 NO-FAULT LAW UPDATES

Speaker: SAMANTHA E. DRAUGELIS, ESQ.

9:50 – 10:35 a.m. TIPS & STRATEGIES IN DEFENDING PROVIDER SUITS:

CLAIMS THROUGH TRIAL

Speaker: MARK L. NAWROCKI, ESQ.

10:35 – 11:05 a.m. HOME MODIFICATION & TRANSPORTATION AGREEMENTS:

MCCA REQUIREMENTS POST ADMIRE

Speaker: SUSAN M. WILLIAMS, ESQ.

11:05 – 12:00 p.m. DEPOSITIONS OF CLAIM STAFF:

WHY WOULD YOU? HOW COULD YOU?

Speaker: JOHN W. WHITMAN, ESQ.

12:00 – 12:30 p.m. QUESTION & ANSWER SESSION

RETURN EVALUATION FORMS

Comprehensive written materials will be distributed to all program attendees.

To register: contact Eileen Carty: ecarty@garanlucow.com

*************

Garan Lucow Miller is hosting a U of M Tailgate

U of M v Indiana
When: Saturday, November 1, 2014
Game Time: 3:30 pm
Tailgate starts: 12:00 pm (Noon)
Where: Michigan Stadium
1201 South Main Street
Ann Arbor, MI 48104
Tailgate Location: Hospitality Area C
Enter off of West Stadium Blvd – Gate 1

Tailgate does NOT include tickets to the game

Please RSVP to Eileen Carty at ecarty@garanlucow.com

Hope you can join us!

*************