Author(s): Sarah Robertson


The Court of Appeals continues to make it difficult for plaintiffs to succeed in cases involving claims of premises liability. In Jakubiec v VEI Friendly, LLC (Unpub, COA No. 273579, 7/8/08), the plaintiff claimed to have been injured when something caught her shoe as she was sliding or about to slide and release her bowling ball at defendant’s bowling alley. Plaintiff lost her balance and fell. One of plaintiff’s teammates found a crack in one of the floorboards in the path of plaintiff’s approach. The trial court found that the evidence was sufficient to create an issue of fact regarding the causation of plaintiff’s fall and whether defendant should have known about the cracked board.

On appeal, a two Judge majority of the Court of Appeals’ panel first struck down plaintiff’s claim of actual knowledge. The Court reviewed the evidence and determined that it did not show that defendant had actual knowledge of the cracked floorboard, that one of the defendant’s employees caused the condition, or that another customer discovered it and alerted defendant to its existence.

The Court then addressed the issue of constructive knowledge. An employee of the bowling alley testified in deposition that a crack such as the one in the floorboard could only be caused by an extraordinary event and such an event would have been noticed by the employee. The employee did not know of any such event

occurring on the day of plaintiff’s fall, or the day before her fall, and so speculated that if such an event occurred it must have been several days prior to plaintiff’s fall. The Court found that such testimony was speculative at best and so could not be the basis for a conclusion that an event in fact occurred at all. Plaintiff also claimed that defendant had constructive notice of the crack in the floorboard because it was of sufficient size that a mop used to clean the lanes would have snagged on the crack and alerted an employee to its existence. The Court found that such evidence was also insufficient to establish constructive knowledge where defendant’s employee testified that he mopped the floor every day and did not have any incidence of the mop snagging on the floor. The Court reasoned that the force of plaintiff’s fall must have exacerbated the crack so that defendant could not have had knowledge of it before the plaintiff’s fall.

Judge Fort Hood dissented from the majority’s decision that defendant had no notice of the alleged defect in its premises. Judge Fort Hood noted certain facts including that, just prior to her fall, plaintiff was bowling “cross- alley” from the left side of the lane. Judge Fort Hood also noted that plaintiff inspected her shoe before beginning to bowl and found no problems but inspected her shoe after her fall and found that the sole was coming away from part of the shoe at the tip where it was slightly torn. Judge Fort Hood then analyzed the notice question and seemed to find that the testimony of defendant’s employee regarding the amount of force necessary to cause a crack in the floorboard, and the testimony suggesting that a mop would have caught on the crack as it was after the fall, was sufficient to establish questions of fact regarding notice. Although no one testified to hearing or seeing an event of any significant force sufficient to cause such a crack, and no one testified that a mop ever caught on the crack prior to plaintiff’s fall, Judge Fort Hood believed that plaintiff had presented sufficient circumstantial evidence that the defect in the floor was present before she bowled, and that defendant should have had notice of the defect because of the significant force necessary to cause the crack and because proper mopping procedures would have caused the mop to snag on a crack such as the one found by plaintiff after her fall.


It is well-established in Michigan case law that the open and obvious danger doctrine cannot be used by a landowner to avoid liability for a condition on the property that is also considered a breach of a statutory obligation. MCL 554.139(1) requires that a landowner keep the premises and all common areas fit for their intended use, and that the premises be kept in reasonable repair during the term of the lease. That same statute, however, also provides that the parties to a lease or license may modify the obligation imposed by the section where the lease or license has a current term of at least one year. MCL 554.139(2).

In Capp v Redmond (Unpub, COA No. 278137, 7/1/08), the Court of Appeals addressed these two statutory provisions. In Capp, plaintiff and her family lived in one apartment of a duplex owned by defendant. Plaintiff initially signed a twelve-month lease in May 2003, and then another twelve-month lease in May 2004. Under that lease, plaintiff was responsible for the general maintenance, upkeep and appearance, snow plowing and

removal, grass cutting, cleanliness and tidiness of the grounds. Plaintiff and her family shoveled the walks, salted the steps and hired someone to plow the driveway.

On December 24, 2004, plaintiff chipped ice from the main entrance steps and put salt on the steps. Later that same day plaintiff slipped and fell on ice as she was going up the main entrance steps. Plaintiff brought a common law negligence claim and statutory claim against defendant. The trial court granted defendant’s motion for summary disposition finding that plaintiff was responsible for maintaining the premises according to the lease, the icy steps were open and obvious, and another entrance was available for plaintiff to use.

The Court of Appeals affirmed the trial court’s decisions on both the common law negligence claim and the statutory claim. Regarding the statutory claim, the Court found that the provisions of the lease between plaintiff and defendant modified the defendant’s statutory duty under MCL 554.139(1). The Court also noted that the mention of snow removal in the lease, and the failure to mention ice removal in the lease, was of no consequence because the removal of snow and ice are too closely linked. The Court found that where the statutory duties of defendant were modified, and plaintiff accepted the responsibility associated with those modifications, summary disposition in favor of defendant was appropriate.

The Court also noted that summary disposition of plaintiff’s common law negligence claim was appropriate where the ice was open and obvious.