What happens if a Co-owner slips and falls on the condominium premises? Does the Co-owner have a right to sue the Association or its property manager for failing to maintain the common areas in reasonable repair? On October 15, 2015, in a case of first impression, the Michigan Court of Appeals determined that a Co-owner who slipped and fell on an icy, snow-covered sidewalk resulting in severe injuries to the Co-owner’s hand and wrist, cannot recover damages from his Association or its property manager for breach of contract or negligence. This decision represents a major victory for every Association and property manager in Michigan.
The general rule in Michigan is that open and obvious dangers are not recoverable absent ‘special aspects’ of the condition to justify imposing liability on a defendant. In Lugo v Ameritech Corp, 464 Mich 512 (2001), the Michigan Supreme Court held that a pothole in a parking lot was open and obvious and therefore the plaintiff could not recover for the damages sustained after a fall. Often times, Michigan attorneys will refer to this defense as the Open and Obvious Doctrine. Similar to open and obvious potholes in a parking lot, the general rule is that snow and ice are normally open and obvious in Michigan and do not present ‘special aspects’ to justify imposing liability on a defendant. See Hoffner v Lanctoe, 492 Mich 450 (2012). Since the publication of Lugo, Plaintiff’s attorneys have attempted to find new and creative ways to avoid the Open and Obvious Doctrine in order to recover damages for their clients.
As with most general rules, there are typically exceptions. In residential landlord-tenant cases, there is an exception to the Open and Obvious Doctrine. In Allison v AEW Capital Mgt, LLP, 481 Mich 419 (2008), the Michigan Supreme Court held that “a defendant cannot use the ‘open and obvious’ danger doctrine to avoid liability when the defendant has a statutory duty to maintain the premises….” Emphasis added. Thus, if there is a statutory duty to maintain the premises, then the Open and Obvious Doctrine does not apply as a defense.
Under MCL 554.139(2), in residential landlord-tenant situations, there is a statutory duty imposed by law on the landlord to maintain the premises in reasonable repair unless modified by the parties to the lease. The question becomes, “Does a condominium Association or its property manager have a statutory duty to maintain the condominium premises in reasonable repair?” In a recent decision, the answer is surprisingly no.
In Francescutti v. Fox Chase Condominium Association, __ Mich App __ (2015) (Docket No. 323111), Mr. Francescutti (the “Co-owner”) was walking his dog on the condominium premises and he slipped and fell. The Co-owner sustained severe injuries to his hand and wrist and sued his Association and its property manager for Breach of Contract and Negligence.
First, the Co-owner argued that MCL 554.139 imposes a duty on the Association and its property manager to maintain the property in reasonable repair. The Co-owner’s argument was premised on the Condominium Act, specifically MCL 559.136, which states, “The master deed may provide that undivided interests in land may be added to the condominium project as common elements in which land the co-owners may be tenants in common, joint tenants, or life tenants with other persons.” The Co-owner argued that he was a ‘tenant in common’ with the other Co-owners of the common areas of the development. The Michigan Court of Appeals disagreed and held that MCL 559.139 only applies to lessors of land and the Association did not ‘lease’ land to the Co-owner.
Second, the Co-owner argued that he was a licensee to the common areas of the condominium premises. The Court of Appeals held that a licensee is a person privileged to enter the land of another. Since the Co-owner owned the common areas with all of the other Co-owners, the Co-owner did not enter the land of another.
Third, the Co-owner relied upon the Association’s Snow Removal Policy as the alleged basis for a ‘duty’ imposed on the Association to maintain the condominium premises in reasonable repair. The Court of Appeals held that the Snow Removal Policy did not represent a contract that actually created a duty, much less any evidence that any such duty was actually breached.
This recent, published decision represents an important protection in favor of Associations and their property managers. Co-owners should be aware of this decision and exercise additional caution on the condominium premises. While not addressed in this case, the question becomes whether your condominium Bylaws or Association’s snow removal contract creates a contractual duty to maintain the premises in reasonable repair. Such a determination will be on a case-by-case basis and your Association should review its Bylaws and snow removal contracts with an experienced attorney.
Joe Wloszek is an attorney in our Livonia office where he focuses his practice on dispute avoidance, condominium law, commercial litigation, commercial real estate, large contractual disputes, and title litigation. He may be reached at (734) 261-2400 or firstname.lastname@example.org.