Slip and Fall on Sidewalk in Housing Cooperative
In dismissing a slip and fall case that occurred in a common area, the Michigan Court of Appeals delved into the differences between a housing cooperative and a condominium. Jeffrey-Moise v. Williamsburg Towne Houses Cooperative, Inc., No. 351813, 2021 WL 650475 (Mich. Court of Appeals, approved for publication on April 1, 2021).
In this case, the Plaintiff, a member and resident of the Defendant housing cooperative, cleared snow from her personal walkway in the back of her townhome, but, as she walked on the community walkway toward the front of her townhome to clear snow from her front porch, she slipped and fell on black ice, severely injuring her ankle.
The Plaintiff sued the housing cooperative on premises liability and negligence theories. The housing cooperative moved for summary disposition on three arguments: 1) that as a co-owner of the cooperative, the Plaintiff had not alleged a valid premises liability claim since she was not on the land of another when she was injured; 2) that the ice was an open and obvious condition; and 3) that she had not alleged a valid common law claim for negligence.
Significantly, this Plaintiff slipped and fell in a common area of the housing cooperative of which she was a member. A housing cooperative is a form of real estate ownership in which those who occupy the premises do not own them. Cooperative housing can take various forms. In this case the housing cooperative was a corporation, with the corporation owning the fee to the real estate and the individual cooperative members holding the shares of stock in the corporation and receiving leases from the corporation to individual apartments. The cooperative association retained exclusive control over the common areas of the cooperative, including the duty to maintain the common areas.
In discussing the facts, the Court of Appeals compared a membership in a cooperative with ownership of a condominium. In both circumstances, the member and owner are entitled to exclusive possession of a unit, but only condominium owners have an undivided interest as tenants in common with the other owners of the common areas. The basic difference between condominium and cooperative housing is that the individual purchasing a condominium takes title to the condominium unit while the individual purchasing a membership in a cooperative owns stock in a cooperative corporation and receives a lease for a specific unit for which the individual pays a regular amount to the corporation as a proportionate share of the operating expenses of the cooperative.
In this case, the housing cooperative was governed by its governing documents, including the Articles of Incorporation, Bylaws, and Occupancy Agreements. Each resident member of the cooperative purchased a membership in the cooperative, having the right to exclusively occupy a housing unit for three years (renewable in three-year increments), as well as to use the common areas of the cooperative’s premises. Additionally, each member had the right to participate in the operation and management of the cooperative. The Occupancy Agreement further provided that the cooperative had the right to terminate a member’s membership with notice four months before expiration. A member could sell his or her membership interest or leave his or her membership interest to an heir through a will or trust only with the consent of the cooperative corporation. Similarly, a member could sublet his or her individual unit only with the consent of the cooperative corporation. The Occupancy Agreement required the Plaintiff to pay monthly fees to the cooperative for maintenance and administration of the cooperative. Similar to a traditional landlord-tenant relationship, the cooperative could evict the Plaintiff if she breached the Occupancy Agreement.
At the trial court, the judge denied the housing cooperative’s Motion for Summary Disposition for several reasons.
The trial court relied on MCL 554.139, which provides that, in addition to common law duties that a possessor of land owes to invitees, landlords who lease or license their property to residential tenants covenant that the premises and all common areas are fit for the use intended by the parties. Moreover, the judge found that a genuine issue of material fact existed regarding whether the condition upon which the Plaintiff fell was open and obvious.
On appeal, the Michigan Court of Appeals reversed the trial court and remanded the case for entry of judgment in favor of the housing cooperative.
As for the premises liability claim, the Court of Appeals disagreed with the housing cooperative’s argument that the Plaintiff was not on the land of another when she fell. Premises liability is based upon the duty a possessor of the premises owes to a person entering the land of another. In her Complaint, the Plaintiff alleged that she was an invitee on the housing cooperative’s land. The housing cooperative responded that, as a member of the housing cooperative, the Plaintiff was a co-owner of the cooperative’s premises and therefore was not on the land of another when she fell. The Court of Appeals, noting that the housing cooperative was relying on a case in which the injured person was a condominium owner, distinguished that case, emphasizing that condominium owners are co-owners as tenants in common of the common areas of the development. In contrast, a housing cooperative member has no ownership in the common areas of the development. Accordingly, the Plaintiff in this case was on the land of another when she fell.
Despite making this significant distinction, the Court of Appeals still found in favor of the housing cooperative, finding that the black ice upon which the Plaintiff slipped constituted an open and obvious condition since the fall occurred in January, the temperature was 32 degrees and snow had been falling throughout the day.
A premises possessor generally has no duty to remove an open and obvious danger. Accordingly, the housing cooperative’s duty to maintain did not extend to the removal of an open and obvious condition.
As for the negligence claim, the Court agreed that the alleged negligence on the part of the housing cooperative in failing to maintain the common area was properly dismissed by the trial court since the injury arose from black ice, which was a condition upon the land.
In the end, the determinative factor in this case was the application of the open and obvious doctrine rather than the fall occurring in the common area of a housing cooperative. The Michigan Supreme Court has held that the open and obvious doctrine is predicated on the strong public policy that people should take reasonable care for their own safety and precludes the imposition of a duty upon a premises possessor to take extraordinary measures to keep people safe from reasonably anticipated risks. Accordingly, the possessor of land is not required to protect against an open and obvious condition, whether a housing cooperative or condominium.
Joel B. Ashton is a partner in our Livonia office and focuses his practice on insurance defense, including Michigan No-Fault claims (PIP, automobile negligence, uninsured/underinsured motorist), as well as premises liability and general negligence. He has handled a variety of cases involving condominium associations, condominium association members, and general real estate matters as part of his general practice. Mr. Ashton maintains an AV Preeminent Rating from Martindale-Hubbell, which is the highest possible rating an attorney can achieve for both ethical standards and legal ability. He may be reached at (734) 261-2400 or firstname.lastname@example.org.