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Michigan Supreme Court Lansing, Michigan

Opinion
IRVING ALLISON, Plaintiff-Appellee, v AEW CAPITAL MANAGEMENT, L.L.P., d/b/a SUTTON PLACE APARTMENTS, Defendant, and

Chief Justice:

Justices:

Clifford W. Taylor

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JUNE 25, 2008

No. 133771

VILLAGE GREEN MANAGEMENT COMPANY and BFMSIT, II, Defendants-Appellants. _______________________________ BEFORE THE ENTIRE BENCH MARKMAN, J. We granted leave to appeal to address the following questions: (1) whether parking lots in leased residential areas constitute "common areas" under MCL 554.139(1)(a); (2) whether the natural accumulation of snow and ice is subject to the lessor's duty set forth in MCL 554.139(1)(a) to keep premises and common areas "fit for the use intended by the parties"; and (3) whether the natural

accumulation of snow and ice is subject to the lessor's duty set forth in MCL 554.139(1)(b) to "keep the premises in reasonable repair." We answer the first two questions in the affirmative and the third question in the negative. Because we conclude that the duty set forth in MCL 554.139(1)(a) was not violated here because one to two inches of snow did not render the parking lot unfit for the use intended, we reverse the judgment of the Court of Appeals and reinstate the trial court's order granting summary disposition in favor of defendants. I. FACTS AND PROCEDURAL HISTORY Plaintiff fractured his ankle during a fall when he was walking on one to two inches of accumulated snow in the parking lot of his apartment complex. He then noticed ice on the ground where the snow had been displaced. Plaintiff filed suit against defendant AEW Capital Management, doing business as Sutton Place Apartments, alleging negligence and breach of the covenant to maintain and repair the premises, MCL 554.139(1). The trial court granted summary disposition to defendant, concluding that the danger was "open and obvious," and directed that the pleadings be amended to replace AEW with the proper defendants, Village Green Management Company and BFMSIT, II. The Court of Appeals affirmed the trial court's ruling on the basis of Teufel v Watkins, 267 Mich App 425, 429 n 1; 705 NW2d 164 (2005), which held that MCL 554.139(1) does not control a lessor's duty to remove snow and ice from a parking lot. Unpublished opinion per curiam, issued November 28, 2006 (Docket No. 269021). The panel expressed its disagreement with Teufel and sought a 2


conflict resolution panel. Id. After this request was denied, the panel granted plaintiff's motion for reconsideration and vacated its initial opinion. Unpublished order, entered January 19, 2007 (Docket No. 269021). The panel then reversed the trial court's grant of summary disposition, stating that Teufel did not constitute governing precedent because its holding regarding the inapplicability of MCL 554.139(1) was only presented in a footnote. Allison v AEW Capital Mgt, LLP (On Reconsideration), 274 Mich App 663, 669-670; 736 NW2d 307 (2007). The panel also concluded that a parking lot constitutes a common area under MCL 554.139(1)(a), that one of a parking lot's intended uses entails persons walking on it, and that a parking lot covered with ice is not fit for that purpose. Id. at 670-671. Defendants filed an application for leave to appeal in this Court, and we granted leave to appeal. 480 Mich 894 (2007). II. STANDARD OF REVIEW This Court reviews de novo the grant or denial of a summary disposition motion. Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007). Matters of statutory interpretation are also reviewed de novo. Id. Defendants moved for summary disposition under MCR 2.116(C)(8) and (10). A motion under MCR 2.116(C)(8) should be granted if the pleadings fail to state a claim as a matter of law, and no factual development could justify recovery. Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). A motion under MCR 2.116(C)(10) should be granted if the evidence submitted by the parties "fails to establish a genuine issue regarding any material fact, [and] the moving party is entitled to 3


judgment as a matter of law." Id. at 120; see also MCR 2.116(C)(10). There is a genuine issue of material fact when reasonable minds could differ on an issue after viewing the record in the light most favorable to the nonmoving party. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). III. ANALYSIS Plaintiff asserted two different causes of action in this case: (1) negligence and (2) breach of the covenants to keep the premises and common areas fit for their intended use and to keep the premises in reasonable repair, MCL 554.139(1).1 If defendants had a duty under MCL 554.139(1)(a) or (b) to remove snow and ice from the parking lot, then plaintiff could proceed on his second claim even if plaintiff's negligence claim was barred by the "open and obvious" danger doctrine.2 MCL 554.139 provides a specific protection to lessees and licensees of residential property in addition to any protection provided by the common law. The statutory protection under MCL 554.139(1) arises from the existence of a residential lease and consequently becomes a statutorily mandated

1 2

The merits of plaintiff's negligence claim are not before this Court.

Under common-law negligence principles, a premises owner has a duty to exercise reasonable care to protect an invitee from an unreasonable risk of harm caused by a dangerous condition on the premises, but not when the condition is "open and obvious." Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). However, a defendant cannot use the "open and obvious" danger doctrine to avoid liability when the defendant has a statutory duty to maintain the premises in accordance with MCL 554.139(1)(a) or (b). Woodbury v Bruckner, 467 Mich 922 (2002); O'Donnell v Garasic, 259 Mich App 569, 581; 676 NW2d 213 (2003).

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term of such lease. Therefore, a breach of the duty to maintain the premises under MCL 554.139(1)(a) or (b) would be construed as a breach of the terms of the lease between the parties and any remedy under the statute would consist exclusively of a contract remedy.3 A. "COMMON AREAS" MCL 554.139 provides: (1) In every lease or license of residential premises, the lessor or licensor covenants: (a) That the premises and all common areas are fit for the use intended by the parties. (b) To keep the premises in reasonable repair during the term of the lease or license, and to comply with the applicable health and safety laws of the state and of the local unit of government where the premises are located, except when the disrepair or violation of the Although the nature and extent of plaintiff's remedy are not at issue in this case, we note that, typically, a plaintiff's remedy for breach of contract is limited to damages that "arise naturally from the breach or those that were in the contemplation of the parties at the time the contract was made." Kewin v Massachusetts Mut Life Ins Co, 409 Mich 401, 414; 295 NW2d 50 (1980) (citation omitted). The purpose of this remedy is to "place the nonbreaching party in as good a position as if the contract had been fully performed." Corl v Huron Castings, Inc, 450 Mich 620, 625; 544 NW2d 278 (1996). The dissent "would hold that a plaintiff who proves a claim under MCL 554.139(1) is entitled to full damages for the injury," citing the Second Restatement of Torts,

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