             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                  revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS


ROSALIE ROCKOV,                                                        UNPUBLISHED
                                                                       June 25, 2020
               Plaintiff-Appellant,

v                                                                      No. 343967
                                                                       Wayne Circuit Court
LILLEY POINTE CONDOMINIUM                                              LC No. 17-004606-NO
ASSOCIATION, MAJESTIC CONDOMINIUM
MANAGEMENT, LLC, and TAMMY MARIE
THOMSON,

               Defendants-Appellees.


Before: MURRAY, C.J., and JANSEN and MARKEY, JJ.

PER CURIAM.

         Plaintiff appeals by right the trial court’s order granting defendants’ motion for summary
disposition in this premises liability action. We affirm in part and reverse and remand in part for
the trial court to address plaintiff’s statutory arguments.

         Plaintiff rented a condominium unit in the Lilley Pointe Condominium complex (the
complex). She was friends with Patsy and Steven Chambers, who also rented a condominium unit
in the complex. The owner of the Chambers’ unit was defendant Tammy Marie Thomson.
Defendant Lilley Pointe Condominium Association operated the complex, and defendant Majestic
Condominium Management, LLC, managed the complex. On November 28, 2016, Patsy
Chambers called plaintiff from work and asked plaintiff to go to the Chambers’ condominium and
ring the doorbell in order to wake up her husband, Steven. Plaintiff, who was 77 years old at the
time, agreed and headed over to the unit. In the front of the Chambers’ condominium was a small
elevated “porch” area that required one to take one step up to access the porch in the process of
going to the unit’s front door. Plaintiff successfully lifted her left foot onto the porch but then
tripped on the porch as she was bringing her right foot up to the landing. In her deposition, plaintiff
testified that she tripped on the step because it was higher than she expected. But she also testified
that she had previously been to the Chambers’ condominium unit and noticed that the step “seemed
higher than others that were around there.” At another point in the deposition, plaintiff testified
that she “kn[e]w it was higher.” Plaintiff suffered a right femur fracture from her trip and fall.


                                                 -1-
        Plaintiff filed a two-count complaint against the three defendants, alleging negligence and
gross negligence. Plaintiff claimed that she “tripped on a step that was later determined to be over
ten (10) inches in height.” Plaintiff also alleged, in part, that defendants failed “[t]o comply with
MCL 554.139 and other statutory duties.” Defendants moved jointly for summary disposition
under MCR 2.116(C)(8) and (10). Defendants argued that plaintiff could not establish the essential
elements of a premises liability claim. Defendants asserted that plaintiff had not shown the
existence of an unreasonably dangerous condition. Defendants further maintained that plaintiff
was fully aware that the porch step was unusually high; therefore, defendants had no duty to warn
her of, or protect her from, the danger. And, according to defendants, even if the porch step were
deemed unreasonably dangerous, the hazard was open and obvious. Additionally, defendants
argued that defendant Thomson, the owner of the Chambers’ condominium, was entitled to
summary disposition because she did not have possession or control of the porch. Next, defendants
contended that any claim that the step violated the Michigan Construction Code (MCC) was
irrelevant in determining the existence of a duty. Defendants also maintained that MCL 554.139
imposes a duty on lessors and licensors of residential premises and that the statute did not apply to
plaintiff “because none of the defendants was leasing or licensing the premises to her.” Finally,
defendants asserted that plaintiff failed to plead any facts or present any evidence supporting the
claim of gross negligence.

        Plaintiff filed a response to defendants’ motion for summary disposition. Plaintiff first
argued that the “assertion of the open and obvious doctrine is ineffective to escape the complex’s
statutory duty under MCL 554.139.” Plaintiff contended that “whether the step is considered part
of a common area or premises that must be kept fit for intended use, or whether it is solely part of
a premises that must be kept in reasonable repair and in compliance with local and state safety
laws and regulations, the condition of the step violated the statute.” Plaintiff next maintained that
a condominium project must comply with local law, ordinances, and regulations, MCL 559.241(1),
that the height of the porch step exceeded the 8¼-inch maximum height specified in the MCC, and
that the MCC had been adopted by the city of Canton, which is where the complex is located.
Relying on the Housing Law of Michigan, MCL 125.401 et seq., plaintiff additionally argued that
because of the MCC violation, the Chambers’ condominium unit constituted a dangerous building
under MCL 125.539, and keeping a dangerous building is unlawful pursuant to MCL 125.538.
Finally, plaintiff claimed that MCL 125.536(1) conferred a private cause of action for a violation
of the Housing Law of Michigan. Plaintiff did not argue that the porch step was not open and
obvious, did not assert that she had not been aware of the hazard, did not contend that the step was
effectively unavoidable, and did not posit that the step presented an unreasonably high risk of
severe harm. Plaintiff’s entire position was that the open and obvious danger doctrine was
inapplicable in light of defendants’ statutory duties.

        In a reply brief, defendants first argued that plaintiff had effectively conceded that
defendants were entitled to summary disposition on the alleged tort claims. Defendants next
reiterated that MCL 554.139 did not apply because it solely pertained to lessors and licensors.
Defendants also maintained that plaintiff cited no authority for the proposition that the Housing
Law of Michigan applies to a condominium complex. Additionally, defendants contended that
even if it did, MCL 125.536 only concerns portions of a “dwelling,” and the Chambers’ porch was
not within any portion of the dwelling. Finally, defendants reasserted that plaintiff’s arguments
regarding the requirements of the MCC were irrelevant in determining the existence of a duty.



                                                -2-
        At the hearing on the motion for summary disposition, the parties focused their arguments
on the alleged statutory obligations. Despite the oral arguments and briefing centered on MCL
554.139, MCL 559.241, the Housing Law of Michigan, and the MCC, the entirety of the trial
court’s ruling was as follows:

              Okay, the Plaintiff fell at 3:30 p.m., it was daylight out, so I think under
       Lugo v Ameritech this would be considered an open and obvious situation, so the
       Court will grant Defendant’s motion.

An order granting defendants’ motion for summary disposition was entered, indicating that it was
granted for the reasons stated on the record.

       Plaintiff moved for reconsideration, arguing that the court failed to reach the foundational
questions regarding whether the statutes and the MCC precluded application of the open and
obvious danger doctrine. Without any elaboration or findings, the trial court entered a form order
denying the motion for reconsideration. Plaintiff appeals by right.

        On appeal, plaintiff first argues in cursory fashion that the open and obvious danger
doctrine is only available as a defense to premises possessors and that none of the defendants
qualified because they did not have control over or possess the premises. Plaintiff next contends
that the open and obvious danger doctrine did not apply because a statutory duty existed under the
Condominium Act, MCL 559.101 et seq., and specifically MCL 559.241, which provides that “[a]
condominium project shall comply with applicable local law, ordinances, and regulations.”
Plaintiff maintains that the porch step violated MCL 559.241 by exceeding the maximum height
allowed by the MCC and that the MCC had been adopted by Canton. Additionally, plaintiff argues
that “special aspects” existed removing the case from the open and obvious danger doctrine
because the porch step was effectively unavoidable.

       Plaintiff’s arguments that none of defendants possessed the premises and that the porch-
step hazard was effectively unavoidable were not presented to the trial court. In Walters v Nadell,
481 Mich 377, 387-388; 751 NW2d 431 (2008), our Supreme Court spoke to the matter of issue
preservation in civil cases, observing:

                Michigan generally follows the “raise or waive” rule of appellate review.
       Under our jurisprudence, a litigant must preserve an issue for appellate review by
       raising it in the trial court. Although this Court has inherent power to review an
       issue not raised in the trial court to prevent a miscarriage of justice, generally a
       failure to timely raise an issue waives review of that issue on appeal.

               The principal rationale for the rule is based in the nature of the adversarial
       process and judicial efficiency. By limiting appellate review to those issues raised
       and argued in the trial court, and holding all other issues waived, appellate courts
       require litigants to raise and frame their arguments at a time when their opponents
       may respond to them factually. This practice also avoids the untenable result of
       permitting an unsuccessful litigant to prevail by avoiding its tactical decisions that
       proved unsuccessful. Generally, a party may not remain silent in the trial court, only
       to prevail on an issue that was not called to the trial court’s attention. Trial courts


                                                -3-
         are not the research assistants of the litigants; the parties have a duty to fully present
         their legal arguments to the court for its resolution of their dispute. [Quotation
         marks and citations omitted.]

Accordingly, the two unpreserved arguments were waived.

        Moreover, the porch step was not effectively unavoidable because plaintiff was not forced
or compelled to encounter the step. An exception to the duty owed for open and obvious dangers
arises when special aspects of a condition make even an open and obvious risk unreasonable.
Hoffner v Lanctoe, 492 Mich 450, 461; 821 NW2d 88 (2012). And special aspects exist when an
open and obvious hazard is effectively unavoidable. Id. at 463. “An ‘effectively unavoidable’
hazard must truly be, for all practical purposes, one that a person is required to confront under the
circumstances.” Id. at 472. The person “must be required or compelled to confront [the] dangerous
hazard.” Id. at 469; see also Wilson v BRK, Inc, 328 Mich App 505, 515; 938 NW2d 761 (2019)
(“[W]e conclude that the entranceway step was avoidable because plaintiff was not compelled to
patronize the bar and confront the step.”). Here, the porch step could have been avoided had
plaintiff simply declined to go to the Chambers’ condominium.

        With respect to plaintiff’s argument that the open and obvious danger doctrine did not
apply because none of defendants possessed or controlled the premises, we must find that the
argument is inadequately briefed and, along with being waived, is thus abandoned. Henry Ford
Health Sys v Everest Nat’l Ins Co, 326 Mich App 398, 406; 927 NW2d 717 (2018) (“we consider
this argument abandoned because a party cannot simply announce a position or assert an error and
then leave it up to this Court to discover and rationalize the basis for his claims, or unravel and
elaborate for him his arguments, and then search for authority either to sustain or reject his
position”) (quotation marks omitted). We also note that the argument would tend to undermine
any claim of premises liability. See Morelli v City of Madison Hts, 315 Mich App 699, 702-703;
890 NW2d 878 (2016) (“A plaintiff may only recover from a defendant for injuries caused by
conditions of the land if the defendant had legal possession and control of the premises . . . because
the person in possession is in a position of control and normally best able to prevent any harm to
others.”).

        Finally, on the issue of whether a statutory duty obviated the application of the open and
obvious danger doctrine, we conclude that the proper approach is to remand this case to the trial
court for the court to address the issue as it should have done in the first instance. We direct the
trial court, either from the bench or in a written opinion, to substantively address, analyze, and
resolve the issue. The trial court is to take into consideration this Court’s recent opinion in Wilson,
328 Mich App 505,1 along with any relevant statutory or caselaw authorities. The court shall allow
the parties to submit supplemental briefs.




1
    In Wilson, 328 Mich App at 317-321, this Court stated and ruled as follows:
                 “The open and obvious danger doctrine cannot be used to avoid a specific
         statutory duty.” Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710,



                                                    -4-
        We affirm with respect to summary dismissal of plaintiff’s common-law premises liability
claim, but we reverse and remand for further proceedings consistent with this opinion in regard to
plaintiff’s claim of liability predicated on violation of statutory duties. We do not retain
jurisdiction. We decline to award taxable costs under MCR 7.219.



                                                             /s/ Christopher M. Murray
                                                             /s/ Kathleen Jansen
                                                             /s/ Jane E. Markey




       720-721; 737 NW2d 179 (2007); see also Woodbury v Bruckner, 467 Mich 922
       (2002) (remanding the case because the open and obvious danger doctrine could
       not be employed to avoid the application of a duty established by statute), and Jones
       v Enertel, Inc, 467 Mich 266, 270; 650 NW2d 334 (2002) (rejecting argument that
       the open and obvious danger doctrine could be employed to avoid its statutory duty
       to maintain sidewalks in reasonable repair). To the extent that the trial court was of
       the view that the statutory-duty exception to the open and obvious danger doctrine
       is only implicated in regard to a lessor’s statutory obligations under MCL 554.139,
       we conclude that the court was mistaken. It is true that a lessor or landlord cannot
       rely on the open and obvious danger doctrine if a duty was violated under MCL
       554.139. See Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425 n 2; 751 NW2d
       8 (2008) (“[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).”). There is no indication in the caselaw,
       however, that the statutory-duty exception to the open and obvious danger doctrine
       is limited to duties created under MCL 554.139. Indeed, as noted earlier, the
       statutory-duty exception was recognized in Jones, 467 Mich at 270, in relation to a
       governmental agency’s duty to maintain sidewalks in reasonable repair.

                                               ***

               [T]he instant case entails statutory requirements to provide accessible,
       barrier-free entranceways to facilities open to the public. These requirements are
       plainly and directly intended to benefit and protect physically limited persons such
       as plaintiff. A barrier-free design that eliminates hindrances that deter physically
       limited persons from having access and free mobility to buildings is generally
       required under MCL 125.1352(1) and MCL 125.1351(b). Accordingly, the trial
       court erred by determining that the open and obvious danger doctrine applied to
       plaintiff’s allegations that defendants' entranceway step violated a statutory duty
       owed to persons with physical limitations.




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