                          STATE OF MICHIGAN

                            COURT OF APPEALS



BARBARA D. KOHLMAN,                                                  UNPUBLISHED
                                                                     March 20, 2018
               Plaintiff-Appellee,

v                                                                    No. 334825
                                                                     Macomb Circuit Court
ROBERT SPEAR,                                                        LC No. 2015-000619-NO

               Defendant-Appellant.


Before: MURRAY, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

        Defendant appeals by leave granted the trial court’s order granting in part and denying in
part defendant’s motion for summary disposition pursuant to MCR 2.116(C)(8) and (C)(10) in
this premises liability action. 1 We reverse and remand for entry of an order granting summary
disposition in favor of defendant.

                          I. FACTS AND PROCEDURAL HISTORY

        Plaintiff initiated this action after she was injured after falling down the basement stairs
of 24803 Tuscany (the subject property), in Eastpointe, Michigan during a New Year’s Eve party
on December 31, 2013. The home is owned by defendant, who at the time of plaintiff’s accident
was leasing the home to Jolanda Gillich. Gillich is the girlfriend of Bryan Weaver, and plaintiff
knew Gillich and Weaver through her then-boyfriend, Randy Day. In her two-count complaint,
plaintiff alleged that she fell down the stairway because the stairway did not have a properly
affixed handrail, and also as a result of defective lighting over the stairway and landing leading
to the stairway. After defendant moved for summary disposition pursuant to MCR 2.116(C)(8)
and (C)(10), the trial court granted the motion in part and denied it in part. As relevant to this
appeal,2 the trial court reasoned that genuine issues of material fact existed concerning



1
  Only the portion of the trial court’s order denying defendant’s motion for summary disposition
is at issue in this appeal.
2
 The trial court also ruled that defendant did not owe a common law duty of care to plaintiff
where he was not in possession and control of the subject premises at the time of plaintiff’s fall.


                                                -1-
defendant’s duty to plaintiff where the record contained evidence that defendant violated
applicable municipal ordinances concerning maintenance of the subject premises. Defendant
now appeals by leave granted.

        On appeal, defendant contends that the trial court erred in denying his motion for
summary disposition where any alleged violations of a municipal ordinance cannot give rise to a
duty of care owed by defendant to plaintiff. We agree.

                                II. STANDARD OF REVIEW

        Defendant moved for summary disposition pursuant to MCR 2.116(C)(8) and (C)(10),
and the trial court’s denial of the motion implicated both subsections of the court rule. A trial
court’s decision concerning a motion for summary disposition is reviewed de novo. Maiden v
Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999).

                [A motion for summary disposition pursuant to MCR 2.116(C)(8)] tests
       the legal sufficiency of a claim and must be determined on the basis of the
       pleadings alone. All factual allegations supporting the claim and any reasonable
       inferences that can be drawn from the facts are accepted as true. A motion under
       MCR 2.116(C)(8) should only be granted when the claim is so clearly
       unenforceable as a matter of law that no factual development could possibly
       justify recovery. [Lakin v Rund, 318 Mich App 127, 131; 896 NW2d 76 (2017).]

      In Auto-Owners Ins Co v Campbell-Durocher Group Painting & Gen Contracting, LLC,
___ Mich App ___, ___; ___ NW2d ___ (2017) (Docket Nos. 331384, 331389, 331802,
331803), slip op at 5, this Court stated, in pertinent part, as follows:

               We review de novo a trial court’s decision on a motion for summary
       disposition. . . . Summary disposition is appropriate under MCR 2.116(C)(10) if
       there is no genuine issue regarding any material fact and the moving party is
       entitled to judgment as a matter of law. A genuine issue of material fact exists
       when reasonable minds could differ on an issue after viewing the record in the
       light most favorable to the nonmoving party. [Citations and quotation marks
       omitted.]

       Whether a defendant owes a plaintiff a duty is a question of law that this Court reviews
de novo. Fultz v Union-Commerce Assoc, 470 Mich 460, 463; 683 NW2d 587 (2004).

                                        III. ANALYSIS




See Merritt v Nickelson, 407 Mich 544, 552; 287 NW2d 178 (1980). This ruling is not at issue
in this appeal.


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        Where plaintiff has alleged a premises liability claim,3 she is first required to establish
that defendant breached a duty of care to her, and that breach of duty “constituted the proximate
cause of [her] damages.” Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 8; 890 NW2d 344 (2016).
At issue in this case is whether defendant owed plaintiff a duty, where he had leased the subject
premises to Gillich at the time of plaintiff’s fall. In Ward v Frank’s Nursery & Crafts, Inc, 186
Mich App 120, 123; 463 NW2d 442 (1990), the plaintiff sued the defendants City of East
Detroit, Frank’s Nursery and Crafts and Pete and Franks Fruit Ranch after she was injured in a
slip and fall accident that took place in a public alley or walkway, owned by the city but
providing access to both Frank’s Nursery and the fruit ranch. This Court concluded that
summary disposition was improperly granted in favor of Frank’s Nursery with respect to
plaintiff’s negligence claim where Frank’s Nursery demolished a wall separating the alley from
its business premises, and thus contributed to the alleged dangerous condition in the alley leading
to the plaintiff’s fall. Id. at 133-134. However, when addressing the grant of summary
disposition in favor of Pete and Franks Fruit Ranch, this Court stated, in pertinent part, as
follows:

       Pete & Franks Fruit Ranch was also a business operating on premises adjacent to
       the public alleyway. Because the accident did not occur on its premises, it is not
       liable to plaintiff on any theory of premises liability. Unlike the case against
       Frank’s Nursery, plaintiff advances no evidence or plausible argument connecting
       Pete & Franks Fruit Ranch to the condition of the alleyway causing the accident.
       Plaintiff’s reference to a city ordinance is unhelpful because violation of an
       ordinance, without more, will not serve as the basis for imposing a legal duty
       cognizable in negligence theory. Although violation of an ordinance may be
       evidence of negligence, this has little or no bearing upon the purely legal question
       whether defendant owes plaintiff a duty in the first place. We can, however,
       conceive of instances where an ordinance may impose a duty on an actor
       depending upon the relationship of the parties. The case before us, though, does
       not present one of those instances. Accordingly, summary disposition in favor of
       defendant Pete & Franks Fruit Ranch is affirmed. [Id. at 134-135 (citation
       omitted; emphasis added).]

This Court has subsequently reaffirmed this principle of law concerning municipal ordinances as
they relate to the existence of a duty of care. See Summers v Detroit, 206 Mich App 46, 52; 520
NW2d 356 (1994) (holding that “[a]lthough violation of an ordinance may be some evidence of
negligence, it is not in itself sufficient to impose a legal duty cognizable in negligence[.]”); Berry
v J & D Auto Dismantlers, Inc, 195 Mich App 476, 485; 491 NW2d 585 (1992) (recognizing that
“violation of an ordinance has no bearing on the question of duty[.])”

       While the trial court concluded that plaintiff’s claims against defendant sounded in
premises liability, rather than ordinary negligence, the principle of law that an alleged violation



3
  The trial court struck as redundant plaintiff’s claim alleging negligence, and this ruling is not at
issue on appeal.


                                                 -3-
of a municipal ordinance will not give rise to a duty of care is still applicable in this case,
regardless of whether plaintiff alleges negligence or premises liability. This is because, as this
Court has recognized, the elements of a premises liability claim draw on the elements of a
negligence claim. “In a premises liability action, a plaintiff must prove the elements of
negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3)
the breach was the proximate cause of the plaintiff’s injury, and (4) the plaintiff suffered
damages.” Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 693; 822 NW2d 254
(2012) (citation and quotation marks omitted).

        In concluding that defendant owed plaintiff a duty of care, the trial court cited Chapter 6
of the International Property Maintenance Code, adopted by the City of Eastpointe in its Code of
Ordinances, which provides, in pertinent part, as follows:

       601.2 Responsibility. The owner of the structure shall provide and maintain
       mechanical and electrical facilities and equipment in compliance with these
       requirements. A person shall not occupy as owner-occupant or permit another
       person to occupy any premises which does not comply with the requirements of
       this chapter.

                                             * * *

       605.1 Installation. All electrical equipment, wiring and appliances shall be
       properly installed and maintained in a safe and approved manner.

                                             * * *

       605.3 Luminaires. Every public hall, interior stairway, toilet room, kitchen,
       bathroom, laundry room, boiler room and furnace room shall contain at least one
       electric luminaire. [Emphasis in original.]

        In denying summary disposition pursuant to MCR 2.116(C)(8) and (C)(10), the trial court
considered Gillich’s deposition testimony, where she stated that when plaintiff fell on December
31, 2013, there were two light bulbs illuminating the stairway where plaintiff fell, one at the top
of the stairway, and one at the bottom. The trial court also noted the deposition testimony of
Jonathan Miller, another guest at the party, who testified that he did not see a light in the
stairway or landing where plaintiff fell and that he could not find a light switch to turn on. The
trial court also considered Day’s testimony that there was no light on the landing where plaintiff
fell, and that the only light illuminating the area came from the kitchen on the second floor, as
well as from outside the subject premises. In the trial court’s view, these factual discrepancies
amounted to genuine issues of material fact that warranted trial on the issue of defendant’s duty,
and summary disposition pursuant to MCR 2.116(C)(10) was precluded. The trial court also
stated that summary disposition pursuant to MCR 2.116(C)(8) was inappropriate where it was
not persuaded that further factual development would not justify recovery in favor of plaintiff.
However, the trial court’s ultimate conclusion that summary disposition should not be granted in
favor of defendant was based on the erroneous legal premise that defendant’s alleged violation of
the municipal ordinances could give rise to a legal duty of care to plaintiff. Where that ruling
was incongruent with published authority of this Court, the trial court’s ruling was in error.

                                                -4-
Where defendant therefore did not owe plaintiff a duty of care, her claims against him are
deficient as a matter of law, and summary disposition should be entered in defendant’s favor.

                                     IV. CONCLUSION

        We reverse the portion of the trial court’s order denying defendant’s motion for summary
disposition and remand for entry of an order granting summary disposition in favor of defendant.
We do not retain jurisdiction.



                                                           /s/ Christopher M. Murray
                                                           /s/ Mark J. Cavanagh
                                                           /s/ Karen M. Fort Hood




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