                          STATE OF MICHIGAN

                           COURT OF APPEALS


GREGORY SMITH,                                                     UNPUBLISHED
                                                                   February 27, 2018
               Plaintiff-Appellee,

v

AMBERDEEN VILLAGE ASSOCIATION and                                  No. 335511
STAMPER & COMPANY,                                                 Macomb Circuit Court
                                                                   LC No. 2015-002388-NO
               Defendant-Third-Party Plaintiffs-
               Appellants,
and

AMBERDEEN VILLAGE, LLC,

               Defendant-Third-Party Plaintiff,

and

MILLER LANDSCAPING, INC,

               Defendant-Third-Party Defendant.


Before: GLEICHER, P.J., and BORRELLO and SWARTZLE, JJ.

PER CURIAM.

        In this slip-and-fall action, plaintiff sued defendants, Aberdeen Village Association (the
Association) and Stamper and Company (Stamper), on statutory and common-law claims
alleging that they did not timely clear the ice that caused plaintiff’s fall. Defendants moved for
summary disposition, and the trial court denied the motion. Defendants appeal by leave granted.
We affirm in part and remand in part.

                                      I. BACKGROUND

       The facts of this case are straightforward. In late 2013, plaintiff resided in a
condominium unit owned by his sister and paid her monthly rent. The condominium is located
within the Amberdeen Village complex and is governed by the Association. Plaintiff’s sister


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was the sole owner of the condominium and was an owner-in-common of the complex’s
common areas. Plaintiff did not hold any ownership interest in his sister’s condominium.

       The Association contracted with Stamper to administer the complex. In turn, Stamper
arranged for Miller Landscaping, Inc. (Miller) to perform snow-removal services at the complex,
although the actual contract was between the Association and Miller.

        Per Miller’s contract, Miller was to inspect the property regularly and clear snow anytime
it accumulated more than 1.5 inches. Miller was to inform the Association when ice-removal or
prevention services were necessary, but could not perform any services without Association
approval. Miller agreed to hold harmless Stamper and the Association for “personal injuries as a
result of snow and ice removal operations.”

        Stamper did not inspect the property except for an “annual spring walk through” to
determine whether there was any exterior damage to the condominium units or grounds.
Stamper did not have a manager or office at the condominium complex. Accordingly, residents
or the Association would call Stamper at its office in Clinton Township to have work completed.
Stamper occasionally called Miller to perform snow services when contacted by a resident or the
Association; someone from the Association would also call on occasion. Both Stamper and the
Association asserted that Stamper had no duty to inspect the property for snow or ice
accumulation under Stamper’s contract with the Association.

         At the time of the slip and fall, plaintiff was employed as a limousine driver. After
driving the previous evening, plaintiff returned from his shift at approximately 6:30 a.m. on
December 20th. Plaintiff testified that he did not observe any icy conditions on his drive home.
Plaintiff parked his car in the parking lot outside his sister’s condominium and exited his vehicle.
Plaintiff testified that he scanned the parking lot for snow and ice before exiting his vehicle, but
did not see any. According to plaintiff, he then exited his vehicle, took approximately five steps
from the vehicle, slipped, and fell on the ice. Plaintiff testified that he could not stand up, but
instead crawled back to his vehicle and used it to help him stand up. Plaintiff realized that the
parking lot “was all ice” when he could not stand up. Plaintiff testified that he then called his
sister, who opened the garage door to let him into the condominium.

        Plaintiff’s sister testified that, when she opened the garage door, she could see that the
pavement in the parking lot was “shiny” although it was “kind of dark” and “hard to see.” When
asked if the parking lot was “wet” or covered in ice, plaintiff’s sister responded, “It was cold
enough I wouldn’t think it would just be wet.” Later that day, plaintiff’s sister took photographs
of the area of the parking lot where plaintiff fell. The pictures show a parking lot covered in a
light dusting of snow.

        Plaintiff and his sister testified that there was no salt in the parking lot at the time of his
fall. Plaintiff stated that the parking lot was dimly light, but that all the lights were functioning at
the time of his fall. Plaintiff’s sister confirmed that the lighting was dim, but did not know
whether the lighting was working properly. Neither plaintiff nor his sister could state whether
there was any defect in the property that caused the ice to accumulate on the parking lot. Neither
plaintiff nor his sister complained of the dim parking lighting to any management personnel.
Similarly, before plaintiff’s fall, neither plaintiff nor his sister complained of any ice in the

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parking lot. Neither Stamper’s nor the Association’s records show that any resident complained
of icy conditions in the parking lot on December 19th or 20th.

        Plaintiff testified that, as a result of the fall, he suffered a fracture to his right ankle,
which required him to wear a walking boot and stay off of his right foot for three weeks.
Plaintiff missed three weeks of work and, when he returned to work, he was placed on light duty
for three weeks, after which he returned to full duty.

        Plaintiff sued defendants alleging that he was an invitee of the condominium complex
that defendants possessed or maintained and that defendants breached their common-law duty to
maintain the premises in a reasonably safe fashion. Plaintiff further argued that defendants
violated their statutory obligations to keep ice off of walkways under MCL 67.10 and to keep the
parking lot fit for its intended use and in reasonable repair under MCL 554.139.1

       Defendants moved for summary disposition under MCR 2.116(C)(8) and (10).
Defendants argued that, because plaintiff and his sister were tenants-in-common of the common
areas of the complex, defendants did not own or possess the parking lot in which plaintiff fell
and could not be liable for his injuries under this Court’s decision in Francescutti v Fox Chase
Condominium Association, 312 Mich App 640; 886 NW2d 891 (2015). Moreover, defendants
argued that, because plaintiff could not prove that defendants had or should have had notice of
the icy condition, plaintiff could not show that the defendants breached their duty to exercise
reasonable diligence to remove that condition. Defendants also argued that plaintiff could not
bring a claim of a violation of MCL 67.10 because that statute only pertains to sidewalks, not
parking lots.

        The trial court denied defendants’ motion for summary disposition. Although the trial
court indicated that it was denying defendants’ motion, the trial court first concluded that
plaintiff’s claim under MCL 554.139 failed because that statute applied only to a “lessor” and the
common areas here were not leased to the co-owners in the condominium complex. Neither
party challenges this conclusion on appeal.

         Regarding plaintiff’s common law premises-liability claims, the trial court concluded
that Francescutti did not apply. The trial court assumed that plaintiff was an invitee and noted
that defendants had a duty, as possessors of the common areas of the complex, to exercise
reasonable care to know the conditions present on the premises and to make the premises
reasonably safe for all invitees, including plaintiff. The trial court concluded that, by way of
arguing that they could not have known of the icy condition on the parking lot, defendants
conceded that the icy condition was not an open-and-obvious danger. Finally, regarding
defendants’ argument that they could not be liable for plaintiff’s injuries because they had no
notice of the ice, the trial court concluded that a question of fact remained on whether a more



1
  Plaintiff dismissed his claims against Miller, although Miller remains a part of the case because
of the other defendants’ third-party complaint against Miller. None of the remaining issues
involving Miller are pertinent to this appeal.


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rigorous inspection regiment would have revealed the icy condition and whether defendants were
negligent in failing to employ such a regiment. Accordingly, the trial court declined to dismiss
the case.

        Defendants moved for reconsideration, arguing that, under Francescutti, a condominium
association owes a co-owner of a condominium unit no duty because the co-owner is neither an
invitee nor a licensee due to the co-owner’s ownership interest in the common areas of the
condominium complex. Defendants continued that, because plaintiff “was a tenant of his sister’s
condominium . . . with the same possessory rights as the owner,” and because plaintiff’s sister
was a co-owner of the common areas of the complex, plaintiff was neither an invitee nor a
licensee to the complex and defendants owed plaintiff no duty of care.

         The trial court concluded that plaintiff was renting from his sister and was not an owner
of the condominium unit. Accordingly, the trial court found that plaintiff was not a co-owner of
the common areas of the complex and that Francescutti did not apply. Therefore, the trial court
denied the motion for reconsideration. This appeal followed.

                                         II. ANALYSIS

       This Court reviews de novo a trial court’s decision on a motion for summary disposition
under MCR 2.116(C)(10). Hill v Sears, Roebuck and Co, 492 Mich 651, 659; 822 NW2d 190
(2012). “Summary disposition is proper if the evidence, affidavits, pleadings, and admissions
viewed in a light most favorable to the other party demonstrate that there is no genuine issue of
any material fact and the moving party is entitled to judgment as a matter of law.” Auto-Owners
Ins Co v Seils, 310 Mich App 132, 145; 871 NW2d 530 (2015).

        On appeal, defendants first argue that they were entitled to summary disposition on
plaintiff’s premises-liability claim. A plaintiff alleging a premises-liability claim must establish
that (1) the defendant owed him a duty, (2) the defendant breached that duty, (3) the breach
proximately caused the plaintiff’s injuries, and (4) the plaintiff suffered damages. Sanders v
Perfecting Church, 303 Mich App 1, 4; 840 NW2d 401 (2013).

        Defendants Possessed and Controlled the Common Areas. Both possession of and
control over the premises must be present in order to give rise to a duty of care regarding the
premises. Sholberg v Truman, 496 Mich 1, 7-8; 852 NW2d 89 (2014). “Possession” is defined
as “the right under which one may exercise control over something to the exclusion of all
others.” Derbabian v S & C Snowplowing, Inc, 249 Mich App 695, 703; 644 NW2d 779 (2002)
(internal citation, quotation marks, and emphasis omitted). “[P]ossession for purposes of
premises liability does not turn on a theoretical or impending right of possession, but instead
depends on the actual exercise of dominion and control over the property.” Kubczak v Chemical
Bank & Trust Co, 456 Mich 653, 661; 575 NW2d 745 (1998). In turn, “control” means the
power to “manage, direct, or oversee” the property. Derbabian, 249 Mich App at 703-704
(internal citation and quotation marks omitted).

       Here, defendants each exercised authority to manage the common areas of the complex,
including the parking lot. Indeed, the record evidence shows that, although the Association and
Miller contracted for snow-removal services, both Stamper and the Association would contact

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Miller to perform such services. Under Miller’s agreement with the Association, Miller could
not perform ice-removal or salting services without prior approval from one of the defendants.
Moreover, the evidence appears to show that residents of the condominium complex exercised
no independent authority over the common areas for the purpose of ice and snow removal.
Rather than contacting Miller directly, residents would contact defendants when removal
services were necessary. There is no evidence that any condominium owner—let alone a lessee
like plaintiff—performed any snow services or had any authority to perform such services on the
common areas of the complex. Accordingly, the record makes clear that defendants had
sufficient possession and control over the common areas of the condominium complex to have
some duty of care regarding those premises.

        Francescutti Does Not Apply. Upon assuming possession and control of the premises, the
premises possessor inherits certain duties of care regarding the premises. Those duties, however,
do not extend equally to every person who may come upon the land. This principle is
particularly applicable in the unique case of a condominium complex.

         In Francescutti, 312 Mich App at 641, the plaintiff, a co-owner of a condominium unit in
the defendant condominium association’s development, slipped on an icy sidewalk located in
one of the common areas of the development. The plaintiff sued the condominium association,
arguing that plaintiff was an invitee to the development and that the association breached its duty
of reasonable care to plaintiff in the inspection and repair of latent dangers. Id. at 641-642. The
association argued that the plaintiff was a mere licensee, to which the association owed a lesser
duty. Id. at 642. This Court disagreed with both parties and concluded that the plaintiff, as a co-
owner of common areas of the condominium development, was neither an invitee nor a licensee.
Id. at 642-643. This Court noted that a “licensee is a person who is privileged to enter the land
of another by virtue of the possessor’s consent, while an invitee is a person who enters upon the
land of another upon an invitation.” Id. at 643 (internal quotation notation, footnote citation, and
emphasis omitted). This Court reasoned that the plaintiff could not be an invitee or a licensee
because he was present on land he owned, rather than on “the land of another.” Id. (internal
quotation marks omitted). Accordingly, this Court concluded that, for the purposes of premises
liability, the defendant association owed the plaintiff no duty of care. Id.

         Here, defendants argue that, under Francescutti, they did not owe plaintiff a duty
because plaintiff did not enter “on the land of another.” Defendants acknowledge that plaintiff
was not a legal owner of the condominium unit, but argue that plaintiff, as a tenant living in his
sister’s unit, had the same possessory rights as his sister. Defendants, however, have not
supported their argument with sufficient record evidence to warrant summary disposition. All
that is in the record is that plaintiff leased from his sister a room in her individual condominium
unit. There is nothing in the record to suggest that plaintiff enjoyed each and every right to
possess and control that his sister had over her unit, let alone each and every right that she had to
possess and control the complex’s common areas. Assertions are not evidence, and defendants
offer nothing more than assertions at this point with regard to any possessory or control interests
held by plaintiff.

        By analogy, when an apartment landlord leases the possessory rights to an individual
apartment, the landlord generally does not lease its full possessory interest in the common areas,
though the lessees are generally entitled to use those areas. The interest imposes upon the

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landlord “a duty of care to keep the premises within their control reasonably safe from physical
hazard.” Bailey v Schaaf, 494 Mich 595, 605; 835 NW2d 413 (2013). There is no suggestion
that plaintiff’s sister included in the parties’ lease agreement—assuming that there is even a
formal lease agreement—any interest in the common areas of the complex or that she had any
right under the Association’s bylaws to do so.

        Accordingly, because it is clear that plaintiff is not a co-owner of the common areas of
the complex, and defendants have not shown that plaintiff enjoyed the same full set of
possessory and control rights as a co-owner, we find that the trial court correctly determined that
Francescutti is inapplicable to this case.

        Remand Is Necessary to Determine the Impact of Lowrey on Plaintiff’s Premises-
Liability Claim. Next, defendants do not challenge the trial court’s determination that the ice
was not an open-and-obvious danger. Rather, defendants argue that they cannot be liable for
plaintiff’s injuries because they had no actual or constructive notice of the icy conditions present
in the parking lot. To show that defendants, as possessors of the property, breached a duty owed
to plaintiff, plaintiff bears the burden of showing that defendants had actual or constructive
notice of the icy conditions. See Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 10 and n 1; 890
NW2d 344 (2016). To show notice, plaintiff must demonstrate that defendants knew about the
icy conditions or should have known of the icy conditions because of their character or the
duration of their presence. Id. at 10.

        As explained above, the trial court rejected defendants’ argument because there was a
question of fact on whether defendants undertook the type of inspection that a reasonably
prudent premises possessor would exercise under similar circumstances to protect its invitees. In
doing so, the trial court relied on this Court’s decision in Grandberry-Lovette v Garascia, 303
Mich App 566; 844 NW2d 178 (2014). After the trial court issued its opinion, however, our
Supreme Court issued its decision in Lowrey and rejected the requirement that a defendant
present evidence of a reasonable-inspection regime to show a lack of constructive notice.
Lowrey, 500 Mich at 9-10 and n 1. In doing so, Lowrey called into question the viability of
Grandberry-Lovette moving forward. See id. at 10 n 1. Neither party addressed in its brief on
appeal the impact of Lowrey on the trial court’s decision or plaintiff’s case-in-chief, other than a
single citation by defendants for the proposition that a plaintiff must prove actual or constructive
notice. Because we believe that this issue should be fully briefed with reference to the record,
we remand the matter to the trial court with instructions that defendants be permitted to renew
their motion for summary disposition on the notice element. MCR 7.216(A)(5).

        Plaintiff’s Statutory Claim Is Misplaced. Finally, defendants argue that the trial court
erred by not granting their motion for summary disposition regarding plaintiff’s claim under
MCL 67.10. On appeal, defendants argue that they cannot be liable under MCL 67.10 because
they did not have notice of the icy conditions. We need not address this argument because we
agree with defendants’ argument before the trial court that MCL 67.10 is not applicable to this
case. MCL 67.10 is a remedy by which a village council may recover the expenses it incurred in
maintaining a public sidewalk passing through or abutting a private premises. This case involves
neither a public sidewalk nor a village council, and MCL 67.10 is simply inapplicable.

                                       III. CONCLUSION

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         We affirm the trial court’s conclusion that Francescutti is inapplicable to plaintiff’s
premises-liability claim. Because, after the trial court’s opinion was released, Lowrey called into
question the trial court’s reliance on Grandberry-Lovette, we remand plaintiff’s premises-
liability claim to the trial court so that the parties and the trial court may fully explore Lowrey’s
impact, if any, on plaintiff’s claim. We conclude that defendants were entitled to summary
disposition on plaintiff’s claim under MCL 67.10, and remand for entry of summary disposition
to defendants on that claim. We do not retain jurisdiction.




                                                              /s/ Elizabeth L. Gleicher
                                                              /s/ Stephen L. Borrello
                                                              /s/ Brock A. Swartzle




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