                           STATE OF MICHIGAN

                           COURT OF APPEALS



DAVID TREMPER,                                                     UNPUBLISHED
                                                                   June 16, 2016
               Plaintiff-Appellee,

v                                                                  No. 325176
                                                                   Wayne Circuit Court
WESTLAND COLONIAL VILLAGE                                          LC No. 13-007311-NO
APARTMENTS, WESTLAND COLONIAL
DELAWARE, LLC, and WESTLAND
COLONIAL VILLAGE, LLC,

               Defendants-Appellants.


Before: GADOLA, P.J., and SERVITTO and SHAPIRO, JJ.

SHAPIRO, J. (dissenting)

        I respectfully dissent. Defendant landlord does not dispute that there was a height
differential between two slabs of its sidewalk in the common area of its apartment complex, and
at least for purposes of this motion, defendant does not dispute that plaintiff tripped on the
elevated slab suffering injury. According to plaintiff’s testimony, the height differential was
somewhere between 1 ½ inches to 3 inches in height. Defendant offered no evidence to
contradict this testimony.

         The majority correctly observes that a landlord need only maintain a sidewalk that is fit
for its intended purpose and that such a duty can be met even if the sidewalk in question is not
ideal or perfect. I fully agree with this view. More to the point, the duty in this case is not
grounded in common law, but is a creature of statute. The duty defined by the text of the statute
is that the common areas of the property must be “fit for the use intended by the parties.” MCL
554.139(1)(a). While the duty of maintenance of areas shared in common by multiple tenants is
less demanding than the duty to keep a particular tenant’s premises in reasonable repair,
“[k]eeping common areas fit for their intended use may well require a lessor to perform
maintenance and repairs to those areas . . . .” Allison v AEW Capital Mgt, LLP, 481 Mich 419,
433; 751 NW2d 8 (2008).

        The issue before us then is not the nature of the duty; the statute makes that clear. The
issue before us is who makes the determination as to whether that duty has been satisfied or not.
The answer again is provided by the text of the statute, which we must apply as written. The
legislature chose to leave the determination of whether a common area is fit for its intended use



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to the trier of fact. It provided no definition, no guidelines, and no presumptions for either
judges or jurors to follow. When the legislature wishes to define such matters it can readily do
so. For example, MCL 691.1402a, which governs actions against local governments for defects
in public sidewalks, sets forth a specific minimum level of vertical discontinuity that must be
shown for the matter to be submitted to the jury. It provides:

               (3) In a civil action, a municipal corporation that has a duty to maintain a
        sidewalk under subsection (1) is presumed to have maintained the sidewalk in
        reasonable repair. This presumption may only be rebutted by evidence of facts
        showing that a proximate cause of the injury was 1 or both of the following:

                (a) A vertical discontinuity defect of 2 inches or more in the sidewalk.

                                                * * *

                (4) Whether [this] presumption . . . has been rebutted is a question of law
        for the court. [MCL 691.1402a.]

Subsection (3)(a) of this statute leaves no doubt that the legislature knows how to direct the
judiciary to require a particular height differential before allowing the issue of reasonableness to
go to the jury. Subsection (4) leaves no doubt that the legislature knows how to tell us when an
issue is “a question of law for the court,” as opposed to a question of fact for the jury.

      We are not, however, tasked with applying MCL 691.1402a in this case. Instead, MCL
554.139(1)(a) applies, and provides in pertinent part:

              (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.

In this statute, the legislature did not direct the judiciary to require a particular height differential
before allowing the issue of fitness to go to the jury, nor did it provide that such an inquiry was a
question of law for the courts. Further, nothing in the statutory language suggests that whether
the physical structure of a common area is fit for its intended use is a question of law as opposed
to a question of fact.1

       Whether this panel of three judges thinks this sidewalk was fit for its intended purpose is
of no moment. The issue is whether a jury thinks it does. That is what the legislature has
provided.

                                                                /s/ Douglas B. Shapiro

1
  In Allison, 481 Mich at 430, the Supreme Court held that a minor and transient natural
accumulation of snow did not render a parking lot unfit for parking and accessing vehicles. The
case did not involve allegations of structural defects in the parking lot itself.



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