Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  March 29, 2019                                                                   Bridget M. McCormack,
                                                                                                 Chief Justice

  155120                                                                                David F. Viviano,
                                                                                        Chief Justice Pro Tem

                                                                                      Stephen J. Markman
  CELESTINE STACKER, Personal Representative                                               Brian K. Zahra
                                                                                     Richard H. Bernstein
  of the Estate of MAE HENDRIX,                                                      Elizabeth T. Clement
                 Plaintiff-Appellee,                                                 Megan K. Cavanagh,
                                                                                                      Justices
  v                                                        SC: 155120
                                                           COA: 328191
                                                           Oakland CC: 2014-142087-NO
  LAUTREC, LTD,
             Defendant-Appellant.
  _________________________________________/

         On November 19, 2018, the Court heard oral argument on the application for leave
  to appeal the October 27, 2016 judgment of the Court of Appeals. On order of the Court,
  the application is again considered, and it is DENIED, because we are not persuaded that
  the question presented should be reviewed by this Court.

         VIVIANO, J. (concurring).

         I concur in the Court’s order denying leave to appeal. I agree that, under Allison v
  AEW Capital Mgt, LLP, 481 Mich 419 (2008), plaintiff has presented sufficient evidence
  to survive summary disposition. I write separately because I believe that Allison’s
  holding that MCL 554.139(1)(a) creates an ongoing obligation on the part of the lessor
  may be premised on an erroneous assumption and should be reexamined. But, since this
  argument has not been raised by any party, I write only to highlight the issue for future
  consideration.

          Plaintiff Mae Hendrix 1 slipped and fell on an ice patch that formed when water
  from a garage downspout pooled and froze on the driveway leading to her garage
  entrance at the apartment complex where she resided. The parties agree that all of the
  apartment driveways together constitute a common area, as tenants routinely walked
  across the adjoining driveways to access their own apartments. Plaintiff sued defendant,
  the owner of the apartment complex, claiming negligence, common-law premises
  liability, and a violation of MCL 554.139(1)(a).

         MCL 554.139 provides, in relevant part, as follows:

                (1) In every lease or license of residential premises, the lessor or

  1
   Mae Hendrix passed away on May 11, 2017, and the trial court entered an order on
  December 15, 2017, allowing the personal representative of her estate, Celestine Stacker,
  to substitute as plaintiff. For ease of reference, I will continue to refer to Ms. Hendrix as
  “plaintiff.”
                                                                                             2

          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 applicable health or
          safety laws has been caused by the tenant[’]s wilful or irresponsible
          conduct or lack of conduct.

       This statute was enacted in 1968 to codify the common-law implied warranty of
habitability. 2 In Allison, this Court held that “[b]ecause a parking lot within a leased
residential property is a common area under MCL 554.139(1)(a), the lessor effectively
has a contractual duty to keep the parking lot ‘fit for the use intended by the parties.’ ” 3
For the reasons below, I question whether this interpretation comports with the plain
language of Subsection (1)(a), which does not appear to create an ongoing obligation on
the part of lessors.

        Our primary goal in interpreting a statute “is to ascertain the legislative intent that
may be reasonably inferred from the words expressed in the statute.” 4 When the statutory
language is clear, “we presume that the Legislature intended the meaning expressed.” 5
The plain language of MCL 554.139 creates two covenants in all residential leases: (1)
“[t]hat the premises and all common areas are fit for the use intended by the parties,”
MCL 554.139(1)(a); and (2) that the landlord will “keep the premises in reasonable repair
during the term of the lease” and “comply with the applicable health and safety laws,”
MCL 554.139(1)(b). The first of these covenants uses the present tense of the verb “to
be”—“are”—which strongly suggests that the covenant relates to the condition of the
premises at the time the covenant is made, i.e., at the time the lease is executed. In other
words, it does not appear that this covenant creates an ongoing obligation for the duration
of the lease term. By contrast, the second covenant creates such an ongoing obligation by

2
  1968 PA 295. See Allison, 481 Mich at 441 (CORRIGAN, J., concurring) (“A reasonable
inference arises from the language of MCL 554.139(1)(a) (‘fit for the use intended by the
parties’) that it codifies the implied warranty of habitability.”).
3
    Id. at 429 (emphasis added).
4
    Id. at 427(quotation marks and citation omitted).
5
    Id.
                                                                                          3

requiring that the landlord “keep the premises in reasonable repair during the term of the
lease or license.” 6 The word “keep” is relevantly defined as “to maintain, or cause to stay
or continue, in a specified condition, position, etc.; as, keep your engine running.” 7 This
duty obviously extends beyond the inception of the lease and continues during the lease
term. 8

       I concur in the majority’s denial order because, under Allison, which interpreted
the covenant created by MCL 554.139(1)(a) as an ongoing obligation, I agree that there
remains a genuine issue of material fact as to whether defendant violated that covenant by
failing to keep the driveway “fit for the use intended by the parties.” As the Court of
Appeals explained, photographs taken from the day of plaintiff’s fall show that a
“substantial portion” of the driveway was covered in ice formed when water from a
downspout pooled in broken and depressed concrete. But, for the reasons above, I
believe this Court should reconsider in an appropriate future case whether Allison’s
interpretation of MCL 554.139(1)(a) as creating an ongoing obligation is consistent with
the plain language of the statute.

        MARKMAN, J. (dissenting).

      I respectfully dissent from this Court’s order denying leave to appeal. Instead, I
agree with Judge O’Brien’s partial dissent that this case is materially indistinguishable
from the circumstances set forth in Allison v AEW Capital Mgt, LLP, 481 Mich 419
(2008), and thus would reverse on the basis of that decision. 9

6
    MCL 554.139(1)(b) (emphasis added).
7
 Webster’s New Twentieth Century Dictionary of the English Language, Unabridged (2d
ed).
8
  See also Schier, Draftsman: Formulation of Policy, 2 Prospectus 227, 233 (1968)
(emphasis added) (“Under [MCL 554.139,] the occupant of rented housing, whether a
lessee or a licensee, has the benefit of two covenants which will be found in every rental
agreement. The first covenant is in effect a warranty that the premises are fit for the uses
intended by the parties at the time of taking possession. The second is in effect a promise
of future performance and states that the lessor or licensor covenants to keep the premises
in reasonable repair during the term of occupancy and to comply with all applicable
health and safety laws.”).
9
  As Justice VIVIANO recognizes, neither party asks this Court to reexamine our decision
in Allison. Moreover, because the driveway here was “fit for the use intended by the
parties” under MCL 554.139(1)(a) when the injury occurred, it is unnecessary to assess
whether Allison correctly interpreted that provision as imposing an ongoing obligation
upon the lessor. However, even if Justice VIVIANO’s suggested interpretation of the
                                                                                         4


       Plaintiff lived in an apartment complex that has side-by-side driveways with
connected garages. The driveways connect the public road to each tenant’s garage, and
the garages open to their driveways and have rear-entry doors to a walkway that connects
to the residential units. At the end of the row of garages, the driveways merge into an
outdoor sidewalk that also leads to the residential units. Plaintiff and her husband parked
their vehicle in front of their garage, which was the second garage to the right of the end
of the row. Plaintiff collected groceries from the trunk of the vehicle and began to walk
across the adjoining driveway toward the outdoor sidewalk, but as she walked, she
slipped and fell on ice. The ice had allegedly unnaturally accumulated between the
driveway closest to the sidewalk and plaintiff’s driveway because of pooling from a
downspout into an area of depressed and broken pavement. The rest of the driveway
contained only small patches of snow. Tenants routinely walked across neighboring
driveways to reach their residential units, rather than walking through the garage and
exiting through the rear-entry doors.

       Plaintiff brought a claim against defendant, the apartment owner, seeking damages
on the basis that defendant had violated the duty to keep the premises fit under MCL
554.139(1)(a). The trial court granted defendant’s motion for summary disposition on the
claim, but the Court of Appeals in a split decision reversed, concluding that genuine
issues of material fact precluded summary disposition. Hendrix v Lautrec, Ltd,
unpublished per curiam opinion of the Court of Appeals, issued October 27, 2016
(Docket No. 328191), p 4. This Court then ordered oral argument on the application.
Stacker v Lautrec, 501 Mich 1085 (2018).

      The issue here concerns whether there is a genuine issue of material fact that
defendant breached MCL 554.139(1)(a), which 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. (Emphasis added.)


In Allison, this Court addressed a lessor’s duty under MCL 554.139(1)(a) with regard to 1
to 2 inches of snow and ice covering the parking lot of an apartment complex. We
observed that “a parking lot is constructed for the primary purpose of storing vehicles on

statute were correct, I would still reverse, as plaintiff has not demonstrated that the
driveway was unfit when the lease was executed.
                                                                                          5

the lot” and therefore a lessor has a duty under MCL 554.139(1)(a) to keep the lot fit for
the parking of vehicles. Allison, 481 Mich at 429. This Court also “recognize[d] that
tenants must walk across a parking lot in order to access their vehicles,” but held that

       plaintiff did not show that the condition of the parking lot in this case
       precluded access to his vehicle. The Court of Appeals erred in concluding
       that, under the facts presented, the parking lot in this case was unfit simply
       because it was covered in snow and ice. [Id. at 430-431.]


This Court further explained that

       [t]here are conceivable circumstances in which a lessor may have a duty to
       remove snow and ice under MCL 554.139(1)(a), such as when the
       accumulation is so substantial that tenants cannot park or access their
       vehicles in a parking lot. As we have already observed, such circumstances
       were not present in this case. [Id. at 438.]


       The Court of Appeals majority distinguished the instant case from Allison on the
basis that

       a driveway is not a parking lot. Unlike a parking lot, the connected
       driveways in this case are not used primarily for parking in practice; they
       are also intended for pedestrian access to the garages and pedestrian access
       to the residential units. In these senses, the driveways are more akin to
       sidewalks. [Hendrix, unpub op at 4.]


However, as correctly noted by Judge O’Brien in dissent, the parking lot in Allison was
also “intended for pedestrian access to” the parking lot and the residential units. Id. at 1
(O’Brien, J., concurring in part and dissenting in part). Indeed, Allison explicitly
recognized that “tenants must walk across a parking lot in order to access their vehicles,”
Allison, 481 Mich at 430, and thus concluded that a parking lot must also provide
“reasonable access to [the tenants’] parked vehicles,” id. at 429. In other words, Allison
concluded that a parking lot must be “fit” for both parking vehicles and walking between
the vehicles and the residential units. We then explained that the parking lot in that case
was “fit” for walking between the vehicles and the residential units if it provided tenants
“reasonable access” to each of those areas. Id. Similarly, the driveways at issue here are
intended for the parking of vehicles, and as part of that intended use they must also be
“fit” for walking between the vehicles and the residential units. Accordingly, as in
Allison, the lessor had a similar duty to ensure “reasonable access” to both the parked
vehicles and the residential units.
                                                                                            6


       Assuming arguendo that the Court of Appeals majority correctly concluded that,
unlike the parking lot in Allison, the driveways at issue “are not used primarily for
parking in practice,” Hendrix, unpub op at 4, this purported distinction does not alter the
relevant legal inquiry. The statute does not alter a lessor’s duty of “fitness” on the basis
of whether an intended use of an area is primary or not. Rather, as in Allison, the
driveways here were intended for both parking vehicles and walking between those
vehicles and the residential units and as a result had to provide “reasonable access” to
those areas. Thus, Allison precisely governs the determination of whether defendant
violated MCL 554.139(1)(a) in this case, without regard to whether the driveways were
“used primarily for parking in practice.”

       The ice on the driveway did not deprive plaintiff of “reasonable access” to her
vehicle or residential unit. As Allison again explained:

               While a lessor may have some duty under MCL 554.139(1)(a) with
       regard to the accumulation of snow and ice in a parking lot, it would be
       triggered only under much more exigent circumstances than those obtaining
       in in this case. The statute does not require a lessor to maintain a lot in an
       ideal condition or in the most accessible condition possible, but merely
       requires the lessor to maintain it in a condition that renders it fit . . . . Mere
       inconvenience of access . . . will not defeat the characterization of a lot as
       being fit for its intended purposes. [Id. at 430.]


The ice on the driveway did not “preclude” plaintiff from accessing either her vehicle or
her residential unit. Id. The ice did not extend across the width of the driveway and
therefore could have been avoided. Thus, the accumulation here was, in fact, less
“exigent” than in Allison, in which the entire lot was covered with ice and snow. Plaintiff
notes, however, that, unlike the conditions in Allison, the ice on the driveway here was
arguably created unnaturally by the formation of ice that resulted from pooling from a
downspout into an area of depressed and broken pavement on the driveway. However,
the lessor’s duty under MCL 554.139(1)(a) relates to the condition of the area and does
not change depending on whether an icy condition has been created by natural or
unnatural causes. So long as the area itself is “fit for the use intended by the parties,”
                                                                                                                7

there is no liability under MCL 554.139(1)(a). Because the driveways here, in my
judgment, were entirely “fit” for the use of parking a vehicle and provided “reasonable
access” to vehicles and residential units, plaintiff is not entitled to relief. Accordingly, I
would reverse. 10

       ZAHRA, J., joins the statement of MARKMAN, J.

      CAVANAGH, J., did not participate in the disposition of this case because the Court
considered it before she assumed office.




10
   Plaintiff here also sought damages on the basis of common-law premises liability. The
trial court granted defendant’s motion for summary disposition on that claim, and the
Court of Appeals affirmed. Plaintiff did not appeal the Court of Appeals’ resolution of
this issue and thus it is not before this Court.



                          I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          March 29, 2019
       a0326
                                                                              Clerk
