                            STATE OF MICHIGAN

                             COURT OF APPEALS



JASMINE FARES ABAZEED, IMAD SHARAA,                                UNPUBLISHED
NOUR ALKADI, and TAREK ALSHARA,                                    March 22, 2018

                 Plaintiffs-Appellees/Cross
                 Appellants,


v                                                                  No. 337355
                                                                   Washtenaw Circuit Court
AHMAD AWAD and SHIRIN KAIAL,                                       LC No. 16-000207-NO

                 Defendants-Appellants/Cross-
                 Appellees.


Before: STEPHENS, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ.

PER CURIAM.

       In this premises liability case, defendants appeal by leave granted1 and plaintiffs cross-
appeal the trial court’s order denying in part and granting in part defendants’ motion for
summary disposition. For the reasons set forth below, we affirm.

                                              I. FACTS

        On January 21, 2016, defendant Kaial hosted a party at the home she owned with her
husband, defendant Awad. The party started around 11:00 a.m., and approximately 25 to 30
women attended, among whom were plaintiffs Abazeed and Alkadi. Plaintiff Alkadi arrived at
the party around 11:00 a.m. with her children and her mother-in-law. After exiting her car, she
walked across the grass to defendants’ front door. After some time, she went outside to move
her car for a neighbor and walked down the concrete walkway leading from the front door to the
sidewalk. While doing so, she slipped on ice and fell, sustaining injury.

       Plaintiff Abazeed arrived at defendants’ home around noon with her mother and newborn
baby. She also walked on the grass to enter defendants’ home, but a few minutes later, she went
back out to retrieve something from her car. To do so, she walked down defendants’ driveway.


1
    Abazeed v Awad, unpublished order of the Court of Appeals, entered April 18, 2017.


                                                -1-
As she did so, she slipped on ice and fell, sustaining injury. Plaintiffs filed a complaint against
defendants alleging premises liability, ordinary negligence, and violation of building codes.
Defendants brought a motion for summary disposition. As to the premises liability count,
defendants argued that plaintiffs were licensees, and that there was no evidence that any duty to
licensees was violated. As to the other counts, defendants argued that such claims were not
independent of a premises liability claim and so should be dismissed. The trial court denied
defendants’ motion as to the premises liability claim, but granted it as to the negligence and
building code claims.

                                  II. DEFENDANTS’ APPEAL

        Defendants argue on appeal that there is no question of fact whether they violated their
duty to plaintiffs who were licensees. A landowner owes a licensee

       a duty only to warn the licensee of any hidden dangers the owner knows or has
       reason to know of, if the licensee does not know or have reason to know of the
       dangers involved. The landowner owes no duty of inspection or affirmative care
       to make the premises safe for the licensee’s visit. [Bailey v Schaaf, 494 Mich
       595, 641; 835 NW2d 413 (2013) (citation omitted).]

        Defendants assert that the trial court erred because there is no evidence to contradict their
assertion that: (1) they had no knowledge of the conditions, and (2) that the conditions were
visible to plaintiffs. 2 The first of these arguments is easily addressed. A witness, Nada
Ammoun, testified that before plaintiffs fell, she informed defendant Kaial of the conditions and
the need to salt the premises. That testimony establishes a question of fact whether defendants
knew of the dangerous condition. The second argument also fails because there is substantial
evidence that the icy condition was not visible as the weather conditions were not such as to
render the black ice open and obvious. Plaintiff Alkadi testified that when she arrived at
defendants’ home around 11:00 a.m., the weather was cold, but there were no snowflakes
coming down and there was no snow on the grass, or other indicia of icy conditions. She
traversed the walkway on more than one occasion and saw no ice. Defendant Kaial testified that
she saw plaintiff Alkadi slip and fall on the walkway, and rushed out to help her. While outside,
she looked around the area where plaintiff Alkadi had fallen, and observed that there was no ice,
snow, or any wetness. She described the walkway as being “perfectly dry.” Similarly, plaintiff


2
  This Court reviews de novo a trial court’s decision to grant summary disposition under MCR
2.116(C)(10). Johnson v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012). A motion under
MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Joseph v Auto Club Ins Ass’n,
491 Mich 200, 206; 815 NW2d 412 (2012). Summary disposition is proper if there is “no
genuine issue regarding any material fact and the moving party is entitled to judgment as a
matter of law.” Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). The
court considering the motion “must consider the affidavits, pleadings, depositions, admissions,
and other evidence submitted by the parties in the light most favorable to the party opposing the
motion.” Joseph, 491 Mich at 206. All reasonable inferences are to be drawn in favor of the
nonmovant. Dextrom v Wexford Co, 287 Mich App 406, 415; 789 NW2d 211 (2010).


                                                -2-
Abazeed testified that she saw no ice and only discovered it when she felt the ground after
falling. Given this evidence, we agree with the trial court that there is evidence to support
plaintiffs’ claim that the conditions were not easily observable on casual inspection.

       Accordingly, we agree with the trial court that there are questions of material fact as to
the premises liability claim and that summary disposition as to that claim was properly denied.

                              III. PLAINTIFFS’ CROSS APPEAL

       In their cross-appeal, plaintiffs argue that the trial court erred in granting defendants’
motion for summary disposition with respect to their ordinary negligence and building code
claims. We disagree.

        Plaintiffs submitted evidence, through the affidavit of witness Steven Ziemba, a safety
expert, that defendants violated the provisions of the International Property Maintenance Code
by placing a splash block at the base of a downspout such that the water from the roof of the
house was released onto the walkway where it pooled and froze. After inspecting defendants’
premises on June 28, 2016, Ziemba reached, inter alia, the following conclusions:

               7. Th[e] ice [was] an unnatural accumulation as it formed from the
       discharge of roof water. The defendant had placed a splash block at the base of
       the downspout which directed the water onto the walkway pavement. The slope
       measurements I took at my inspection confirm that water would pool at this spot.
       This transparent accumulation of unnatural ice that formed and caused them to
       slip would form upon contact with the colder concrete pavement and continue to
       spread and increase in size as water continues to drain down the walkway and
       down the driveway and down the driveway as it discharged from the downspout.

                                            * * *

               9. The Michigan Building Code stated that the provisions of the
       International Property Maintenance Code shall apply to all existing structures and
       premises. The applicable 2012 edition of the International Property Maintenance
       Code (IPMC) states the following:

               301.2 Responsibility- The owner of the premises shall maintain the
       structures and exterior premises in compliance with these requirements.

               302.3 Sidewalks and Driveways- All sidewalks, walkways, stairs,
       driveways, parking spaces and similar areas shall be kept in a proper state of
       repair, and maintained free from hazardous conditions.

              304.7 Roofs and drainage- Roof drains, gutters and downspouts shall be
       maintained in good repair and free from obstructions. Roof water shall not be
       discharged in a manner that creates a public nuisance.

       The defendants are in violation of the above sections of the IMPC.


                                               -3-
        Plaintiffs’ briefing is imprecise as to whether the building code violations are the basis of
their negligence claim or give rise to an independent cause of action. In either case, we conclude
that the trial court properly dismissed the claim. In Buhalis v Trinity Continuing Care Servs, 296
Mich App 685, 691-692; 822 NW2d 254 (2012), this Court held:

               If the plaintiff’s injury arose from an allegedly dangerous condition on the
       land, the action sounds in premises liability rather than ordinary negligence; this
       is true even when the plaintiff alleges that the premises possessor created the
       condition giving rise to the plaintiff’s injury.

In light of Buhalis, the existence of ordinary negligence, even if active, does not create a cause of
action outside the premises liability paradigm if the injury was due to a condition on the
premises.

        In support of their claim regarding code violations, plaintiffs rely on the provisions of the
International Property Maintenance Code, which has been adopted by the Michigan
Building/Construction Code, MCL 125.1501 et seq., MCL 125.1504, and the Michigan
Administrative Code, R 408.30401, Rule 401. 3 Plaintiffs argue that because this Code has been
adopted by state statute, it gives rise to a private cause of action. Plaintiffs relies on the four-part
test enumerated in Gardner v Wood, 429 Mich 290; 414 NW2d 706 (1987), to impose liability
on defendants. In Gardner, the issue was whether a civil cause of action for damages could be
maintained against a premises owner for a violation of the bottle club act, MCL 436.26c. Id. at
296. The Court utilized a test from the Second Restatement of Torts to hold that a cause of
action could be created to redress a statutory violation:

              The court may adopt as the standard conduct of a reasonable man the
       requirements of a legislative enactment or an administrative regulation whose
       purpose is found to be exclusively or in part

              (a) to protect a class of persons which includes the ones whose interest is
       invaded, and

               (b) to protect the particular interest which is invaded, and

               (c) to protect that interest against the kind of harm which has resulted, and

              (d) to protect that interest against the particular hazard from which the
       harm results. [Gardner, 429 Mich at 302-304 (quotation marks and citations
       omitted).]




3
 It was also adopted by the City of Ypsilanti (Ordinance Article V, section 18-91), but plaintiffs
do not refer us to any cases in which an ordinance was held to give rise to a private right of
action.


                                                  -4-
Arguably, the code requirements meet this four-factor test. Plaintiffs were among the class of
persons to be protected, i.e. persons traversing the walkway and driveways of properties and the
harm to be prevented is injury to such persons. However, Gardner went on to state:

                 Where a penal statute is silent concerning whether a violation of its
         provisions should give rise to a civil remedy, courts will infer a civil remedy for
         the violation to further the ultimate policy for the protection of individuals which
         they find underlying the statute, and which they believe the legislature must have
         had in mind. The civil remedy may be afforded through an existing tort action or
         a new cause of action analogous to an existing tort action. If there is no common-
         law tort sufficiently analogous to fit the situation, a new tort may be created for
         the purpose. [Gardner, 429 Mich at 301-302 (quotation marks and citations
         omitted).]

Plaintiffs do have a “common-law tort sufficiently analogous to fit the situation,” i.e. a premises
liability suit.4 Thus, the statute, which is silent as to remedy, should not be read to create one
under these circumstances.

       Further, in Lash v Traverse City, 479 Mich 180, 191-193; 735 NW2d 628 (2007), the
Michigan Supreme Court indicated that a private cause of action could not be maintained “in the
absence of evidence of legislative intent” to create one. Plaintiffs’ argument that this Court
should ignore the ruling in Lash because it did not “impugn the validity of the Gardner test,” is
without merit. The Lash Court considered the test articulated in Gardner, but held that in the
absence of evidence of legislative intent to create such a remedy one should not be inferred.5
Here, plaintiffs have not directed us to any evidence of legislative intent to create such a
remedy. 6 Accordingly, we conclude that plaintiffs have failed to establish that the statute
provides a private cause of action.



4
 “[A] statutory remedy for enforcement of a common-law right is deemed only cumulative.”
Pompey v Gen Motors Corp, 385 Mich 537, 553; 189 NW2d 243 (1971).
5
    According to the Lash Court:
                 While the four-factor test [in Gardner] focused exclusively on the purpose
         of the statute, Gardner further observed that the purpose of the statute alone was
         an insufficient basis for inferring a private right of action. Rather, Gardner held
         that the “determination [to infer a private cause of action] should not only be
         consistent with legislative intent, but should further the purpose of the legislative
         enactment.” Gardner held that a cause of action could not be maintained because
         it was inconsistent with the intent of the Legislature, indicating that the imposition
         of a private cause of action was “a matter of legislative resolution.” [Lash, 479
         Mich at 193.]
6
  By contrast, MCL 554.139 mandates that “in every lease or license of residential premises, the
lessor or licensor covenants” to keep the premises fit for intended uses. Thus, the statute creates


                                                  -5-
         Similarly, plaintiffs’ claim that the installation of the downspout violates various
Ypsilanti codes, and so is grounds for an independent claim of negligence also fails. Plaintiffs
provide no authority in support of their suggestion that a violation of an ordinance should give
rise to a private right of action. The only cases cited by plaintiffs in this regard state that an
ordinance violation is evidence of negligence; none hold that an ordinance violation gives rise to
a private right of action in negligence where the claim would otherwise be limited to a premises
liability action. 7

       Affirmed. No costs as neither party have prevailed in full.



                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Douglas B. Shapiro
                                                            /s/ Amy Ronayne Krause




a duty flowing directly from the lessor to the tenant. In addition, that statute provides that “the
provisions of this section shall be liberally construed.”
7
 Our decision to affirm the dismissal of the building code violations count should not be read to
suggest that the evidence of the alleged violations is inadmissible. Such evidentiary issues are
not before us and are properly left to the discretion of the trial court.


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