                          STATE OF MICHIGAN

                           COURT OF APPEALS



DARLENE SANDIFER,                                                  UNPUBLISHED
                                                                   September 14, 2017
               Plaintiff-Appellant,

v                                                                  No. 332443
                                                                   Wayne Circuit Court
MCKINLEY, INC., also known as THE                                  LC No. 14-001297-NO
COMMONS, and TAYLOR COMMUNITY
DEVELOPMENT,

               Defendants-Appellees.


Before: GADOLA, P.J., and CAVANAGH and SWARTZLE, JJ.

PER CURIAM.

       Plaintiff appeals as of right an order granting defendants’ motion for summary disposition
and dismissing this slip and fall action. We affirm.

         On February 12, 2011, plaintiff was a resident of defendant’s senior apartment complex.
At about 7:00 a.m., she was returning home and parked her vehicle in a parking space by the
closest entrance to her apartment building. There was snow and ice “all along the parking lot
abutting the sidewalk,” and in the grassy areas, but she was able to exit her car and walk through
snow to the sidewalk. After taking a few steps on the sidewalk, she slipped on ice and fell to the
ground. When she was unable to get up because of the icy condition, she crawled back to her
car. She then got up and walked through the parking lot to the entrance of her apartment
building. Plaintiff notified the building management company about the icy condition and, at
about 9:00 a.m., an incident report was generated which included photos.

        On February 3, 2014, plaintiff filed this lawsuit alleging that defendants negligently,
carelessly, and recklessly allowed dangerous conditions to exist in common areas of the
apartment complex in violation of the common law and MCL 554.139.

       Subsequently, defendants filed a motion for summary disposition under MCR
2.116(C)(10), arguing that the ice that allegedly caused plaintiff’s fall was open and obvious, as
well as avoidable. Therefore, her premises liability claim must be dismissed. Further,
defendants did not violate MCL 554.139 because the common area of the apartment complex at
issue—the sidewalk—was “fit for [its] intended uses” and provided “reasonable access” to her
apartment. The sidewalk did have a four to six inch area of ice, but that small area could easily
be avoided. Accordingly, defendants argued, this case must be dismissed.
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         Plaintiff responded to defendants’ motion, arguing that the open and obvious doctrine did
not apply because defendant had a statutory duty under MCL 554.139 to keep the common areas
fit for their intended purpose and the sidewalk was so slippery that it could not be walked upon.
Further, plaintiff argued, the icy condition was not open and obvious because it was effectively
unavoidable.

        Following oral arguments, defendants’ motion for summary disposition was granted. The
trial court noted that MCL 554.139 does not require a landlord to maintain the common areas in
the most ideal of conditions; rather, it only requires the area to be fit for its intended use. And in
this case, the sidewalk was fit for its intended use; thus, no genuine issue of fact existed that
MCL 554.139 was not violated. Further, there was no genuine issue of fact that the icy sidewalk
condition was open and obvious. Accordingly, plaintiff’s case was dismissed.

       Thereafter, plaintiff filed a motion for reconsideration. The trial court denied the motion
holding, in part, that plaintiff failed to establish a question of fact on the issue whether MCL
554.139 was violated. As shown in the photographs provided, the sidewalk in which plaintiff
fell was mostly clear. The slippery area was relatively small and was narrow enough to step
over. This appeal followed, challenging only the dismissal of plaintiff’s statutory claim.

       Plaintiff argues that a genuine issue of material fact existed on the issue whether the
sidewalk was fit for its intended use because ice covered the sidewalk; thus, her statutory claim
should not have been dismissed. We disagree.

      This Court reviews de novo a trial court’s decision on a motion for summary disposition.
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. In evaluating a motion for summary disposition brought under this
       subsection, a trial court considers affidavits, pleadings, depositions, admissions,
       and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most
       favorable to the party opposing the motion. Where the proffered evidence fails to
       establish a genuine issue regarding any material fact, the moving party is entitled
       to judgment as a matter of law. [Maiden v Rozwood, 461 Mich 109, 120; 597
       NW2d 817 (1999)].

       “MCL 554.139 provides a specific protection to lessees and licensees of residential
property in addition to any protections provided by the common law.” Allison v AEW Capital
Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008). MCL 554.139 states, in relevant 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.

Parking lots and sidewalks are “common areas” within the meaning of the statute. Allison, 481
Mich at 428; Benton v Dart Props, Inc, 270 Mich App 437, 443-444; 715 NW2d 335 (2006). A

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parking lot’s intended purpose is satisfied “as long as the tenants are able to park their vehicles in
the lot and have reasonable access to their vehicles.” Allison, 481 Mich at 429. “[T]he intended
use of a sidewalk is walking on it.” Benton, 270 Mich App at 444. And “a sidewalk covered
with ice is not fit for this purpose.” Id.

        In this case, plaintiff argues that because ice covered the width of the sidewalk, the
sidewalk was not fit for its intended use—walking. Plaintiff relies on the holding in favor of the
plaintiff in Benton, and claims that her case is factually indistinguishable. But the patch of ice on
the snow-covered sidewalk that the plaintiff in Benton fell on was four to five feet long. Id. at
439. In this case, there was a relatively small strip of ice across the width of the sidewalk slab,
but it was narrow enough to step over and most of the sidewalk was clear. In other words, the
patch of ice did not render the sidewalk unfit for walking; it could be walked on to access areas
of the apartment complex. See Allison, 481 Mich at 429. Even if the maintenance of the
sidewalk was not perfect or even ideal for winter conditions, it was sufficient to satisfy the
statutory requirements. See id. at 430. Accordingly, as the trial court concluded, there was no
genuine issue of material fact that MCL 554.139 was not violated and defendants were entitled to
summary disposition of this claim.

       Affirmed. Defendants are entitled to tax costs as the prevailing parties. MCR 7.219(A).



                                                              /s/ Michael F. Gadola
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Brock A. Swartzle




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