                          STATE OF MICHIGAN

                           COURT OF APPEALS



TIMOTHY DAVIES,                                                     UNPUBLISHED
                                                                    September 8, 2015
               Plaintiff-Appellant,

v                                                                   No. 320765
                                                                    Ingham Circuit Court
DAVID SHEETS,                                                       LC No. 12-001293-NO

               Defendant-Appellee.


Before: BORRELLO, P.J., and HOEKSTRA and O’CONNELL, JJ.

BORRELLO, P.J. (dissenting).

        The central issue in this case involves whether there was an issue of fact with respect to
whether defendant had constructive notice of the defective patio in this case. Because, when
viewed in a light most favorable to plaintiff there was evidence on which a jury could conclude
that defendant, upon a reasonable inspection of the patio, would have discovered the defect, I
respectfully dissent and would hold that the trial court erred in granting defendant’s motion for
summary disposition.

                                I. FACTUAL BACKGROUND

       Defendant leased residential property to plaintiff for a one-year term commencing on
January 20, 2012. The premises had been certified as compliant with the Lansing Uniform
Housing Code for a rental dwelling, but that certificate was set to expire on December 1, 2012.
In March 2012, a drain problem occurred in the front yard of the property and extensive repair
work was done. Heavy equipment was on the property and a significant portion of the front yard
was dug up during the repair process. There was evidence that concrete at the front the side of
the house was cracking.

        On May 19, 2012, at about 3:00 a.m., plaintiff let his dogs out and was standing on the
corner of the back patio when the corner cracked and collapsed, causing plaintiff to fall and
sustain injuries to his back and neck. Plaintiff commenced this lawsuit alleging negligence and
breach of MCL 554.139(1).

       During discovery, plaintiff submitted an affidavit wherein he stated that he spoke with
defendant on May 3, 2012 and explained that the sewer repairs had caused damage to the
concrete near the front and side of the house and to the front sidewalk, and that defendant did not

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address these concerns until after plaintiff’s injury. Defendant submitted an affidavit in which he
stated that at no point prior to plaintiff’s fall did he receive notification from plaintiff or
otherwise acquire knowledge about any defect to the patio.

         On November 11, 2013, defendant moved for summary disposition under MCR
2.116(C)(10). The trial court concluded that the issue in the case was whether defendant had
notice of any defect in the patio. The trial court concluded that a landlord only has a duty
regarding defects that he knows or should have known about and that the landlord has no duty to
regularly inspect the premises for defects. The trial court stated that there was no expert
testimony suggesting that the work done at the front of the house could have caused the back
patio to break. The trial court additionally stated that there was no evidence that the work in the
front caused a defect that would have been noticed on casual inspection. The trial court stated
that “[t]here is no support for the proposition that a casual inspection by the landlord would have
disclosed this potential, I guess, impending condition.” The trial court granted defendant’s
motion for summary disposition and denied plaintiff’s motion for reconsideration. This appeal
ensued.

                                         II. ANALYSIS

        We “review[] the grant or denial of summary disposition de novo to determine if the
moving party is entitled to judgment as a matter of law.” Maiden v Rozwood, 461 Mich 109,
118; 597 NW2d 817 (1999). Summary disposition is proper under MCR 2.116(C)(10) where,
when viewed in a light most favorable to the non-moving party, “the proffered evidence fails to
establish a genuine issue regarding any material fact. . . .” Id. at 120. “A genuine issue of fact
exists when the record, drawing all reasonable inferences in favor of the nonmoving party, leaves
open an issue on which reasonable minds could differ.” Campbell v Kovich, 273 Mich App 227,
229-230; 731 NW2d 112 (2006).

        Plaintiff argues that the trial court erred in granting defendant’s motion for summary
disposition because there was evidence to support that defendant should have investigated and
discovered the defect in the patio.

        A tenant is considered an invitee of a landlord’s premises. Prebenda v Tartaglia, 245
Mich App 168, 169; 627 NW2d 610 (2001). A landowner “has a duty of care, not only to warn
the invitee of known dangers, but the additional obligation to also make the premises safe, which
requires the landowner to inspect the premises and, depending upon the circumstances, make any
necessary repairs or warn of any discovered hazards.” Stitt v Holland Abundant Life Fellowship,
462 Mich 591, 597; 614 NW2d 88 (2000). Thus, even if a premises possessor does not have
actual knowledge of a defect, he or she can be liable to an invitee if “he should have had
knowledge of it.” Clark v Kmart Corp, 465 Mich 416, 419; 634 NW2d 347 (2001) (emphasis in
original). Accordingly, “the failure to properly inspect may constitute negligence if a reasonable
inspection would have revealed the dangerous condition giving rise to an injury.” Grandberry-
Lovette v Garascia, 303 Mich App 566, 574-575; 844 NW2d 178 (2014).

       This Court has explained that “the failure to properly inspect is most often framed as one
involving constructive notice.” Id. at 575. If a “premises possessor fails to inspect his or her
property, or conducts an inadequate inspection, the law will impute knowledge of the dangerous

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condition to the premises possessor if the dangerous condition is of such a character . . . that a
reasonable premises possessor would have discovered it.” Id. “[W]hether the premises
possessor should have discovered the dangerous condition with a proper inspection will often be
a question of fact for the jury.” Id. at 579.

       The resolution of this appeal turns on whether there was a genuine issue of material fact
regarding whether defendant, upon a proper inspection, should have discovered the dangerous
condition of the porch—i.e. whether defendant had constructive knowledge of the defect.
Contrary to the majority’s conclusion, the resolution of this issue is governed by Grandberry-
Lovette, which is directly on point.

        In Grandberry-Lovette, the defendant owned a residential home that he leased to a third-
party. Id. at 570. The steps leading to the home’s front-porch were of concrete construction with
a decorative brick border. Id. In April 2010, the plaintiff, a healthcare aid, arrived at the rental
property to provide in-home assistance to the residents that lived there. Id. As the plaintiff
walked up the front steps to the porch the “bricks came loose” and she fell and injured herself.
Id. at 571. The defendant testified that approximately 9 to 18 months before the fall, he received
a call about the need to repair the steps. Id. at 570. The defendant went to the home and
discovered some missing and loose bricks and he repaired them. Id. After the repair, the
defendant did not receive any further complaints and he visited the property several times a year
and did a visual inspection and did not discover any other defects. Id.

        The plaintiff sued the defendant, alleging, in part, that the defendant breached his duty to
“timely and adequately” repair the steps and ensure that they were in reasonable repair. Id. at
571. The defendant moved for summary disposition, arguing that there was no evidence to
support that he had constructive knowledge of the defective stairway. Id. In support of this
argument, the defendant “essentially relied on [the plaintiff’s] inability to discover the hazard on
casual inspection to establish that he too, as a reasonably prudent premises possessor, would not
have discovered that the bricks had come loose.” Id. at 580. This Court rejected the defendant’s
argument, explaining:

               for purposes of summary disposition, a premises possessor cannot
       invariably establish that he or she did not have constructive notice of a dangerous
       condition by showing that the dangerous condition would not have been
       discovered during a casual inspection; rather, the premises possessor must show
       that the type of inspection that a reasonably prudent premises possessor would
       have undertaken under the same circumstances would not have revealed the
       dangerous condition at issue. []

              Accordingly, if under the totality of the circumstances a reasonably
       prudent premises possessor would have employed a more vigorous inspection
       regime that would have revealed the dangerous condition, the fact that the
       condition was not observable on casual inspection would not preclude a jury from
       finding that the premises possessor should have discovered the hazard in the
       exercise of reasonable care notwithstanding its latent character. [Id. at 579.]



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        The Grandberry-Lovette Court proceeded to hold that the evidence left open a question
of fact as to whether the defendant had constructive notice of the defective steps. The Court
cited the defendant’s testimony that bricks loosen and deteriorate during Michigan winters and
his testimony that he failed to adequately inspect the bricks following the winter preceding the
plaintiff’s fall in April 2010. Id. at 582. Moreover, despite the defendant’s testimony that the
only way to determine if bricks were loose was to “wiggle them,” following the repairs, the
defendant only performed a visual inspection of the steps to determine if they were in proper
condition during the 9 to 18 months after he repaired the steps and before the plaintiff fell. Id.
This testimony left open a question of fact regarding whether the defendant would have
discovered the loose bricks “in the exercise of reasonable care either at the time of the previous
repair or through a proper inspection at a later time.” Id. at 582.

        In this case, the trial court granted summary disposition, in part upon a finding that
“[t]here is no support for the proposition that a casual inspection by the landlord would have
disclosed this potential, I guess, impending condition.” In doing so, the trial court erred as a
matter of law because “[t]he premises possesor’s duty to inspect . . . is not invariably limited to
‘casual observation;’” rather, the premises possessor must “undertake the type of inspection that
a ‘reasonably prudent’ premises possessor would exercise under similar circumstances to protect
his or her invitees.” Id. at 577-578. In this case, like in Grandberry-Lovette, viewed in a light
most favorable to plaintiff, there was evidence that would allow a rational trier of fact to
conclude that a reasonably prudent premises possessor would have discovered the defect in the
back porch. Specifically, the evidence showed that substantial work was done at the house that
required excavation of the entire front yard. Thereafter, plaintiff informed defendant about
cracks in cement at the front and side of the home following the sewer work and the corner of the
patio eventually collapsed under normal use. The nature of the work performed to the front of
the house coupled with plaintiff’s observations of cracked cement placed defendant on notice
that there could be structural defects to the back of the home including the patio. Like the steps
in Grandberry-Lovette, here, the trier of fact could have concluded that a reasonable landlord
would have inspected the patio and discovered the defects.

        Defendant relies on the city’s certificate and plaintiff’s walk-through inspection to
support that he maintained the home in a reasonable manner. However, the certificate and
inspection were completed before the sewer work and the certificate was set to expire in
December 2012. In the interim, there was substantial sewer work performed at the home, such
that a juror could conclude that new defects would have been discovered upon a reasonable
inspection after the sewer work was completed and defendant was notified of broken cement at
the home. In short, on this record, I would find that reasonable minds could differ as to whether
a reasonably prudent landlord would have discovered the defects in the porch upon inspection.
Campbell, 273 Mich App at 229-230.

        For the same reasons, I would hold that there remain genuine issues of material fact with
respect to whether defendant breached the covenants set forth in MCL 554.139(1) by failing to
maintain the porch in a condition fit for its intended use and by failing to maintain the premises
in reasonable repair. Although I would note that any recovery under the statute is limited to
contractual remedies. See Allison v AEW Capital Mgt, 481 Mich 419, 425; 751 NW2d 8 (2008).



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        In sum, consistent with Grandberry-Lovette, 303 Mich App at 566, because the evidence
left open genuine issues of material fact as to whether defendant would have discovered defects
in the patio upon a reasonable inspection, I would conclude that the trial court erred in granting
defendant’s motion for summary disposition and would reverse and remand for further
proceedings.



                                                            /s/ Stephen L. Borrello




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