                          STATE OF MICHIGAN

                           COURT OF APPEALS



JENNA S. AFHOLTER also known as JENNA S.                            UNPUBLISHED
AFFHOLTER,                                                          March 8, 2018

               Plaintiff-Appellant,

v                                                                   No. 336059
                                                                    Kent Circuit Court
PHILLIP C. MATUK,                                                   LC No. 16-002551-NO

               Defendant-Appellee.


Before: MARKEY, P.J., and M. J. KELLY and CAMERON, JJ.

M. J. KELLY, J. (dissenting).

     Because I believe factual questions prevent the granting of summary disposition under
MCR 2.116(C)(10), I respectfully dissent.

        It is worth reciting the standard imposed upon a court deciding a summary disposition
motion under MCR 2.116(C)(10). A motion brought pursuant to MCR 2.116(C)(10) tests the
factual support of a plaintiff’s claim. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572
NW2d 201 (1998). It is to be reviewed by considering the pleadings, admissions, and other
evidence submitted by the parties in the light most favorable to the nonmoving party. Latham v
Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). 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.” Id. A genuine issue of material fact exists when “reasonable
minds could differ on an issue after viewing the record in the light most favorable to the
nonmoving party.” Allison v AEW Capital Mgt, 481 Mich 419, 425; 751 NW2d 8 (2008).
Moreover, when interpreting MCL 554.139, the statute at issue in this case, this Court must be
mindful that the statute is to “be liberally construed.” MCL 554.139(3).

        The majority properly notes that, under Allison, a landlord may be liable pursuant to
MCL 554.139(1)(a) for failing to maintain the common areas of its property so that they are “fit
for the use intended.” Allison, 481 Mich at 423. I agree with the parties, the lower court, and the
majority that the sidewalk at issue is a common area. See id at 427-428.

        It is the majority’s treatment of Hadden v McDermitt Apts, LLC, 287 Mich App 124; 782
NW2d 800 (2012) that I find problematic. The majority quotes Hadden for the proposition that
when compared to “one to two inches of snow” in a parking lot, i.e., the factual circumstances in
Allison, the “black ice” on a stairway in Hadden presented more than a “[m]ere inconvenience.”
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The majority then posits that, just like the one to two inches of snow in Allison, the ice patch in
this case only presents a “mere inconvenience.” In my view, the majority fails to appreciate the
distinction the Hadden Court made between the primary purpose of a parking lot and the primary
purpose of a stairway. In Hadden, this Court reasoned:

               This case is factually distinguishable from Allison because black ice on a
       stairway presents more than the “[m]ere inconvenience posed by “one of two
       inches of snow” in a parking lot. See Allison, 481 Mich at 423. Furthermore, as
       the Court stated in Allison, the primary use of a parking lot is to park cars. Id. at
       429. Although the Court recognized that tenants must have reasonable access to
       their vehicles in a parking lot, i.e., they must be able to walk to the vehicles, id.,
       tenants do not use a parking lot for its intended use by merely walking in the lot.
       Walking in a parking lot is secondary to the parking lot’s primary use. In
       contrast, a tenant uses a stairway for its intended use solely by walking up and
       down it. Thus, the primary purpose of a stairway is for walking. Indeed, the
       primary purpose and, therefore, intended uses of a parking lot and a stairway are
       two different things. [Hadden, 287 Mich App at 132 (alteration in original).]

Like the stairway in Hadden, the primary purpose and intended use of the sidewalk in this case is
for walking from the apartment complex to another sidewalk. Thus, the undisputed presence of
ice and snow on the sidewalk in this case is necessarily different than the accumulation of snow
in a parking lot insofar as the accumulation of ice and snow affects the primary purpose of a
sidewalk differently than it affects the primary purpose of a parking lot.1 Here, just as in
Hadden, under all the circumstances presented, the snow- and ice-covered sidewalk may not
have been fit for its intended use at the time plaintiff fell.

        The majority distinguishes the ice in this case from the ice in Hadden by noting that
Hadden involved “black ice” whereas the ice in this case was visible and avoidable. However,
its review of the evidence has the whiff of a premises liability “open-and-obvious” analysis.
This is a mistake. It is well established that the open and obvious doctrine does not apply to a
claim alleging a statutory violation. Walker v City of Flint, 213 Mich App 18, 21-22; 539 NW2d
535 (1995). There is a long, well-known, and often curious body of law addressing this doctrine
in Michigan jurisprudence. In short, a premises owner owes no duty to protect or warn against
open and obvious hazards. Lugo v Ameritech Corp, 464 Mich 512, 516-519; 629 NW2d 384
(2001). “[W]here the dangers are known to the invitee or are so obvious that the invitee might
reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee
unless he should anticipate the harm despite knowledge of it on behalf of the invitee.” Id. at 516
(quotation marks and citation omitted). A dangerous condition is open and obvious when the
hazard is such that an average person of ordinary intelligence would have discovered it upon
casual inspection. Joyce v Rubin, 249 Mich App 231, 238; 642 NW2d 360 (2002).



1
  Anyone living in Michigan for any period of time is cognizant that it takes more than a few
inches of snow to disrupt the ability to safely park a vehicle in a parking lot than it does to render
a sidewalk hazardous for walking.


                                                 -2-
        We are not addressing the issue of duty in this case. The duty here is set forth by the
statute, MCL 554.139(1)(a), and the only question is whether the statute was breached.
Therefore, while perhaps significant for a comparative negligence analysis, the fact that “patches
of ice are commonly found on walkways throughout Michigan in the winter,” that the ice was
“easy to see and plainly visible,” or that “plaintiff had no other complaints or problems with the
walkway,” is simply irrelevant in determining whether MCL 554.139(1)(a) was violated.

        It is indisputable that there was a patch of ice close to 12 inches that plaintiff slipped and
fell on. The record contains evidence that in addition to the patch of ice, the sidewalk was
completely covered in hard-packed snow such that the concrete was not visible. In addition,
weather reports submitted as part of the lower court record indicate that there had been no recent
snowfalls. Indeed, warming temperatures during the preceding days appear to have been enough
to melt snow in the area from a depth of eight inches to one inches, while the nighttime
temperatures fell below the freezing point. In reviewing this evidence in a light most favorable
to the non-moving party, I believe that reasonable minds can differ as to whether this evidence
creates a breach of the statute. Therefore a jury should determine whether this was a violation of
the landlord’s statutory duty to keep this common area walkway “fit for the use intended.” It is
not for us to determine, as matter of law, that this was or was not “an ideal condition” or a “mere
inconvenience.” Those are inherently factual questions, especially given that the primary
purpose of the sidewalk is for walking.

                                                              /s/ Michael J. Kelly




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