                          STATE OF MICHIGAN

                             COURT OF APPEALS


STEPHANIE BATTLE,                                                   UNPUBLISHED
                                                                    June 13, 2017
               Plaintiff-Appellant,

v                                                                   No. 332276
                                                                    Washtenaw Circuit Court
ANDERSON VILLAS LLC, and ERIE                                       LC No. 14-000748-NO
INVESTMENTS LLC,

               Defendants-Appellees,
and

ANDERSON VILLAS MANAGEMENT CO.,
ANYL MANAGEMENT CO., and MMC OF
YPSILANTI,

               Defendants.



Before: O’BRIEN, P.J., and SERVITTO and STEPHENS, JJ.

PER CURIAM.

       In this slip and fall action, plaintiff Stephanie Battle appeals as of right the trial court
order granting summary disposition to defendants Anderson Villas LLC, and Erie Investments
LLC1 under MCR 2.116(C)(10), after finding that the icy patch upon which plaintiff slipped was
open and obvious and not effectively unavoidable, and that the sidewalk was fit for its intended
use under MCL 554.139(1)(a). We reverse and remand.

                                       I. BACKGROUND

        Plaintiff suffered a fall at around 11:30 p.m. on February 25, 2014, outside of her home
as she was walking to her car. In February 2014, plaintiff lived in Anderson Villas, an apartment
complex with 302 ranch-style apartments, divided into 46 buildings. The entry door of
plaintiff’s apartment abutted a small walkway with grass on each side. Her walkway led to a

1
  Defendant MMC of Ypsilanti Inc. was voluntary dismissed on September 15, 2014.
Defendants Anderson Villas Management Company and Anyl Management Company were
voluntary dismissed on December 2, 2014.



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common area sidewalk that abutted the parking lot. The parking spaces abutted the common
area sidewalk.

        As a consequence of her fall, plaintiff sued the defendants. Her suit asserted a claim of
common law negligence as well as a claim for violation of MCL 554.139 for failure to keep the
premises and all common areas fit for their intended use. Discovery ensued, and after its close
defendants motioned the court for summary disposition under MCR 2.116(C)(10). Defendants
argued that the sidewalk was fit for its intended purpose because it provided a reasonable means
of traversing from tenants’ vehicles to their apartments and that the patch of ice that plaintiff
allegedly slipped on was open and obvious. Plaintiff argued that the common area in which she
suffered her fall was not fit for its purpose of giving her reasonable access to her vehicle, that the
danger that occasioned her fall was neither open nor obvious and that regardless the danger was
effectively unavoidable. The trial court agreed with defendants.

                                  II. STANDARD OF REVIEW

        We review de novo the trial court’s decision to grant or deny a motion for summary
disposition. Adair v State, 470 Mich 105, 119; 680 NW2d 386 (2004).

       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. MCR 2.116(C)(10), (G)(4). [Maiden v Rozwood,
       461 Mich 109, 120; 597 NW2d 817 (1999)].

                                          III. ANALYSIS

                                     A. STATUTORY DUTY

       Plaintiff argues that the trial court erred in finding that there was no genuine issue of
material fact regarding whether defendants breached their duty under MCL 554.139(1)(a) to
maintain the sidewalk in a manner that was fit for its intended use of walking. We agree.

        Since this is a motion under (C)(10), it is useful to review the evidence presented by the
plaintiff in opposition to the motion. Plaintiff testified that on the morning of her accident, she
observed patches of ice on the sidewalk abutting her walkway and was able to traverse safely to
her door. Later that evening, she left her apartment with the intention to start her automobile
before work. She testified that she fell before reaching her car. She testified that she felt ice
underneath her after she fell. Plaintiff also offered the testimony of her neighbors regarding the
complex’s laxity in clearing ice and snow as well as testimony from them and her daughter,
Raven Battle, who came to her aid that night, regarding the extent of icing on the sidewalk and
grass. Plaintiff offered expert testimony regarding the weather conditions leading up to her fall
from Certified Consulting Meteorologist Paul H. Gross. According to Gross, as of February 22,
large piles of plowed and shoveled snow would have existed adjacent to the sidewalks in the
complex. Gross’ opinion is supported by Martin’s testimony that on the night of plaintiff’s fall,


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there was an accumulation of a foot of snow on the grass. Gross’ review of meteorological
conditions showed that temperatures on February 22 and 23 were above freezing and caused the
snow remaining on sidewalks to melt. According to Gross, weather records further indicated that
after 4:00 p.m. on February 23 through February 25, temperatures remained well below freezing.
This observation is partly supported by defendants’ snow removal log for February 26 that
indicated the temperature was 22° Fahrenheit and from the depositions of multiple witnesses
who relayed that it was very cold on the night of plaintiff’s fall, as well as Raven’s testimony
that her windows were frosted. Gross opined that “the ice Plaintiff encountered developed no
later than late afternoon on the 24th, but very likely on the late afternoon of the 23rd.” At the
very least, ice would have existed for over twenty-four hours on plaintiff’s sidewalk.

        Additionally, the court had before it the testimony of Gyde, defendants’ person
responsible for snow removal. Gyde’s testimony was that he worked Monday through Friday,
8:00 a.m. to 5:00 p.m. Snow removal logs indicated that the last snow removal work performed
was on February 20, 2014, which was a Thursday. On that day, Gyde and another worker
plowed, snowblowed and salted the complex, applying 20 bags or 1000 pounds of “ice melt” due
to thick ice which Gross opined was due to thawing and refreezing. Gyde next plowed and
performed an ice break up after plaintiff’s fall using 750 pounds of materials over two days.
Gyde testified that while no removal was done until after the fall, he had driven around the
complex, including the area of plaintiff’s apartment on the day before her fall

       The parties arguments as to the viability of plaintiff’s statutory claim focuses on two
cases: Allison v AEW Capital Mgt LLP, 481 Mich 419; 751 NW2d 8 (2008) and Benton v Dart
Properties, 270 Mich 437, 443 n 2; 715 NW2d 335 (2006). Reading them, not as contradictory
but complimentary, we find that under either case, the record in this case presents a material
question of fact to be resolved by a jury.

        Both cases analyze MCL 554.139 and discuss a lessor’s duty to keep the “premises and
all common areas [] fit for the use intended by the parties.” The duty under MCL 554.139(1)(a)
“arises from the existence of a residential lease and consequently becomes a statutorily mandated
term of such lease.” Allison, 481 Mich at 425. MCL 554.139 “impose[s] a higher duty on
landlords than on other inviters given the enhanced rights afforded tenants.” Benton, 270 Mich
at 443 n 2. The provisions of MCL 554.139 are to be liberally construed. MCL 554.139(3).

        Both cases address the physical scope of this heightened duty. “[I]n the context of leased
residential property, ‘common areas’ describes those areas of the property over which the lessor
retains control that are shared by two or more, or all, of the tenants. A lessor’s duties regarding
these areas arise from the control the lessor retains over them.” Allison, 481 Mich at 427.
“[T]he sidewalks located within an apartment complex constitute ‘common areas.’ ” Benton,
270 Mich App at 442. “Therefore, a landlord has a duty to take reasonable measures to ensure
that the sidewalks are fit for their intended use,” which the Benton Court concluded was for
walking. Id. at 442-444.

       Defendants argue that Allison, supra, is controlling. In Allison, the “[p]laintiff fractured
his ankle during a fall when he was walking on one to two inches of accumulated snow in the
parking lot of his apartment complex.” 481 Mich at 423. Like here, the plaintiff alleged
negligence and a breach of MCL 554.139(1). Our Supreme Court held, “[a] lessor’s obligation


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under MCL 554.139(1)(a) with regard to the accumulation of snow and ice concomitantly would
commonly be to ensure that the entrance to, and the exit from, the lot is clear, that vehicles can
access parking spaces, and that tenants have reasonable access to their parked vehicles.” Id. The
Court further held, that MCL 554.139(1)(a) “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 for use as a parking lot. Mere inconvenience of
access, or the need to remove snow and ice from parked cars, will not defeat the characterization
of a lot as being fit for its intended purposes.” Id. at 430. The Court concluded that the facts
“that the lot was covered with one to two inches of snow and that [the] plaintiff fell” did “not
establish[] that tenants were unable to use the parking lot for its intended purpose.” Id. A
parking lot is not unfit simply because it is covered with snow and ice. Id. at 431. The Allison
Court however specifically overruled Teufel v Watkins, 267 Mich App 425; 705 NW2d 164
(2005), “to the extent that Teufel held that a lessor’s duty to maintain the premises and common
areas ‘fit for the use intended’ under MCL 554.139(1) can never include snow and ice removal.”
481 Mich at 438. The Allison Court applied the principle of Benton, that parking lots and
sidewalks are common areas to which the duty to provide reasonable access applies. However, it
found that the facts in the case before it did not create a material question of fact that the duty
was breached. Id.

        Plaintiff argues Benton, supra, should control. In Benton, the plaintiff fell on an “icy
sidewalk” while walking from his apartment to a parking space in the apartment complex. 270
Mich App at 438-439. The plaintiff saw ice patches on some of the complex’s sidewalks when
he left for work that morning at 6:15 a.m. and noticed the sidewalks were covered with snow
when he returned home from work at about 6:00 p.m. Id. at 439. The plaintiff fell later that
evening on a “four to five feet long” patch of ice while walking “to a different car than the one
he had taken to work earlier in the day, thereby causing him to take a different route than the one
he had taken previously.” Id. The sidewalk where the plaintiff fell was not illuminated. The
plaintiff complained that the defendant violated its statutory duty under MCL 554.139(1)(a) and
general negligence law “to remove snow and ice on the sidewalk in a timely manner.” Id. The
Benton Court summarized the conflicting evidence regarding the measures taken both on the day
of the incident and on other occasions to ameliorate the effects of winter weather on the common
areas. Benton applied the principle of Trentadue v Buckler Automatic Lawn sprinkler Co, 266
Mich App 297, 306; 701 NW2d 756 (2005), that “[a] genuine issue of material fact exists when
the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue
upon which reasonable minds might differ.” Benton concluded, “From the evidence presented,
reasonable minds might differ regarding whether defendant’s preventive measures, which
consisted of salting the sidewalks only once in the morning on the day that plaintiff slipped and
fell, constituted reasonable care in light of the weather conditions that day.” 270 Mich App at
445 (emphasis added).

        In the context of a (C)(10) motion for summary disposition, our focus is whether a
genuine issue of material fact exists regarding whether defendants breached their duty under
MCL 554.139(1)(a) to take reasonable measures to address the accumulation of ice and snow on
the sidewalks in its complex. Benton, 270 Mich App at 444. From this record, it appears that
plaintiff established a genuine issue of material fact as to whether defendants breached their duty
under MCL 554.139(1)(a), and it was therefore error for the trial court to have granted
defendants summary disposition. “A genuine issue of material fact exists when the record,


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giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which
reasonable minds might differ.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468
(2003). Reasonable minds could disagree as to whether defendants took reasonable measures to
maintain the sidewalk in a condition that was fit for walking on in light of the weather conditions
leading up to plaintiff’s fall, the evidence of preventive measures taken to alleviate the dangers
of ice and snow accumulation, and the fact that plaintiff did fall.

                                   B. COMMON LAW DUTY

        Plaintiff also argues that the trial court erred in finding that no genuine issue of material
fact existed as to whether the icy snow-covered sidewalk in front of plaintiff’s apartment was
effectively unavoidable. In Benton the Court held the “open and obvious danger doctrine cannot
bar a claim against a landlord for violation of the statutory duty to maintain the interior sidewalks
in a condition fit for the use intended under MCL 554.139(1)(a).” 270 Mich App at 438. In
other words, “if defendant breached its duties under MCL 554.139, defendant would be liable to
plaintiff even if the ice on the sidewalk was open and obvious.” Id. at 441. Because we
conclude that plaintiff demonstrated a genuine issue of material fact under MCL 554.139, it is
unnecessary for this Court to address the question of whether the icy patches on the sidewalk
were open and obvious or effectively unavoidable. See Id. at 445 (“In light of our holding that
the open and obvious danger doctrine does not bar plaintiff's claim against defendant for
violating its statutory obligation under MCL 554.139(1)(a), we need not address plaintiff's
remaining issues on appeal.”).

        Reversed and remanded for proceedings not inconsistent with this opinion. We do not
retain jurisdiction.

                                                              /s/ Deborah A. Servitto
                                                              /s/ Cynthia Diane Stephens




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