                          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STEPHANIE BATTLE,                                                  UNPUBLISHED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
COMPANY, ANYL MANAGEMENT CO, and
MMC OF YPSILANTI,

               Defendants.


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

O’BRIEN, P.J. (dissenting).

         I respectfully dissent. The majority concludes that the trial court erred in granting
defendants’ motion for summary disposition because a question of fact exists as to whether the
walkway at issue was fit for its intended use under MCL 554.139(1)(a), explaining, essentially in
full, as follows:

       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
       preventative measures taken to alleviate the dangers of ice and snow
       accumulation, and the fact that plaintiff did fall.

I disagree.

        In Allison v AEW Capital Mgt, LLP, 481 Mich 419, 423; 751 NW2d 8 (2008), a
“[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.” Our Supreme Court,
recognizing that MCL 554.139(1)(a) requires that lessors “ensure that the entrance to, and the
exit from, the lot is clear, that vehicles can access the parking spaces, and that tenants have
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reasonable access to their parked vehicles,” concluded “that there could not be reasonable
differences of opinion regarding the fact that tenants were able to enter and exit the parking lot,
to park their vehicles therein, and to access those vehicles.” Id. at 429-430. Consequently, the
Supreme Court held, “plaintiff has not established that tenants were unable to use the parking lot
for its intended purpose, and his claim fails as matter of law.” Id. at 430. It then continued,
explaining as follows:

               While a lessor may have some duty under MCL 554.139(1)(a) with regard
       to the accumulation of snow and ice in a parking lot, it would be triggered only
       under much more exigent circumstances than those obtaining in this case. The
       statute 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 being fit for its intended purpose. [Id.]

        In this case, while plaintiff did present more evidence in this case than the plaintiff in
Allison, the value of the evidence presented in this case and in Allison is the same—seemingly
ordinary ice and snow accumulation on a winter day. Allison, 481 Mich at 430 (“Plaintiff’s
allegation of unfitness was supported only by two facts: that the lot was covered with one to two
inches of snow and that plaintiff fell.”). Consequently, while the walkway at issue in this case
was not necessarily maintained in an ideal condition, there is no evidence, at least in my view,
establishing that the seemingly ordinary ice and snow accumulation was anything more than
merely inconvenient. Therefore, plaintiff’s claim under MCL 554.139(1)(a) must fail as a matter
of law. Id.1

                                                            /s/ Colleen A. O'Brien




1
  I recognize that there is some disagreement as to whether the decision that I would reach here is
inconsistent with this Court’s opinion in Benton v Dart Props, 270 Mich App 437; 715 NW2d
335 (2006). However, as I have explained before, I am of the view that my decision is both
consistent with and required by our Supreme Court’s decision in Allison. See, e.g., Hendrix v
Lautrec, Ltd, unpublished opinion of the court of Appeals, issued October 27, 2016 (Docket No.
328191) (O’BRIEN, J., concurring in part and dissenting in part).


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