With winter knocking at our door, a common question is whether landlords are liable for slip and falls on ice in the common areas of their rental properties. For nearly two decades, the Michigan Courts have been quick to dismiss these cases where the area in question was found to be “fit for its intended use.” [MCL 554.139(1)(a)] However, in 2016 an appeals panel performed a deep dive into the issue and found that a parking lot or driveway may “double” as a sidewalk if it is primarily used as a pedestrian walkway. Hendrix v. Lautrec, Ltd., No. 328191, 2016 Mich. App. LEXIS 1992 (Ct. App. Oct. 27, 2016) In March of this year, the Michigan Supreme Court denied leave. This represents a stark departure from the conservative approach to these cases we have seen from our judiciary in years past.
In Hendrix, the plaintiff slipped and fell while walking across an adjoining driveway at the apartment complex where she resided. The trial court dismissed the plaintiff’s statutory claim, finding that she failed to present sufficient evidence that, while icy, the driveway could not be used for its intended “mixed use” purpose. The Court of Appeals reversed in part, choosing rather to focus on the “functional use” of the adjoining driveway as opposed to its namesake. The court held, “the connected driveways in this case are not used primarily for parking in practice; they are also intended for pedestrian access to the garages and pedestrian access to the residential units. In these senses, the driveways are more akin to sidewalks.” Hendrix, pages 9-10. While the decision on its face struck a blow to landlords, the Michigan Supreme Court may have tipped its hand toward what can be expected in the future.
On March 29, 2019, The Michigan Supreme Court denied leave in the matter after hearing oral argument, including amicus briefs filed by the Michigan Association for Justice. (see Stacker v Lautrec, Ltd., 503 Mich 991 (2019)1 While the court denial of leave served as a great victory for the plaintiff’s bar, opinions written by two of the justices are of particular concern to me.
Justice Viviano agreed with the majority that “there remains a genuine issue of material fact as to whether defendant violated [MCL 554.139 (1)(a)] by failing to keep the driveway fit for the use intended by the parties,” however, he went on to point out that the obligation of a landlord may not be an “ongoing” one. The suggestion here is that landlords may only be held liable for icy conditions in the common areas of the property at the inception of the lease. What is interesting about this take on the statute is that it ignores section 1(b), which incorporates the phrase “keep in reasonable repair during the term of the lease…” Clearly, if the legislature wished to create a one-time obligation of a landlord to transfer possession of property in a reasonable condition and allow it to abandon its obligation later, it would presumably have said so.
Of equal concern was the dissenting opinion of Justice Markman. Relying upon Allison v AEW Capital Mgmt, LLP, 481 Mich 419 (2008), Justice Markman was of the opinion that the obligation of a landlord with respect to maintaining its property free of ice and snow merely requires “reasonable access.” In the dissent he writes, “the ice on the driveway did not ‘preclude’ plaintiff from accessing either her vehicle or her residential unit.” And despite the fact that the ice was created by a defective downspout upon the property, i.e., an unnatural accumulation, Markman was determined that the driveway was “entirely fit” for the use of parking a vehicle and provided reasonable access to the vehicle and residential units. It should be noted that the terms “reasonable access” do not appear in the statute. However, the impact of this phrase, if interpreted similarly by the majority in a future case, could mean that absent an avalanche on the property, landlords would have no duty to remove snow and ice.
Thankfully, the Supreme Court has not tilted so far right to align itself with these radical notions of premises law. However, if Michigan jurisprudence has taught us anything about tort law, it’s prone to reform.
1Celestine Stacker is the personal representative of the Estate of Me Hendrix who died during the pendency of the proceedings.
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A. Vince Colella is a founding partner of Moss & Colella P.C., a Southfield, Michigan based law firm specializing in personal injury and civil rights. He can be reached at vcolella@mosscolella.com.
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