By Kelly Caplan
BridgeTower Media Newswires
The Michigan Supreme Court has ordered oral argument in a case to determine if a condominium association owes a duty to a condo unit co-owner who was injured in a common area of the complex.
In Janini v. London Townhouses Condo. Ass’n, Daoud Janini was injured after he fell in a common area. In an unpublished decision, a Court of Appeals panel ruled that Janini was neither an invitee nor licensee, so the condo association should have been granted summary disposition on his premises liability claim.
The appellate court said that, as an owner of a unit in the condo complex, Janini was also a co-owner of the common areas. Since he was in possession of those common areas, he was not on land that was in the possession of another when he slipped and fell and was therefore barred from bringing a premises liability claim.
Now, the high court has directed the parties to address if the appellate court correctly held in 2015’s Francescutti v Fox Chase Condo Ass’n decision that a condominium co-owner who slipped and fell on an icy, snow-covered sidewalk in a common area was neither a licensee nor an invitee and, therefore, there was no duty owed to the co-owner by the condo association under the principles of premises liability.
Several groups have been invited to file amicus briefs, including the Michigan Association of Justice and the Michigan Defense Trial Counsel, as well as the Negligence Section and the Real Property Law Section of the State Bar of Michigan. Other interested persons or groups also may move the court for permission to file amicus briefs.
Daoud and Feryal Janini own a condo unit in the London Townhouses development in Westland. The defendant, a non-profit corporation known as the London Townhouses Condominium Association, is responsible for the management, maintenance, and administration of the complex’s common elements, including sidewalks and the parking lot.
Daoud was taking trash to the dumpster one winter morning. As he walked along the sidewalk and across the parking lot on his way to the dumpster, he slipped and fell on snow- and ice-covered pavement. Daoud struck the back of his head against the ice on the ground.
Daoud and Feryal filed suit against the association, alleging it breached its duty to remove snow and ice from the sidewalk and parking lot. In its response, the association claimed affirmative defenses, including the open and obvious danger defense.
The association filed a motion for summary disposition, saying Daoud and Feryal’s claims sounded only in premises liability. The association also maintained that, under Francescutti, Daoud and Feryal were prohibited from bringing a premises liability claim because they were owners of the condo unit and co-owners of the common areas of the complex.
And even if Daoud and Feryal had a viable premises liability claim, the association argued it was not liable for the sidewalk’s dangerous condition since it was open and obvious.
Daoud and Feryal responded, asserting that the association’s promise to provide maintenance of its common sidewalks made it liable for failing to remove the snow and ice. They also claimed the association’s motion should be denied because “the applicable law completely supports plaintiffs’ contention that the hazard posed by the snow- and ice-covered sidewalk was effectively unavoidable under the circumstances.” As such, the association breached its common law and contractual duties, and that breach was a proximate cause of Daoud’s injuries.
The Wayne County Circuit Court granted in part and denied in part the association’s motion, dismissing all of Daoud and Feryal’s claims except the premises liability claim because of genuine issues of fact.
After its reconsideration motion was denied, the association appealed.
In Francescutti, a condo co-owner slipped and fell on an icy sidewalk in a common area of the condo complex. His premises liability suit against the condo association said he was an invitee with respect to the complex’s common areas, but the association argued the co-owner was a licensee.
The Francescutti court said the key to resolving the matter lay in the phrase in the definitions of both licensee and invitee — “the land of another.”
“[T]he plaintiff is, by his own admission, a co-owner of the common areas of the development,” the Francescutti court said. “Plaintiff’s brief acknowledges that the condominium owners are co-owners as tenants in common of the common areas of the development. And because plaintiff is neither a licensee nor an invitee, there was no duty owed to plaintiff by defendant under premises liability.”
Daoud and Feryal, like the plaintiff in Francescutti, were co-owners of the land on which Daoud fell. They purchased a unit in the complex, which allowed them to occupy their unit.
It also required that they be members of the association. As long as they paid the required monthly fees and complied with the complex rules, they were entitled to use the complex’s common areas.
“Because plaintiffs were in possession of the condominium’s common areas, Daoud was not on land that was in the possession of another when he slipped and fell; he was thus neither an invitee nor a licensee at the time of the fall, and plaintiffs were thus precluded from bringing a premises liability claim,” the panel concluded.
Shapiro felt the Francescutti got it wrong.
“[B]ecause I believe Francescutti was wrongly decided and absent its binding authority would affirm the trial court, I would issue a published decision requesting that a special panel be convened to reconsider whether condominium associations should be immune from premises liability actions brought by condominium unit owners,” he wrote.
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