Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JUNE 25, 2008
IRVING ALLISON,
Plaintiff-Appellee,
v No. 133771
AEW CAPITAL MANAGEMENT, L.L.P.,
d/b/a SUTTON PLACE APARTMENTS,
Defendant,
and
VILLAGE GREEN MANAGEMENT COMPANY
and BFMSIT, II,
Defendants-Appellants.
_______________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted leave to appeal to address the following questions: (1) whether
parking lots in leased residential areas constitute “common areas” under MCL
554.139(1)(a); (2) whether the natural accumulation of snow and ice is subject to
the lessor’s duty set forth in MCL 554.139(1)(a) to keep premises and common
areas “fit for the use intended by the parties”; and (3) whether the natural
accumulation of snow and ice is subject to the lessor’s duty set forth in MCL
554.139(1)(b) to “keep the premises in reasonable repair.” We answer the first
two questions in the affirmative and the third question in the negative. Because
we conclude that the duty set forth in MCL 554.139(1)(a) was not violated here
because one to two inches of snow did not render the parking lot unfit for the use
intended, we reverse the judgment of the Court of Appeals and reinstate the trial
court’s order granting summary disposition in favor of defendants.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff 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. He
then noticed ice on the ground where the snow had been displaced. Plaintiff filed
suit against defendant AEW Capital Management, doing business as Sutton Place
Apartments, alleging negligence and breach of the covenant to maintain and repair
the premises, MCL 554.139(1). The trial court granted summary disposition to
defendant, concluding that the danger was “open and obvious,” and directed that
the pleadings be amended to replace AEW with the proper defendants, Village
Green Management Company and BFMSIT, II.
The Court of Appeals affirmed the trial court’s ruling on the basis of Teufel
v Watkins, 267 Mich App 425, 429 n 1; 705 NW2d 164 (2005), which held that
MCL 554.139(1) does not control a lessor’s duty to remove snow and ice from a
parking lot. Unpublished opinion per curiam, issued November 28, 2006 (Docket
No. 269021). The panel expressed its disagreement with Teufel and sought a
2
conflict resolution panel. Id. After this request was denied, the panel granted
plaintiff’s motion for reconsideration and vacated its initial opinion. Unpublished
order, entered January 19, 2007 (Docket No. 269021). The panel then reversed
the trial court’s grant of summary disposition, stating that Teufel did not constitute
governing precedent because its holding regarding the inapplicability of MCL
554.139(1) was only presented in a footnote. Allison v AEW Capital Mgt, LLP
(On Reconsideration), 274 Mich App 663, 669-670; 736 NW2d 307 (2007). The
panel also concluded that a parking lot constitutes a common area under MCL
554.139(1)(a), that one of a parking lot’s intended uses entails persons walking on
it, and that a parking lot covered with ice is not fit for that purpose. Id. at 670-671.
Defendants filed an application for leave to appeal in this Court, and we granted
leave to appeal. 480 Mich 894 (2007).
II. STANDARD OF REVIEW
This Court reviews de novo the grant or denial of a summary disposition
motion. Saffian v Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007). Matters of
statutory interpretation are also reviewed de novo. Id. Defendants moved for
summary disposition under MCR 2.116(C)(8) and (10). A motion under MCR
2.116(C)(8) should be granted if the pleadings fail to state a claim as a matter of
law, and no factual development could justify recovery. Maiden v Rozwood, 461
Mich 109, 119; 597 NW2d 817 (1999). A motion under MCR 2.116(C)(10)
should be granted if the evidence submitted by the parties “fails to establish a
genuine issue regarding any material fact, [and] the moving party is entitled to
3
judgment as a matter of law.” Id. at 120; see also MCR 2.116(C)(10). There is a
genuine issue of material fact when reasonable minds could differ on an issue after
viewing the record in the light most favorable to the nonmoving party. West v Gen
Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
III. ANALYSIS
Plaintiff asserted two different causes of action in this case: (1) negligence
and (2) breach of the covenants to keep the premises and common areas fit for
their intended use and to keep the premises in reasonable repair, MCL
554.139(1).1 If defendants had a duty under MCL 554.139(1)(a) or (b) to remove
snow and ice from the parking lot, then plaintiff could proceed on his second
claim even if plaintiff’s negligence claim was barred by the “open and obvious”
danger doctrine.2 MCL 554.139 provides a specific protection to lessees and
licensees of residential property in addition to any protection provided by the
common law. The statutory protection under MCL 554.139(1) arises from the
existence of a residential lease and consequently becomes a statutorily mandated
1
The merits of plaintiff’s negligence claim are not before this Court.
2
Under common-law negligence principles, a premises owner has a duty to
exercise reasonable care to protect an invitee from an unreasonable risk of harm
caused by a dangerous condition on the premises, but not when the condition is
“open and obvious.” Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d
384 (2001). However, a defendant cannot use the “open and obvious” danger
doctrine to avoid liability when the defendant has a statutory duty to maintain the
premises in accordance with MCL 554.139(1)(a) or (b). Woodbury v Bruckner,
467 Mich 922 (2002); O’Donnell v Garasic, 259 Mich App 569, 581; 676 NW2d
213 (2003).
4
term of such lease. Therefore, a breach of the duty to maintain the premises under
MCL 554.139(1)(a) or (b) would be construed as a breach of the terms of the lease
between the parties and any remedy under the statute would consist exclusively of
a contract remedy.3
A. “COMMON AREAS”
MCL 554.139 provides:
(1) In every lease or license of residential premises, the lessor
or licensor covenants:
(a) That the premises and all common areas are fit for the use
intended by the parties.
(b) To keep the premises in reasonable repair during the term
of the lease or license, and to comply with the applicable health and
safety laws of the state and of the local unit of government where the
premises are located, except when the disrepair or violation of the
3
Although the nature and extent of plaintiff’s remedy are not at issue in this
case, we note that, typically, a plaintiff’s remedy for breach of contract is limited
to damages that “arise naturally from the breach or those that were in the
contemplation of the parties at the time the contract was made.” Kewin v
Massachusetts Mut Life Ins Co, 409 Mich 401, 414; 295 NW2d 50 (1980) (citation
omitted). The purpose of this remedy is to “place the nonbreaching party in as
good a position as if the contract had been fully performed.” Corl v Huron
Castings, Inc, 450 Mich 620, 625; 544 NW2d 278 (1996).
The dissent “would hold that a plaintiff who proves a claim under MCL
554.139(1) is entitled to full damages for the injury,” citing the Second
Restatement of Torts, § 357, which states that “‘[a] lessor of land is subject to
liability for physical harm caused to his lessee . . . if the lessor, as such, has
contracted by a covenant in the lease or otherwise to keep the land in repair. . . .’”
Post at 8. This section of the Second Restatement of Torts applies to the tort of
negligence. We reiterate that the merits of plaintiff’s negligence claim are not
before this Court. In addition, as discussed infra, the covenant to repair, MCL
554.139(1)(b), does not apply to common areas and would not impose a duty on
the lessor to keep parking lots free from the natural accumulation of ice and snow.
5
applicable health or safety laws has been caused by the tenant’s
wilful or irresponsible conduct or lack of conduct.
The primary goal of statutory interpretation is “to ascertain the legislative
intent that may be reasonably inferred from the words expressed in the statute.” G
C Timmis & Co v Guardian Alarm Co, 468 Mich 416, 420; 662 NW2d 710
(2003). If the language of the statute is clear, we presume that the Legislature
intended the meaning expressed. Id. If the statute does not define a word, we may
consult dictionary definitions to determine the plain and ordinary meaning of the
word. Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34
(2002). However, legal terms of art are to be construed according to their peculiar
and appropriate meaning. MCL 8.3a.
MCL 554.139 does not define the term “common areas.” However,
Black’s Law Dictionary (6th ed), p 275, defines “common area” as: “[i]n law of
landlord-tenant, the portion of demised premises used in common by tenants over
which landlord retains control (e.g. hallways, stairs) and hence for whose
condition he is liable, as contrasted with areas of which tenant has exclusive
possession.” This definition is in accord with the plain and ordinary meaning of
the term. “Common” is defined as “belonging equally to, or shared alike by, two
or more or all in question[.]” Random House Webster’s College Dictionary
(1997). Therefore, in 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
6
areas arise from the control the lessor retains over them. See, e.g., Williams v
Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418 NW2d 381 (1988) (stating
that “a landlord may be held liable for an unreasonable risk of harm caused by a
dangerous condition in the areas of common use retained in his control such as
lobbies, hallways, stairways, and elevators”).
The issue in this case concerns whether parking lots within leased
residential property constitute “common areas” within the meaning of the statute.
The Court of Appeals answered in the affirmative, relying on Benton v Dart
Properties, Inc, 270 Mich App 437; 715 NW2d 335 (2006), to conclude that
parking lots constitute common areas. In Benton, supra at 442-443, the Court of
Appeals held that sidewalks within an apartment complex constitute common
areas under MCL 554.139(1)(a) because they are located within the complex, they
are constructed and maintained by the lessor, and they are relied on by tenants to
access their apartments and vehicles. In this case, the Court of Appeals adopted
this reasoning to conclude that parking lots also constitute common areas because
they are located within the complex, they are maintained by the lessor, and tenants
must necessarily walk on parking lots to access their vehicles. Allison, supra at
670.
We agree that a parking lot within a leased residential property fits within
the meaning of “common area” because it is accessed by two or more, or all, of the
tenants and the lessor retains general control. Among other things, the lessor
controls whether a parking lot is used by members of the public as well as by
7
tenants, the circumstances under which non-tenants can access the lot, the number
and size of vehicles that a tenant can park in the lot, the lot’s hours of operation,
the means of identification of those entitled to park in the lot, and whether and
how particular parking spaces will be allocated. Further, the lessor is responsible
for the maintenance and security of the lot. Thus, we believe that parking lots
within a leased residential property that are shared by two or more, or all, of the
tenants constitute “common areas” under MCL 554.139(1)(a).
B. LESSOR’S DUTY UNDER MCL 554.139(1)(a)
Because a parking lot within a leased residential property is a common area
under MCL 554.139(1)(a), the lessor effectively has a contractual duty to keep the
parking lot “fit for the use intended by the parties.” The next question concerns
whether this covenant encompasses the duty to keep the lot free from the natural
accumulation of snow and ice. The Court of Appeals held:
The intended use of a parking lot is to park cars and other
motor vehicles; however, in order to access their vehicles and
apartments, tenants must also necessarily walk on the parking lot. A
second intended use of a parking lot, therefore, is walking on it. A
parking lot covered with ice is not fit for this purpose. [Allison,
supra at 670-671.]
We agree that the intended use of a parking lot includes the parking of
vehicles. A parking lot is constructed for the primary purpose of storing vehicles
on the lot. “Fit” is defined as “adapted or suited; appropriate[.]” Random House
Webster’s College Dictionary (1997). Therefore, a lessor has a duty to keep a
parking lot adapted or suited for the parking of vehicles. A parking lot is generally
8
considered suitable for the parking of vehicles as long as the tenants are able to
park their vehicles in the lot and have reasonable access to their vehicles. A
lessor’s obligation 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. Fulfilling this obligation
would allow the lot to be used as the parties intended it to be used.
In this case, in construing the meaning of these terms in the contract,
neither of the parties has indicated that the intended use of the parking lot was
anything other than basic parking and reasonable access to such parking.
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. Under the facts
presented in this record, we believe 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. Accordingly,
plaintiff has not established that tenants were unable to use the parking lot for its
intended purpose, and his claim fails as a matter of law.
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
9
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.
We recognize that tenants must walk across a parking lot in order to access
their vehicles. However, plaintiff did not show that the condition of the parking
lot in this case precluded access to his vehicle. The Court of Appeals erred in
concluding that, under the facts presented, the parking lot in this case was unfit
simply because it was covered in snow and ice.4 Allison, supra at 670-671.
Further, we take issue with the suggestion of the Court of Appeals that a tenant
traversing a parking lot, for any reason, might be able to take advantage of the
covenant for fitness for the uses intended. A tenant using a common area for a
purpose other than that for which the area is intended is not protected by the
covenant for fitness, but would be afforded any protections provided by the
common law. The statute does not require any level of fitness beyond what is
necessary to allow tenants to use the parking lot as the parties intended. In
addition, should this point need clarification, a non-tenant could never recover
under the covenant for fitness because a lessor has no contractual relationship
4
The dissent concludes that “plaintiff has made a sufficient showing to
survive summary disposition under § 139(1)(a)” on the basis that “fitness for use
includes safety.” Post at 2-3. However, the dissent’s analysis focuses exclusively
on premises liability law, the subject of plaintiff’s first claim, which, as stated
earlier, is not before this Court. Perhaps most relevantly, we do not see walking
across one to two inches of snow and ice as being as harrowing an experience as
the dissent asserts.
10
with-- and, therefore, no duty under the statute to-- a non-tenant.5 Plaintiff has not
shown that the lot in this case was unfit for its intended use, and the Court of
Appeals erred in concluding otherwise.
C. LESSOR’S DUTY UNDER MCL 554.139(1)(b)
The final question concerns whether a lessor’s duty to repair under MCL
554.139(1)(b) extends to snow and ice accumulation in a parking lot. We must
distinguish the term “common areas” from the term “premises” if we are to give
meaning to all the words of this statute. The lessor’s duty under MCL
554.139(1)(a) applies to “the premises and all common areas,” while the lessor’s
duty under MCL 554.139(1)(b) applies only to “the premises.” We must “avoid a
construction that would render any part of the statute surplusage or nugatory.”
Wickens v Oakwood Healthcare Sys, 465 Mich 53, 60; 631 NW2d 686 (2001).
“Premises” is defined as “a tract of land including its buildings” or “a
building or part of a building together with its grounds or other appurtenances[.]”
Random House Webster’s College Dictionary (1997). Such a definition would
seem to include everything within the boundaries of the apartment complex,
including the common areas. However, a statute can give special meaning to a
5
The dissent disagrees, citing the Second Restatement of Torts, § 357,
which states that “‘[a] lessor of land is subject to liability for physical harm caused
to his lessee and others upon the land with consent of the lessee . . . .’” Post at 9.
Again, the dissent’s analysis would apply to premises liability law, under which a
non-tenant guest would be entitled to the protections afforded a licensee under
common-law principles. The dissent misapprehends what this case is about.
11
word apart from its everyday use. Under the doctrine of noscitur a sociis, a word
is also given meaning in the context of the words around it. Koontz, supra at 318.
In this statute, the Legislature specifically set the term “common areas”
apart from the term “premises” by applying the first covenant to both terms and
the second covenant only to “premises.” If we conclude that “premises” includes
“common areas,” then the phrase “and all common areas” would be entirely
superfluous. The only way to give meaning to the phrase “and all common areas”
in this context is to conclude that “premises” does not encompass “common areas”
and that the covenant to repair under MCL 554.139(1)(b) does not apply to
“common areas.”6
The exclusion of common areas from the covenant to repair imposed by the
statute does not necessarily mean that the lessor is free of any duty to repair
common areas, because these areas must still be kept “fit for the use intended by
the parties.” The Legislature elected to impose two different duties on the lessor,
one for “premises and all common areas” and one for only “premises,” and
differentiated those duties through its choice of language, one covenant requiring
6
Even if common areas were covered by the covenant to keep the premises
in reasonable repair, this covenant would not impose a duty on the lessor to keep
parking lots free from the natural accumulation of snow and ice. “Repair” as a
noun is defined as “the good condition resulting from continued maintenance and
repairing.” Random House Webster’s College Dictionary (1997). “Repairing”
involves “restor[ing] to a good or sound condition after decay or damage;
mend[ing].” Id. Therefore, MCL 554.139(1)(b) refers to keeping the premises in
a good condition as a result of restoring and mending damage to the property.
There is nothing within the definition of “repair” that would include keeping a
property free of snow and ice accumulation.
12
“fitness” and the other requiring “reasonable repair.” Because both covenants
imposed by the statute apply to premises, and only the covenant for fitness applies
to common areas, we can reasonably infer that the Legislature intended to place a
less onerous burden on the lessor with regard to common areas. Keeping common
areas fit for their intended use may well require a lessor to perform maintenance
and repairs to those areas, but may conceivably require repairs less extensive than
those required by the second covenant. For example, if the lessor has a duty to
repair a parking lot under MCL 554.139(1)(b), the lessor arguably may be required
to fill a small pothole in the parking lot, even if that pothole did not affect the
ability of the tenants to park in that lot. However, because the lessor does not have
such a duty with regard to parking lots because they are common areas, the lessor
would not necessarily be obligated to fill that pothole under the duties concerning
fitness in MCL 554.139(1)(a).
In Teufel, supra at 429 n 1, the Court of Appeals held:
Plaintiff also argues that the trial court erred when it failed to
address his argument that [the lessor] had a statutory duty under
MCL 554.139 to keep its premises and common areas in reasonable
repair and fit for their intended uses, which negates the defense of
open and obvious danger. Any error in the trial court’s failure to
address this argument is harmless. The plain meaning of “reasonable
repair” as used in MCL 554.139(1)(b) requires repair of a defect in
the premises. Accumulation of snow and ice is not a defect in the
premises. Thus, a lessor’s duty under MCL 554.139(1)(a) and (b) to
keep its premises in reasonable repair and fit for its intended use
does not extend to snow and ice removal.
This is an accurate assessment of the requirement of “reasonable repair” in MCL
554.139(1)(b). “Defect” is defined as “a fault or shortcoming; imperfection.”
13
Random House Webster’s College Dictionary (1997). Damage to the property
would constitute an imperfection in the property that would require mending.
Therefore, repairing a defect equates to keeping the premises in a good condition
as a result of restoring and mending damage to the property. The accumulation of
snow and ice does not constitute a defect in property, and, therefore, the lessor
would have no duty under MCL 554.139(1)(b) with regard to snow and ice, except
to the extent that such snow and ice caused damage to the property.
This conclusion can be analogized to the government’s duty to maintain
highways in reasonable repair under MCL 691.1402(1), the highway exception to
governmental immunity. In Nawrocki v Macomb Co Rd Comm, 463 Mich 143,
158; 615 NW2d 702 (2000), this Court held that the “highway exception waives
the absolute immunity of governmental units with regard to defective highways
under their jurisdiction.” To recover under MCL 691.1402(1), a plaintiff must
demonstrate that a defect in the highway was the proximate cause of the plaintiff’s
injury. Haliw v Sterling Hts, 464 Mich 297, 309 n 9; 627 NW2d 581 (2001). In
Haliw, this Court specifically excluded the accumulation of snow and ice from
consideration as a defect. Id. More recently, in MacLachlan v Capital Area
Transportation Auth, 474 Mich 1059 (2006), this Court held that an accumulation
of snow in the roadway did not constitute a “defect in the roadway rendering it
unsafe for public travel at all times.”
We hold that the lessor’s duty to repair under MCL 554.139(1)(b) does not
apply to common areas and, therefore, does not apply to parking lots. In addition,
14
MCL 554.139(1)(b) requires the lessor to repair defects in the premises, and the
accumulation of snow and ice is not a defect. A lessor has no duty under MCL
554.139(1)(b) with regard to the natural accumulation of snow and ice.
D. TEUFEL AS PRECEDENT
The Court of Appeals on reconsideration stated that the holding in Teufel,
supra at 429 n 1, was legally flawed for failing to distinguish, or even mention,
O’Donnell v Garasic, 259 Mich App 569; 676 NW2d 213 (2003), and for failing
to conduct a separate analysis of MCL 554.139(1)(a) and (b). Allison, supra at
668-669. The Court proceeded to observe that it was not bound to follow the
discussion of MCL 554.139(1)(a) and (b) in Teufel because, “[h]ad [the] Court in
Teufel intended to create a rule of law regarding the availability of the open and
obvious danger doctrine when a landlord has a statutory duty under MCL
554.139(1)(a) and (b), it would have done so in the body of the opinion rather than
in a footnote.” Id. at 669-670, citing Guerra v Garratt, 222 Mich App 285, 289-
292; 564 NW2d 121 (1997).
The Court’s reference to Guerra was misplaced. Guerra did not state that
language set forth in a footnote does not constitute binding precedent. Rather, in
Guerra, the Court of Appeals was attempting to interpret whether certain language
in Lemmerman v Fealk, 449 Mich 56, 77 n 15; 534 NW2d 695 (1995), was meant
to limit the retroactivity of the opinion’s general holding or to create an exception
to that holding. Guerra, supra at 291. The Court engaged in ordinary
interpretative analysis, examining the circumstances and the context in order to
15
properly give meaning to the language. The Court of Appeals concluded that,
given the fact that Lemmerman repeatedly set forth its general holding without
suggesting any exception and specifically made a statement incompatible with
such an exception, this Court would have placed any such exception to the general
holding, if it had been intended, in the body of the opinion. Id. at 291-292.
Therefore, the Court of Appeals determined that the footnote pertained to the
retroactivity of the holding, and did not create an exception to that holding. The
statement in Guerra regarding the Lemmerman footnote was merely an analysis of
the context of language within a footnote and not a holding that a discussion
within a footnote cannot constitute binding precedent.
The essential question is not whether the language in Teufel was contained
within a footnote, but whether it created a “rule of law” for the purposes of MCR
7.215(J)(1).7 A statement that is dictum does not constitute binding precedent
under MCR 7.215(J)(1). McNeil v Charlevoix Co, 275 Mich App 686, 702; 741
NW2d 27 (2007). “[O]biter dictum” is defined as “1. an incidental remark or
7
MCR 7.215 provides:
(J) Resolution of Conflicts in Court of Appeals Decisions.
(1) Precedential Effect of Published Decisions. A panel of the
Court of Appeals must follow the rule of law established by a prior
published decision of the Court of Appeals issued on or after
November 1, 1990, that has not been reversed or modified by the
Supreme Court, or by a special panel of the Court of Appeals as
provided in this rule.
16
opinion. 2. a judicial opinion in a matter related but not essential to a case.”
Random House Webster’s College Dictionary (1997).
In Teufel, the plaintiff slipped and fell on ice in the parking lot of his
apartment complex. Teufel, supra at 426. The Court of Appeals held that the trial
court properly granted summary disposition to the defendant apartment complex
on the basis of the “open and obvious” danger doctrine. Id. at 428-429. The
language in the Teufel footnote was not dictum; rather, the footnote addressed an
alternative argument raised by the plaintiff regarding the applicability of MCL
554.139 and was, therefore, necessary to the disposition of the case. Thus, the
language in the footnote constituted a rule of law, and the Court of Appeals was
obligated to follow this rule under MCR 7.215(J)(1).
The Court of Appeals’ concern that Teufel itself did not follow the
precedent of O’Donnell was without merit. In O’Donnell, supra at 581, the Court
of Appeals held that a defendant cannot use the “open and obvious” danger
doctrine to avoid liability when the defendant has a statutory duty to maintain the
premises in accordance with MCL 554.139(1)(a) and (b). However, the Teufel
footnote held that MCL 554.139(1)(a) and (b) do not apply to snow and ice
removal. Therefore, the “open and obvious” danger doctrine could avoid the
defendants’ liability in Teufel, and there was no need to refer to, nor was there any
inconsistency with, O’Donnell.
Language set forth in a footnote can constitute binding precedent if the
language creates a “rule of law” and is not merely dictum. Teufel, supra at 429 n
17
1, created a rule of law that the Court of Appeals was bound to follow. MCR
7.215(J)(1). However, to the extent that Teufel held that a lessor’s duty to
maintain premises and common areas “fit for the use intended” under MCL
554.139(1)(a) can never include snow and ice removal, we overrule Teufel. There
are conceivable circumstances in which a lessor may have a duty to remove snow
and ice under MCL 554.139(1)(a), such as when the accumulation is so substantial
that tenants cannot park or access their vehicles in a parking lot. As we have
already observed, such circumstances were not present in this case. The Court of
Appeals erred in reversing the trial court’s order granting summary disposition in
favor of defendants under the “open and obvious” danger doctrine.
IV. CONCLUSION
We hold that: (1) parking lots in leased residential areas constitute
“common areas” under MCL 554.139(1)(a); (2) the natural accumulation of snow
and ice is subject to the lessor’s duty established in MCL 554.139(1)(a), but that
plaintiff has not shown the duty was violated here because the parking lot was
apparently “fit for the use intended by the parties”; and (3) the natural
accumulation of snow and ice is not subject to the lessor’s duty established in
MCL 554.139(1)(b). Moreover, we believe that the Court of Appeals acted
contrary to MCR 7.215(J)(1) in failing to follow the precedent set forth in Teufel
and erred in holding that language contained in a footnote cannot be binding
precedent. However, we overrule Teufel to the extent that it is inconsistent with
our holding in this case. Accordingly, we reverse the Court of Appeals judgment
18
and reinstate the trial court’s order granting summary disposition in favor of
defendants.
Stephen J. Markman
Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
19
STATE OF MICHIGAN
SUPREME COURT
IRVING ALLISON,
Plaintiff-Appellee,
v No. 133771
AEW CAPITAL MANAGEMENT, L.L.P.,
d/b/a SUTTON PLACE APARTMENTS,
Defendant,
and
VILLAGE GREEN MANAGEMENT
COMPANY and BFMSIT, II,
Defendants-Appellants.
CORRIGAN, J. (concurring).
I concur in the result and virtually all of the reasoning of the majority
opinion. In particular, I agree that (1) sidewalks and parking lots in leased
residential areas are “common areas” under MCL 554.139(1)(a); (2) the natural
accumulation of ice and snow is not subject to the lessor’s duty under MCL
554.139(1)(b) to “keep the premises in reasonable repair”; and (3) the Court of
Appeals erred in concluding that language in the footnote in Teufel v Watkins, 267
Mich App 425, 429 n 1; 705 NW2d 164 (2005), could not constitute binding
precedent.
My sole area of disagreement with the majority concerns its analysis of
whether a lessor’s duty to keep the premises and common areas “fit for the use
intended by the parties,” MCL 554.139(1)(a), obligates the lessor to remove
natural accumulations of snow and ice. The majority correctly observes that the
parking lot here was “fit for the use intended by the parties” where only one to two
inches of snow had accumulated. Yet the majority goes on to state that in “more
exigent circumstances” a natural accumulation of snow or ice could trigger the
statutory duty. Not only is this conclusion unnecessary to the disposition of this
case, but I believe it is founded on an erroneous analysis.
MCL 554.139(1) provides in part:
In every lease or license of residential premises, the lessor or
licensor covenants:
(a) That the premises and all common areas are fit for the use
intended by the parties.
The majority resorts to a lay dictionary to define “fit” as “adapted or suited;
appropriate[.]” Ante at 8, citing Random House Webster’s College Dictionary
(1997). The majority then concludes that in some unspecified “exigent
circumstances,” ante at 9, a natural accumulation of ice or snow could render the
parking lot unfit for its intended use.
The majority’s analysis hinges on its implicit view that the duty to keep the
parking lot itself fit extends to transient conditions such as natural accumulations
of snow or ice. This assumption overlooks a fair reading of the statutory text
limiting the duty of fitness to the physical structure of the premises and common
2
areas.1 My analysis of the statutory covenant and its legal background suggests
that it is limited to structural defects.
While a court may use a lay dictionary to define common words or phrases
that lack a unique legal meaning, MCL 8.3a; People v Thompson, 477 Mich 146,
151-152; 730 NW2d 708 (2007), I would not assume that the terms used in MCL
554.139 lack an acquired legal meaning. Indeed, it appears that the statute
codifies the implied warranty of habitability, and that this warranty does not
protect against transient conditions such as ice or snow.
The duties set forth in MCL 554.139 are directed at ensuring that the
premises are habitable. The statute was enacted “‘to establish as a matter of law
the landlord’s promissory duty to make the premises fit for habitation at the time
of taking possession and throughout the term of period of tenancy.’” Rome v
Walker, 38 Mich App 458, 462 n 3; 196 NW2d 850 (1972), quoting Schier,
Draftsman: Formulation of Policy, 2 Prospectus, A Journal of Law Reform 227,
233 (1968) (emphasis added).
“At common law, a landlord generally had no duty to provide a habitable
rental property.” 49 Am Jur 2d, Landlord and Tenant, § 447, p 455. See also
Fisher v Thirkell, 21 Mich 1, 6-7 (1870). That traditional rule was abrogated as a
1
Notably, we have interpreted the highway exception to the governmental
tort liability act, MCL 691.1402, in precisely this manner. See Nawrocki v
Macomb Co Rd Comm, 463 Mich 143, 158; 615 NW2d 702 (2000); Haliw v
Sterling Hts, 464 Mich 297; 627 NW2d 581 (2001) (holding that a natural
accumulation of ice on a sidewalk did not implicate the highway exception
because the plaintiff’s injury was not caused by a defect in the sidewalk itself).
3
majority of jurisdictions adopted, either by common law or by express statutory
provision, an implied warranty of habitability. 49 Am Jur 2d, Landlord and
Tenant, § 447, p 455. 2
“An implied warranty of habitability requires that a dwelling be fit for its
intended use; that is, it should be habitable and fit for living.” 52 CJS, Landlord
& Tenant, § 687, p 607 (emphasis added). The warranty is breached where a
“defect” exists that is “of a nature and kind which will prevent the use of the
dwelling for its intended purpose to provide premises fit for habitation by its
dwellers.” 49 Am Jur 2d, Landlord and Tenant, § 450, p 459 (emphasis added).
This implied warranty extends to common areas. See id., § 447, p 455. A
reasonable inference arises from the language of MCL 554.139(1)(a) (“fit for the
use intended by the parties”) that it codifies the implied warranty of habitability.3
The warranty of habitability extends only to “significant, structural defects”
that “render the premises uninhabitable in the eyes of a reasonable person.” 52
CJS, Landlord & Tenant, § 687, p 607. The natural accumulation of ice or snow is
not such a defect. Id. at 607 n 12; McAllister v Boston Housing Auth, 429 Mass
2
The recognition of this warranty arose in light of “the realities of the
modern urban landlord-tenant relationship.” 52 CJS, Landlord & Tenant, § 687, p
606.
3
See also Browder, The taming of a duty – the tort liability of landlords, 81
Mich L R 99, 112 n 55 (1982) (listing MCL 554.139 as an example of legislation
that “has consisted of the enactment or amendment of landlord and tenant codes
and laws, almost all of which have created a new duty in landlords similar in
scope to the implied warranty of habitability declared by some courts”) (emphasis
added).
4
300, 306; 708 NE2d 95 (1999). The warranty extends only to “significant defects
in the property itself.” McAllister, supra at 305.4
Therefore, in light of the legal background of the implied warranty of
habitability and the codification of that warranty in MCL 554.139, I question the
majority’s conclusion that the statutory duty applies to transitory conditions such
as snow and ice accumulations. I would hold that the duty extends only to
significant, structural defects that render the parking lot itself unfit for its intended
use.
In any event, the majority’s analysis of this issue is unnecessary to the
disposition of this case. As the majority correctly concludes, the one to two inches
of accumulated precipitation in this case did not render the parking lot unfit for its
intended use. We thus need not speculate regarding whether a greater
accumulation would, in some unspecified “exigent circumstances,” trigger the
statutory duty.
4
In Gossman v Lambrecht, 54 Mich App 641, 645-646; 221 NW2d 424
(1974), our Court of Appeals recognized that “Michigan, although not explicitly,
has followed the Massachusetts rule. Under that view a landlord, absent a
contract, has no duty to his tenant to remove from common passageways any
natural accumulation of snow and ice.” The panel noted that “[a]dherents of the
Massachusetts rule believe it better suited to northern climates where slippery
conditions from ice and snow are natural, frequent and without fault of the
landowner, unless he increases the hazard.” Id. at 646. Although MCL 554.139
was not at issue in that case, the Gossman panel held that a section of the Housing
Law, MCL 125.474, providing for the cleanliness of dwellings, required no more
of a landowner than is required by the common law regarding the removal of snow
and ice. Id. at 649.
5
For these reasons, I cannot join the majority’s analysis in full. In all other
respects, I concur in the reasoning and conclusions set forth in the majority
opinion.
Maura D. Corrigan
6
STATE OF MICHIGAN
SUPREME COURT
IRVING ALLISON,
Plaintiff-Appellee,
v No. 133771
AEW CAPITAL MANAGEMENT, L.L.P.,
d/b/a SUTTON PLACE APARTMENTS,
Defendant,
and
VILLAGE GREEN MANAGEMENT
COMPANY and BFMSIT, II,
Defendants-Appellants.
CAVANAGH, J. (dissenting).
I agree with the majority’s conclusions under MCL 554.139(1)(a) that a
parking lot is a common area, the intended use of a parking lot includes walking
to and from parked vehicles, accumulations of ice and snow may be subject to a
landlord’s duties under § 139(1)(a), and the “open and obvious danger” doctrine
is inapplicable to the duty created by the statute.1 However, I disagree with the
majority’s application of § 139(1)(a) in this case. While I tend to agree with the
majority that one or two inches of snow would rarely make a parking lot unfit for
1
I also agree that placement in a footnote does not, of itself, affect the
language’s precedential significance.
its intended use under § 139(1)(a), I cannot categorically conclude that an
accumulation of one or two inches of snow or ice can never make a parking lot
unfit. Specifically, I cannot conclude that the parking lot in this case was fit for
its use on the facts presented. Thus, I respectfully dissent.
I believe that plaintiff has made a sufficient showing to survive summary
disposition under § 139(1)(a). Section 139(1) provides that, in every lease or
license of residential premises, a landlord has a duty to ensure that premises and
common areas are fit for use, to keep the premises in reasonable repair, and to
comply with health and safety laws. Review of a claim under § 139(1) requires a
determination of where the claimed injury took place. If the injury occurred in a
common area, § 139(1)(a) requires review of the parties’ intended use for the
common area and the area’s fitness for that use.
In this case, plaintiff was defendant’s tenant and suffered injury in
defendant’s apartment complex parking lot. The parking lot was a common area.
Its intended use included parking vehicles, which includes walking to and from
the vehicle. Plaintiff was walking to his vehicle when he slipped and fell;
therefore, he was using the parking lot as the parties intended when he was
injured.2 So the next question is whether the parking lot was fit for its intended
use when plaintiff fell.
2
The majority states that “[a] tenant using a common area for a purpose
other than that for which the area is intended is not protected by the covenant for
fitness.” Ante at 10. I disagree. The statute does not require that the injury occur
(. . . continued)
2
The concept of fitness for use includes safety. The Second Restatement of
Torts states:
[A]n invitee enters upon an implied representation or
assurance that the land has been prepared and made ready and safe
for his reception. He is therefore entitled to expect that the possessor
will exercise reasonable care to make the land safe for his entry, or
for his use for the purposes of the invitation. [2 Restatement Torts,
2d, § 343, comment b, p 216.]
Specifically in landlord and tenant law, this Court has stated that “a landlord may
be held liable for an unreasonable risk of harm caused by a dangerous condition
in the areas of common use retained in his control . . . .” Williams v Cunningham
Drug Stores, Inc, 429 Mich 495, 499; 418 NW2d 381 (1988). The Williams
Court reasoned:
The rationale behind imposing a duty to protect in these
special relationships is based on control. In each situation one
person entrusts himself to the control and protection of another, with
a consequent loss of control to protect himself. The duty to protect
is imposed upon the person in control because he is best able to
provide a place of safety.” [Id. (emphasis added).]
So § 139(1)(a), requiring fitness, imposes a duty on the landlord to ensure that
common areas are safe for their intended use. Whether a common area is
(continued . . .)
while the common area is being used as intended. It requires the common area to
be fit for the use intended. Thus, if the area is unfit for its intended use, an injured
plaintiff may seek recovery for damages regardless of the use that plaintiff was
making of the area when the injury occurred.
3
sufficiently safe to be fit for its intended purpose depends on the condition of the
area in question.3
There appears to be some confusion about the condition of defendant’s
parking lot at the time of plaintiff’s injury. The Court of Appeals described the
condition as “[a] parking lot covered with ice,”4 while the majority describes the
condition as a lot with “one to two inches of accumulated snow.” Ante at 2. A
two-inch sheet of ice ordinarily presents a very different degree of danger from
that ordinarily presented by two inches of snow. Typically, the danger associated
with snow becomes greater as the snow becomes deeper. But ice may be
dangerous at almost any thickness.
Plaintiff testified that when he left his apartment for work on the morning
of March 13, 2003, the entire area was covered with “maybe an inch or two” of
snow that had accumulated overnight. He stepped down the two stairs of his
porch, walked down the sidewalk to the parking lot, and then began walking
across the parking lot toward his car. After walking about 20 feet across the
3
The trial court did not inquire into the condition of the common area
because it applied improper legal standards. The trial court believed that MCL
554.139(1) did not apply to this case and the open and obvious danger doctrine did
apply. Thus, the trial court only needed to know two facts: that plaintiff fell on ice
or snow and the ice or snow was open and obvious. Plaintiff attempted to present
more facts regarding the condition of the common area at the hearing on
defendant’s motion for summary disposition, but the trial court rebuffed the effort.
Inquiry into the condition of the common area was irrelevant to the legal standards
applied by the trial court.
4
Allison v AEW Capital Mgt, LLP (On Reconsideration), 274 Mich App
663, 671; 736 NW2d 307 (2007).
4
parking lot toward his car, plaintiff slipped and fell. In deposition testimony,
plaintiff described how he fell: “I just take the step and then my foot falls or slips
out from under me, and then I fell and then I—that’s basically it. My foot
slipped. It was the ice that I slipped on.” When asked how he knew that he
slipped on “ice versus snow,” plaintiff stated: “Well, because the way my foot
slipped. It slipped and my leg just went from under me and then when I fell, I
saw where my foot slipped, I saw ice.” So, according to the only evidence
available to this Court, plaintiff slipped on ice in defendant’s parking lot. I
believe that a parking lot covered with ice is not fit for its intended use because it
is not safe for walking.
The majority states that “[m]ere inconvenience” does not make a common
area unfit for its intended use. Ante at 10. But the ice-covered surface of
defendant’s parking lot presented a much greater danger to plaintiff than mere
inconvenience. Plaintiff’s fall on ice in defendant’s parking lot caused severe
injury. Plaintiff’s fractured ankle required extensive surgery. Plaintiff was not
able to return to work for three months following surgery. In deposition
testimony two years after the injury, plaintiff stated, “I always have pain and
restrictions . . . I have pain in my ankle every day.” Further, plaintiff is subject to
ankle “re-sprains” three or four times a week. I would not call the condition
plaintiff faced a mere inconvenience. And I would not call a common area that
presented such a danger fit for its intended use.
5
The majority states that the parking lot was fit for its intended use because
“tenants were able to enter and exit the parking lot, to park their vehicles therein,
and to access those vehicles.” Ante at 9. I am unaware of any evidence to
support this conclusion. The only fact established on this point is that plaintiff
was not able to access his vehicle without injury. The majority concludes that the
parking lot was fit for its intended use when plaintiff fell because “plaintiff did
not show that the condition of the parking lot in this case precluded access to his
vehicle.” Ante at 10. But, as mentioned, access to vehicles must be safe in order
to be fit. Plaintiff could access his vehicle only by risking serious injury.
A landlord’s duty to provide safe common areas does not preclude a
tenant’s duty to take steps within his control to keep himself safe. The trial court
intimated as much when it opined on the proper method of walking on ice: “I
suggest that—I call it the Michigan shuffle, but you don’t necessarily walk; you
do the skating.” Contrary to the apparent perception of the trial court, plaintiff
testified in deposition that he took every reasonable precaution: he was wearing
boots specifically made for walking on snow, he watched where he was going,
and he proceeded with great care when crossing the parking lot. Despite his best
efforts to attend to his safety by means within his control, he was injured. At this
pretrial stage, I believe that plaintiff has raised a genuine issue of fact concerning
whether the parking lot was unfit. Thus, summary disposition is inappropriate.
If a plaintiff is able to show that a common area is not fit for its intended
use, the reasonableness of the landlord’s actions to remedy the unfit condition
6
should also be assessed. “[A] contract to keep the premises in safe condition
subjects the lessor to liability only if he does not exercise reasonable care after he
has had notice of the need of repairs. In any case his obligation is only one of
reasonable care.” 2 Restatement Torts, 2d, § 357, comment d, pp 242-243. In
this case, if the parking lot is found unfit, there is a valid question whether
defendant exercised reasonable care to remedy the unfit condition. I would
remand the case to the trial court for further inquiry into these matters under the
proper legal standards.
I would also state a clearer standard for a landlord’s liability regarding ice
and snow than the majority provides to guide courts facing similar claims in the
future. Because fitness for use requires a landlord to take measures to provide
safe common areas, and because a landlord’s duty requires exercise of reasonable
care, I would apply the standard of Quinlivan v Great Atlantic & Pacific Tea Co,
Inc, 395 Mich 244, 261; 235 NW2d 732 (1975): the duty owed by a landlord to a
tenant regarding ice and snow requires that “reasonable measures be taken within
a reasonable time after an accumulation of ice and snow to diminish the hazard of
injury to the [tenant].” This standard arose in tort law, but it applies to fitness for
use as well. It is faithful to the statute and readily applicable for courts in the
future.
I generally agree with the majority’s analysis (if not its application) of
§ 139(1)(a), but I believe the majority has unnecessarily reached several issues.
These matters are not necessary to the majority’s disposition of the case; thus,
7
they are dicta. Nonetheless, I disagree with several of these extraneous
conclusions. First, because the majority holds that defendant is entitled to
summary disposition, there is no need to determine plaintiff’s potential remedy.
However, I would hold that a plaintiff who proves a claim under MCL
554.139(1) is entitled to full damages for the injury. The Second Restatement of
Torts, § 357, states:
A lessor of land is subject to liability for physical harm caused to
his lessee and others upon the land with the consent of the lessee or
his sublessee by a condition of disrepair existing before or arising
after the lessee has taken possession if
(a) the lessor, as such, has contracted by a covenant in the lease or
otherwise to keep the land in repair, and
(b) the disrepair creates an unreasonable risk to persons upon the
land which the performance of the lessor’s agreement would have
prevented, and
(c) the lessor fails to exercise reasonable care to perform his
contract. [Id. at 241.]
The comments to that section state that “the duty arises out of the
existence of the contract to repair.” Id., comment d, p 242. The comments
further state that “[t]he lessor’s duty under the rule stated in this Section is not
merely contractual, although it is founded upon a contract. It is a tort duty.” Id.,
§ 357, comment c, p 242. There is no reason this liability should not apply under
MCL 554.139(1). Indeed, it should apply because the statute’s very purpose is to
provide safety in areas outside the tenant’s control. Williams, supra at 499 (“duty
to protect is imposed upon the person in control because he is best able to provide
a place of safety”).
8
Also, because this case involves a tenant only, there is no reason to
address a landlord’s liability to nontenants under § 139(1). However, I believe
the majority incorrectly asserts that a nontenant could never recover under the
covenant for fitness because a lessor has no contractual relationship with a
nontenant. The Second Restatement of Torts, § 357, states that “[a] lessor of land
is subject to liability for physical harm caused to his lessee and others upon the
land with consent of the lessee . . . .” Id. at 241 (emphasis added). Additionally, I
believe the intended use of a parking lot in an apartment complex will generally
include, at minimum, parking (and walking) for a tenant’s guests. An apartment
is a tenant’s home. It is likely that both parties to an apartment lease intend the
parking lot to be used by guests as well as tenants.
Finally, I believe that MCL 554.139(1)(b) may apply to common areas.
Section 139(1)(b) contains two independent covenants. The first is “[t]o keep the
premises in reasonable repair during the term of the lease.” The second is “to
comply with the applicable health and safety laws of the state and of the local
government.” The second is independent of the first and is not confined to the
“premises.” Therefore, a landlord may be liable for an injury sustained in a
common area due to a condition that does not comply with health and safety
laws. I would direct the trial court to examine whether plaintiff has a claim under
the second covenant of § 139(1)(b).
The trial court in this case found that § 139(1) did not apply and the open
and obvious danger doctrine did apply. The majority determines that § 139(1)
9
applies and the open and obvious danger doctrine does not. I agree with that
determination, but I would affirm the result of the Court of Appeals and remand
this case to the trial court for further proceedings under the proper legal
standards.
Michael F. Cavanagh
Marilyn Kelly
10