Legal Update: Slip and falls on the condominium premises and the Open and Obvious Docturine
The Michigan Community Association Law Blog
by Joe Wloszek
18 April 2017
A few years ago, I wrote an article titled “Legal Update: Slip and Fall
on the Condominium Premises: Does the Condominium Owe a Statutory Duty
to Its Co-owners?” The article centered around a 2015 published
decision by the Michigan Court of Appeals in Francescutti v Fox Chase
Condominium Association, 312 Mich App 640; 886 NW2d 801 (2015), which
held that a co-owner who slip and fell on the common elements and
suffered injuries to his hand and wrist could not recover from his
Association or its property manager under a breach of contract or
negligence theory.
On March 14, 2017, the Michigan Court of Appeals analyzed a similar
case to Francescutti. In Zimmer v Harbour Cove on the Lake
Condominium Community, et al, Unpublished Per Curiam Decision of the
Michigan Court of Appeals, March 14, 2017 (No. 331545), Nick Zimmer
visited a friend’s condominium and Mr. Zimmer slipped and fell on the
condominium’s sidewalk breaking his femur. Mr. Zimmer sued the
Association, its property manager and the snow removal company for his
injuries.
The defendants argued that Zimmer’s claims for negligence, premises
liability and nuisance all sounded in premises liability and that such
claims were barred by the Open and Obvious Doctrine. In essence, the
defendants argued that:
1.)
it was winter in Michigan,
2.)
it was cold,
3.)
there was snow on the ground and
4.)
there was snow where Zimmer fell.
Previously, the Michigan Supreme Court held that open and obvious
dangers are not recoverable absent ‘special aspects’ of the condition
to justify imposing liability on a defendant. See Lugo v
Ameritech Corp, 464 Mich 512 (2001). In support of his claim that
there were “special aspects” of the icy condition, Zimmer stated that
the downspouts were negligently placed in such a way for ice to develop
over the sidewalk where he fell and that he fell on “black ice” that
was not covered by snow.
In its analysis, the Michigan Court of Appeals stated that a danger is
considered open and obvious “if, under an objective standard, it is
reasonable to expect that an average person with ordinary intelligence
would have discovered it upon casual inspection.” (citation omitted).
If the defendants could prove that the danger was open and obvious,
then Zimmer would not be able to recover for his damages. Ultimately,
the Michigan Court of Appeals held that Zimmer’s injury was the result
of an avoidable open and obvious danger and there was no evidence of a
special aspect to the icy condition that would justify holding either
the Association or its property manager liability under a premises
liability theory. Thus, the location of the downspouts did not justify
a “special aspect” of the icy condition because snow and ice are
generally considered open and obvious conditions. Moreover, the “black
ice” did not justify a “special aspect” where the presence of other
indicia of a potentially hazardous condition, including wintery
conditions, caused the “black ice” to be considered open and obvious.
Therefore, the Court of Appeals upheld the trial court’s dismissal of the entire case against the defendants.
Conclusion
The Zimmer case is additional support of the decision rendered in
Francescutti a few years earlier. Simply, if a condition is open and
obvious on the common elements, the Association, its property manager
and the snow removal company may avoid liability in Michigan. These
decisions are important not only for associations, property managers
and snow removal companies, but also for the insurance companies with
policies for the associations, property managers and snow removal
companies dealing with these situations as well.
Joe Wloszek is an attorney with the
law firm of Cummings, McClorey, Davis & Acho, P.L.C. where he
focuses his practice on dispute avoidance, condominium law, commercial
litigation, commercial real estate, large contractual disputes, and
title litigation. He has extensive litigation and trial experience in
state and federal courts involving commercial litigation issues and
real estate matters. He can be reached at (734) 261-2400 or
jwloszek@cmda-law.com.