Archive for September, 2017

Statutory Duty of Landlord to Tenant – Snow and Ice

Written by Joseph Collison

MCL 554.139 provides a specific protection to lessees and licensees of residential property in addition to any protections provided by the common law.” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008). MCL 554.139 states, in relevant part:

(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.
Parking lots and sidewalks are “common areas” within the meaning of the statute. Allison, 481 Mich at 428; Benton v Dart Props, Inc, 270 Mich App 437, 443-444; 715 NW2d 335 (2006). A parking lot’s intended purpose is satisfied “as long as the tenants are able to park their vehicles in the lot and have reasonable access to their vehicles.” Allison, 481 Mich at 429. “[T]he intended use of a sidewalk is walking on it.” Benton, 270 Mich App at 444.

Generally speaking, if snow or ice in a parking lot or on a sidewalk (common areas) are avoidable, then the areas are “fit” for the use intended.

Premises Liability – Slip and Fall on Snow or Ice

Written by Joseph Collison

Case: Lemmerhart v. Marciniak
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Boonstra and Swartzle; Concurrence – Ronayne Krause

“[A]bsent special circumstances, Michigan courts have generally held that the hazards presented by snow, snow-covered ice, and observable ice are open and obvious and do not impose a duty on the premises possessor to warn of or remove the hazard.” Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 481; 760 NW2d 287 (2008). Moreover, “the presence of wintery weather conditions and of ice on the ground elsewhere on the premises render[s] the risk of [ice] ‘open and obvious such that a reasonably prudent person would foresee the danger’ . . . .” Ragnoli v North Oakland-North Macomb Imaging, Inc, 500 Mich 967, 967 (2017).

Lay Witness Opinion Testimony (Cause of Accident)

Written by Joseph Collison

Lay opinion testimony is permitted by MRE 701 as follows:

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences, including how an accident occurred, is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue.

Courts have liberally applied MRE 701 to enable the trier of fact to develop a clearer understanding of the facts. People v Oliver, 170 Mich App 38, 50; 427 NW2d 898 (1988), mod on other grounds 433 Mich 862 (1989).

Voiding an Insurance Policy Based on Fraud (PIP)

Written by Joseph Collison

Case: Spencer v. State Farm Mut. Auto. Ins. Co.
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – O’Brien, Jansen, and Murray

The elements of fraud required to void PIP coverage in an automobile policy are:

(1) the misrepresentation was material, (2) that it was false, (3) that the insured knew that it was false at the time it was made or that it was made recklessly, without any knowledge of its truth, and (4) that the insured made the material misrepresentation with the intention that the insurer would act upon it. A statement is material if it is reasonably relevant to the insurer’s investigation of a claim.” [Bahri v IDS Property Cas Ins Co, 308 Mich App 420, 424-425; 864 NW2d 609 (2014), quoting Mina v Gen Star Indemnity Co, 218 Mich App 678, 686; 555 NW2d 1 (1996), rev’d in part on other grounds 455 Mich 866 (1997).]

Landlord/Tenant – Duty of Care – Common Law

Written by Joseph Collison

Case: Aguillon v. Fernandez
Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam – Markey and Meter; Concurring in the result only – Murphy

A landlord owes a duty to exercise reasonable care to protect his tenant “from an unreasonable risk of harm caused by a dangerous condition on the land,” Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001), this duty does not extend to “dangers [that] are known to the [tenant] or are so obvious that the [tenant] might reasonably be expected to discover them, Riddle v McLouth Steel Products Corp, 440 Mich 85, 96; 485 NW2d 676 (1992).

A one-inch difference between the living room and kitchen floors was an open and obvious condition. Further, the kitchen threshold did not present “special aspects” to impose liability despite its being open and obvious because the condition was not “effectively unavoidable,” leading to a “uniquely high likelihood of harm,” or impose “an unreasonably high risk of severe harm.” Lugo, 464 Mich at 518-519.