Two more recent unpublished Michigan appellate court decisions have been finalized which provide further examples where individual condominium co-owners and their invitees have been held to a high level of responsibility to ensure their personal safety when traversing the condominium’s common elements, even in the case of “black ice”. Zimmer v. Harbour Cove on the Lake Condominium Community, et al. (2017 WL 993218); Kalosis v. Woods of Livonia Association, et al. (2017 WL 1034430)
Michigan slip-and-fall cases with respect to premises liability are evaluated based on the “open and obvious” doctrine. Generally, if a hazard is reasonably observable or can be expected, you can’t hold the owner of the premises liable for your injury. The plaintiffs in both of these recent actions contended the black ice was not “open and obvious” due to the very nature of black ice, being invisible. However, the “open and obvious” doctrine was nevertheless applied by the courts in both cases because the generally cold, snowy weather conditions should lead a reasonable person to realize that the existence of black ice is possible and therefore take extra care when walking. In Kalosis, the co-owner plaintiff testified to observing the cold weather and even putting on special non-skid shoes prior to going outside, but he also did not inspect the area in front of his car door prior to attempting to get inside, which is when he fell on the ice.
In both cases, the plaintiffs also pursued claims against the association’s contractors, such as association management, the snow/ice removal contractors, and contractors that installed gutter systems. But those claims failed as well because the plaintiffs either failed to show that the contractors owed any duty to the plaintiff under their contracts and/or breached a separate and distinct common law duty of care. In Kalosis, the court noted that the latter may have applied if the contractors created a hazard, but that is not the case with respect to ice that forms as a result of weather conditions.
Also of note in Zimmer is the court’s finding that while the snow removal contractor did have a common law duty of care to Zimmer as an invitee to the condominium, the plaintiff nevertheless failed to establish an issue of material fact as to whether the contractor’s performance of “snow removal services were contrary to typical snow removal practices and, thus, did not constitute ‘ordinary care.’”
As we’ve stated before, even if it’s difficult to pursue slip-and-fall claims against condominiums and their service providers under Michigan case law, that doesn’t mean that you should assume you will never be held responsible. Be sure to take reasonable care of the common elements with respect to snow and ice removal, and be especially careful when you are walking across the common elements yourself.
You can find an additional prior post on a slip-and-fall case here.
By Mark Petrie, Legal Assistant