Although Michigan’s winter of 2016-2017 has been relatively mild so far, this is usually the season when attorneys see an increase in slip and fall accident claims due to snow and ice. However, Michigan case law that developed over the past few years makes it increasingly clear that individuals are generally responsible for their safety as pedestrians, and it is increasingly difficult to pursue damages from other parties that maintain areas across which pedestrians travel.
Of particular note for condominium co-owners is Francescutti v. Fox Chase Condo Association, 312 Mich.App. 640 (2015), where the Michigan Court of Appeals rejected an injured co-owner’s claim that the relationship between the Association and the co-owner was a lessor/lessee relationship, which carries a duty under a Michigan state statute (MCL 554.139) to maintain the property in reasonable repair. Central to the argument was the plaintiff’s reference to the fact that co-owners are considered “tenants in common” with respect to the common elements, where the accident occurred due to slippery ice. However, the court was not impressed with this attempt at equating this term with the definition of a tenant in a lessor/lessee relationship, and the court cheekily referred to the plaintiff, who is a magician, as having attempted “to employ a semantic sleight of hand”! This Court of Appeals didn’t mind including a bit of humor in its ruling.
Of course, this does not mean an association can ignore its responsibility to clear snow and ice from the common elements, as co-owners are not the only ones who access a condominium development. In premises liability, Michigan law recognizes property owners’ duties at three different levels based on whether someone may be considered an “invitee”, “licensee”, or “trespasser”. However, with respect to snow and ice, these duties are further tempered by two cases. First, the “open and obvious” doctrine was established by Lugo v. Ameritech Corp, Inc., 464 Mich 512, 517; 629 NW2d 384 (2001). In a nutshell, this means that if the danger is reasonably open and obvious, the pedestrian takes on the entire risk of trying to get past the danger. The Michigan Supreme Court did describe some narrow possible exceptions to this doctrine in its decision, however, and it should be noted that appellate courts have in fact applied those exceptions to their decisions from time to time (see, for example, Lymon v. Freeland et al. 314 Mich.App. 746; 887 N.W.2d 456 (2016)). Next, in 2012, the Michigan Supreme Court confirmed that the open and obvious doctrine applies to snow and ice by its decision in Hoffner v. Lanctoe 492 Mich. 450; 821 N.W.2d 88 (2012).
Even though case law has effectively outlined narrow situations in which an association may be found responsible, the bottom line is that association boards need to provide for proper snow and ice removal. The association’s contract with its snow removal company should be carefully examined by association legal counsel to ensure proper insurance is required and to ensure the liability provisions provide the association proper indemnification, which will minimize the possibility that the association will be held responsible for a slip and fall accident due to snow and ice.
Also of note is Michigan’s new law limiting municipalities’ liability for slip and fall accidents which applies the open and obvious standard. So again, it will be increasingly difficult to hold others responsible for your slip and fall accident – be careful out there!
By Mark Petrie, Legal Assistant, The Meisner Law Group