Two recent Michigan Court of Appeals decisions remind us that apartment owners owe a duty under MCLA 554.139(a) to keep the premises fit for their intended use and in reasonable repair and that the “open and obvious” defense does not mitigate that duty.
In Martin v. Milham Meadows I Limited Partnership, (Mich App No. 328240, July 19, 2016, unpublished) the tenant slipped down the basement stairs after complaining at least once in writing before the accident that paralyzed him. The trial court granted a motion to dismiss because (1) the slickly painted stairs were open and obvious, and (2) the landlord lacked notice given the length of time between the original notice and the accident. The appeals court reversed, ruling that the open and obvious defense does not apply to the statutory duty, and that “while the landlord is not an insurer of a stairway’s safety, a landlord is not immune from liability under MCL 554.139(1)(a) merely because a tenant has safely traversed an unreasonably slippery stairway on multiple occasions.” As the landlord had actual notice of the defect, there could be liability under the statute.
In Schuster v. River Oaks Garden Apartments, LLC, (Mich App No. 328797, July 21, 2016, unpublished) the tenant slipped on an ice-covered sidewalk leading to her mailbox. The appeals court again confirmed that the open and obvious doctrine does not apply to cases claiming a breach of the statutory duty. Thus, a landlord owes a statutory duty to its tenants to keep the premises fit for their intended use, and the open and obvious doctrine cannot be used as a sure-fire escape hatch from liability in slip and fall incidents.
Please E-mail Phillip Neuman or Mark Frankel for more information regarding landlord tenant issues or for any other questions regarding real estate law.