Opinion
No. 348430
05-14-2020
SYDNEY ROOKS, Plaintiff-Appellee, v. SHERIDAN #1 APARTMENTS, LLC and P&B INVESTMENTS, INC., Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 17-013987-NO Before: K. F. KELLY, P.J., and BORRELLO and BOONSTRA, JJ. PER CURIAM.
Defendants appeal by leave granted the trial court's order granting in part and denying in part their motion for summary disposition. We reverse the portion of the trial court's order denying defendants' motion and remand for entry of an order granting summary disposition in favor of defendants in full.
See Rooks v Sheridan #1 Apts, LLC, unpublished order of the Michigan Court of Appeals, entered June 20, 2019 (Docket No. 348430). This order also granted defendants' motion to stay the trial court proceedings pending the resolution of this appeal.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Defendant Sheridan #1 Apartments, LLC owns an apartment building called Sheridan Apartments. At the time of the incident giving rise to this case, defendant P&B Investments (P&B) managed the property. From 2013 until June 2017, plaintiff was employed by P&B as a leasing agent and "on-site manager." Plaintiff was compensated with a salary and a rent-free apartment in Sheridan Apartments. Plaintiff lived in a basement apartment, unit B-2. There is only one other basement apartment, unit B-1, which is located across the hall from plaintiff's former apartment. The doors to both units open to a hallway; at one end of the hallway is an exit to the outside, and at the other end of the hallway is a door that leads to the boiler room. On the other side of the door to the boiler room is a short (5-6 step) set of steps leading down to the boiler room floor; at the far end of the boiler room, there is another set of steps that lead up to a door. On the other side of that door is the laundry room. For the residents of the basement units, the laundry room is reachable either by traversing through the boiler room or by going outside and using the laundry room's exterior entrance. Neither set of steps has a handrail.
The doors to the boiler room were kept locked. Plaintiff was given a key to the boiler room when she was hired, at least in part so that she could let contractors enter the room to perform repairs. According to plaintiff, she was also given the key "because [she] was a tenant" and because she was permitted to store items in the boiler room and to access the laundry room through the boiler room. One other tenant had a key to the boiler room; that tenant was Ramo James, plaintiff's basement neighbor at the time. James was not an employee of P&B. James testified at his deposition that the apartment manager gave him the key in 1994 when he first leased the apartment.
The building was sold to P&B in 2001. Robert Johnson, who was the Director of Operations for P&B, managed the property after it was bought by P&B. According to Johnson, the boiler room was off-limits to all tenants; no one was to be in the boiler room without authorization. Johnson testified that he was unaware that James had a key to the boiler room until this litigation began. Johnson testified that no one was permitted to store personal property in the boiler room, and that when he discovered that plaintiff was storing items in the room, he instructed her to remove those items. But according to plaintiff, Johnson had told her that both she and James had permission to store some personal property in the boiler room, so long as nothing flammable was left there. Plaintiff further testified that James accessed the boiler room in order to retrieve snow removal equipment. At his deposition, James denied ever storing, or being given permission to store, personal items in the boiler room, but did say that he had observed plaintiff's personal property stored there; however, he testified that he had "a little agreement" with the managers of the apartment that he would clean up the exterior of the apartment building once a week, and that he would retrieve a broom, rake, or shovel from the boiler room to do so. James testified that he was not paid for this work and that he did it because he wanted the outside of the apartment building to look nice. According to James, he only had the key to the boiler room to access the laundry room.
On September 23, 2014, plaintiff had started some laundry in the laundry room and was walking back to her apartment to wait for it to finish. From plaintiff's perspective as she was walking down the steps leading from the laundry room to the boiler room, there was a wall to her left; the right side of stairway was open to the boiler room floor below. While walking down the steps, she fell to the right "from the top step" to the concrete floor of the boiler room. Plaintiff testified that she was not carrying anything, and that as she turned to go down the steps, her "right ankle turned, [her] foot turned" and she fell. When asked what caused her ankle to turn, plaintiff stated, "I have no idea." Plaintiff broke her arm and wrist in the fall.
At her deposition, plaintiff testified that when she began to fall, she "instinctively reached out for a handrail. There is none. There was no handrail to break my fall or that I could grab on to, to prevent from falling." She also stated that the light was "very, very dim in there."
On September 20, 2017, plaintiff filed suit against defendants, alleging (1) premises liability, (2) violation of the "Detroit Municipal Building Code provisions regarding handrails, stairs and or lighting in common areas," (3) violation of the "housing law of Michigan, MCL 125.401 et seq., by failing to keep the dwelling and all its parts in good repair," (4) violation of MCL 554.139 by failing to keep common areas fit for their intended use, (5) failing to make repairs, and (6) making some repairs in a negligent or careless manner.
After discovery, defendants moved for summary disposition under MCR 2.116(C)(8) and (C)(10). The trial court granted the motion with respect to all claims except those brought under MCL 554.139. With regard to those claims, the trial court found that there was a question of fact regarding whether the boiler room was a common area, because both plaintiff and James were given access to the room and used it to access the laundry room. On March 20, 2019, the trial court entered an order granting in part and denying in part defendants' motion.
This appeal followed.
II. STANDARD OF REVIEW
We review de novo a trial court's decision on a motion for summary disposition. Moser v Detroit, 284 Mich App 536, 538; 772 NW2d 823 (2009). Summary disposition is proper under MCR 2.116(C)(10) if "there is no genuine issue as to any material fact, and the moving party is entitled to judgment . . . as a matter of law." We consider the affidavits, pleadings, depositions, admissions, and other documentary evidence in the light most favorable to the nonmoving party. Liparoto Constr, Inc v Gen Shale Brick, Inc, 284 Mich App 25, 29; 772 NW2d 801 (2009). All reasonable inferences are to be drawn in favor of the nonmovant. Dextrom v Wexford County, 287 Mich App 406, 415; 789 NW2d 211 (2010). A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds could differ. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).
III. ANALYSIS
Defendants argue that the trial court erred by denying their motion for summary disposition on plaintiff's claims under MCL 554.139. We agree.
MCL 554.139 provides statutory covenants for a lessor, to be read into every lease agreement, and 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.
(b) To keep the premises in reasonable repair during the term of the lease or license, and to comply with the applicable health and safety laws of the state and of the local unit of government where the premises are located, except when the disrepair or violation of the applicable health or safety laws has been caused by the tenants wilful or irresponsible conduct or lack of conduct.
At the outset, we note that plaintiff argues that the boiler room was a "common area" but presents no argument that the boiler room was part of the "premises" so as to trigger defendants' duties under MCL 554.139(b). Our Supreme Court has held that the Legislature has intended to exclude "common areas" from a lessor's duty to keep premises in reasonable repair. See Allison, 481 Mich at 432 (explaining that to give the terms "common areas" and "premises" meaning in MCL 554.139, the term "premises" cannot encompass "common areas"). Further, plaintiff's argument before the trial court was that the boiler room was a common area. Therefore, the trial court erred by failing to grant defendants' motion for summary disposition with regard to claims under MCL 554.139(b); plaintiff presented no genuine issue of material fact regarding whether the boiler room was a portion of the leased premises that defendants were required to keep in reasonable repair, i.e., part of the "premises."
Regarding plaintiff's claims under MCL 554.139(a), the trial court held that there was a genuine issue of material fact regarding both whether the boiler room was a "common area" and whether the steps were "fit for their intended use." We agree with the trial court that a genuine issue of material fact existed regarding whether the boiler room was a common area. In Allison, our Supreme Court discussed the characteristics of a "common area" under the statute:
MCL 554.139 does not define the term "common areas." However, Black's Law Dictionary (6th ed), p 275, defines "common area" as: "[i]n law of landlord-tenant, the portion of demised premises used in common by tenants over which landlord retains control (e.g. hallways, stairs) and hence for whose condition he is liable, as contrasted with areas of which tenant has exclusive possession." This definition is in accord with the plain and ordinary meaning of the term. "Common" is defined as "belonging equally to, or shared alike by, two or more or all in question[.]" Random House Webster's College Dictionary (1997). Therefore, in the context of leased residential property, "common areas" describes those areas of the property over which the lessor retains control that are shared by two or more, or all, of the tenants. A lessor's duties regarding these areas arise from the control the lessor retains over them. See, e.g., Williams v. Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418 NW2d 381 (1988) (stating that "a landlord may be held liable for an unreasonable risk of harm caused by a dangerous condition in the areas of common use retained in his control such as lobbies, hallways, stairways, and elevators"). [Allison, 481 Mich at 427.]
Here, the parties offered contradictory evidence regarding whether at least two tenants shared the use of the boiler room area as a means of accessing the laundry room and possibly for the storage of personal items. Although defendants argued that plaintiff was only given a key to the boiler room because of her status as an employee, plaintiff testified that it also was to permit her to access the laundry room and to store personal items. And although defendants argued that James did not have permission to access the boiler room, and essentially only possessed a key because of an oversight when the building management changed, James testified that he was given a key to the boiler room so that he could access the laundry room, that he also regularly accessed the room to get various tools for cleaning up the outside of the apartment building, and that he saw plaintiff's possessions stored there. Viewed in the light most favorable to plaintiff, Liparoto Constr, Inc, 284 Mich App at 29, reasonable minds could differ regarding whether plaintiff and James had access to the boiler room in order to further access the laundry room and to store items, Allison, 481 Mich at 425. The trial court therefore did not err by declining to grant summary disposition in favor of defendant on the ground that the boiler room was not a common area.
However, we agree with defendants that the trial court erred by holding that a genuine issue of material fact existed regarding whether the steps were fit for their intended use. While common areas must be kept fit for the use intended by the parties, MCL 554.139(1)(a) "does not require a lessor to maintain [a common area] in an ideal condition or in the most accessible condition possible . . . ." Allison, 481 Mich at 430. "[T]he primary purpose of a stairway is for walking." Hadden v McDermitt Apartments, LLC, 287 Mich App 124, 132; 782 NW2d 800 (2010). Plaintiff did not present any evidence that the steps were defective in the sense that they could not be used for walking up and down.
Plaintiff primarily bases her unfitness claim on the absence of a handrail. But while a handrail may have made the short set of steps safer, use of the steps did not require that there be a handrail. Again, a common area does not need to be kept in an ideal condition. Allison, 481 Mich at 430. Moreover, although plaintiff argues that the lack of a handrail violated City of Detroit ordinances, she failed to present any evidence that this was the case. Plaintiff provided the trial court with a city inspection report that merely stated that "means of egress" should have handrails installed. Defendants' expert testified at the summary disposition hearing that the applicable city ordinance only required a handrail on steps that were means of egress, meaning a means of entering or exiting a building. Plaintiff presented no evidence that the steps, which led to a door from the laundry room to the boiler room, were a means of egress. Plaintiff has not raised a genuine issue of material fact regarding whether a handrail was necessary for the steps to be fit for their intended use; indeed, by plaintiff's own admission, she had used the steps many times over her years as a tenant and leasing agent, without incident. Allison, 481 Mich at 425.
In addition, although plaintiff testified at her deposition that the area was dimly-lit, she also testified that there were two light sources in the room and, again, that she had traversed the steps many times without incident. She did not testify to any obstacle or defect in the steps that might cause her to trip if there was of inadequate lighting, or indeed to any role that the room's lighting played in her fall; rather, her testimony was that she twisted her ankle and could have avoided falling if she had been able to grab a handrail. This case is therefore substantially different from cases involving stairways where a lighting condition operated to hide another dangerous condition, such as an accumulation of snow and ice. See, e.g., Hadden, 287 Mich App at 128-130 (holding that "reasonable minds could conclude that the presence of black ice on a darkly lit, unsalted stairway . . . posed a hidden danger that denied tenants reasonable access to different levels of the apartment building and rendered the stairway unfit for its intended use."). Therefore, to the extent that the lighting condition of the room influenced the trial court's decision to deny summary disposition, we hold that it erred by doing so. Allison, 481 Mich at 425.
We reverse the trial court's order to the extent it denied defendants' motion for summary disposition and remand for entry of an order granting summary disposition in favor of defendants in full. We do not retain jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Stephen L. Borrello
/s/ Mark T. Boonstra