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Court majority rules landlord owed no duty to clear snow and ice from garbage access

College student Aikaterini Rousaki rented one of several apartments in a converted home on Thompson Street in Ann Arbor.  She had just deposited her garbage in the bin, one evening in January of 2009, when she slipped on ice and fell, suffering injury.  She filed a claim against the landlord, Lola Souliotis, arguing that the landlord had not met her legal duty to maintain the common areas of the apartment house in a manner reasonably safe for tenants.  Both the common law and a Michigan statute provide that landlords owe this duty of "reasonable care" to tenants.

Nevertheless, the trial judge held that since Rousaki fell on accumulated ice and snow, the hazard she encountered was "open and obvious" and that this fact obviated any duty of the landlord to alleviate the hazard.  At the defendant's request, the case was dismissed summarily prior to trial. The tenant appealed.

Michigan law expressly provides that "In every lease of residential premises, the lessor...covenants...that...all common areas are fit for the use intended...[and]to keep the premises in reasonable repair...and to comply with the applicable health and safety laws ..." While the Republican majority of the Court of Appeals panel, including Henry Saad who rules in favor of insurers in virtually every case, acknowledged the above duty, it held that this duty did not apply to create a duty on the part of the landlord to address snow and ice in the driveway area adjacent to the garbage bin. 

These two judges held that since the area could still be traversed by a motor vehicle, it remained "fit for its intended purpose."  The majority simply disregarded the fact that one intended purpose of the area was to allow the multiple tenants to access the garbage bin.  It concluded that since there were "numerous foot prints around the can...other tenants accessed the garbage cans by traversing the driveway."  We aren't clear why this observation would support the holding that the icy drive was "fit for the purpose intended:  it appears to support the tenants' position." 

The majority also based its decision on the fact that there was no evidence of a tenant previously telling the landlord that he or she could not use the driveway to access the garbage bins.  This seems to raise an issue of "notice" to the landllord, rather than a basis for concluding that there was no "genuine issue of material fact" regarding whether the access was reasonably safe.

The third judge on the panel wrote a cogent dissent, pointing out that the majority was literally refusing to enforce a clearly-stated Michigan statute which the Legislature had expressly directed the Courts to "liberally construe [to achieve the stated purpose of making rental properties reasonably safe]."  The dissenting judge pointed out that the majority had misconstrued prior precedents and that it was in effect "usurping" Legislative prerogative. 

Since the area in question was, without any dispute, a multi-purpose area used for garbage bin access, and since the presence of accumulated ice and snow was not contested, the dissenting judge deemed it improper to summarily find the area to be "fit."  The dissenter pointed to the injured young woman's description of the difficulty of lifting a big bag of trash to put it in the can, while maintaining one's balance on "uneven piles of snow and ice." 

The majority's holding is simply another example of "judicial activism." These two staunch insurance advocates have usurped the power of the Legislature and the power of the jury by deciding that the tenant had not presented sufficient facts to allow the case to be decided by a jury.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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