Statutory defects in stairway not actionable
In two seperate cases decided last week, the Court of Appeals held that a resident or invitee who fell on an alleged stairway defect could not sue. In Pringle v. Langolf, the victim fell down a stairway after catching a toe on metal stripping on the highest step in her apartment. In Kaminski v. Haskins and DiLusso Building Company, the victim tripped and fell on a step which was constructed with improper heights and nosing.
The judges in the Pringle case held that it was irrelevant that the residential landlord had not complied with MCL 554.139(1), because the statute had not been cited in the Plaintiff's complaint. It also held that the stairway was an "open and obvious" danger because the allegedly defective condition would have been apparent to a casual observer, although there was no evidence that the metal strip "protruded"...that there were loose nails"... or that it was "loose, or jagged or in any other way a danger to the residents".
If you are wondering how an illegal step that has not apparent defects, yet is not "in any other way a danger" can be an "open and obvious" danger, so are we. This opinion helps to explain how the "open and obvious" danger defense--which eliminates any duty on the part of the premises owner--has been expanded out of any realistic meaning.
Meanwhile, Judge Gleicher wrote a brief but spirited dissent in the Kaminski case. In Kaminski, the majority held that a woman injured on steps that violated the Michigan Building Code could not sue the contractor who constructed them, because the contractor's only duty was to the homeowner, pursuant to contract. Judge Glecher pointed out the absurdity of this public policy and the fact that the contractor clearly owed a legal, statutory duty to build in accordance with the laws of the state. While the contractor owed no duty as a possessor of the premises, he still owed a duty to "construct safe steps".
Five years ago, we would have considered the latter argument incontestable: that someone would suggest today that a contractor owes no duty to "construct safe steps" points out abuse of power exercised by the activist majority of the Michigan Supreme Court.