Schedule a Consultation | Toll Free: 1-800-678-1307
Trial lawyers specializing in personal injury and civil litigation

Tenant who falls over construction debris on steps cannot sue landlord; mediated settlement with contractor enforced

Joanne Faustina sought to sue the Town Center, her landlord, and two construction contractors, after she stepped on construction debris on a stairway and fell.  She had the additionaql bad luck of drawing a Court of Appeals panel that included Henry Saad and Kirsten Kelly:  two of the insurers' best friends.

Both contractors and the landlord has sought summary disposition, but the trial judge threw out the case against the landlord only.  The contractors and Faustina attended court-ordered mediation, where there was an agreement to pay a settlement.  Faustina later attempted to withdraw from the agreement, arguing that she didn't realize at the time that the proposed agreement would not pay her medical expenses.  The Court enforced the agreement and Faustina appealed that and the summary disposition.

Faustina soon learned that the Courts NEVER allow a party to withdraw a settlement that has been agreed to in open court or reduced to writing.  Regardless of any mistake or misunderstanding Faustina may have had, the agreement was enforceable and enforced.  With respect to the landlord's liability for the construction debris, the Court of Appeals judges held that it was "not disputed that plaintiff encountered some debris on the steps of the apartment and fell, injuring herself."

Nevertheless, the Court held that the landlord's statutory duty to maintain an apartment complex in a condition that is reasonably fit does not include the duty to "protect an invitee from an open and obvious danger."  The judges ruled that when Faustina started down the steps at 3 am with a basket of laundry, the debris was an "open and obvious danger" that she could have "chosent not to confront."  They went on to criticize her for failing to put on shoes, for failing to turn on additional lights, and for failing to remove the debris, herself.  They found no duty on the part of the landlord whose contractor had created the condition that went unaddressed.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
Fax: 231-929-7262