Plaintiff appeals as of right an order granting summary disposition in favor of defendant. The issue raised by plaintiff in this matter is whether the affirmative duty imposed on a landlord pursuant to MCL 554.139(1)(a), to maintain interior sidewalks in an apartment complex in a condition fit for the use intended, can be circumvented by the open and obvious danger doctrine. We hold that the open and obvious danger doctrine cannot bar a claim against a landlord for violation of the statutory duty to maintain the interior sidewalks in a condition fit for the use intended under MCL 554.139(1)(a). Accordingly, we reverse the decision of the trial court and remand this matter for trial.
This case arose when plaintiff slipped and fell on an icy sidewalk at Oak Hill Apartments, which was owned and maintained
Following his slip and fall, plaintiff brought a two-count complaint in the Macomb Circuit Court alleging that defendant violated the statutory duty to maintain common areas in a manner fit for the use intended under MCL 554.139(1)(a). He also alleged that defendant did not take reasonable measures to diminish the danger of injury to plaintiff and similarly situated persons under general negligence law because defendant failed to remove snow and ice on the sidewalk in a timely manner. Plaintiff alleged that because defendant had violated a statutory duty, the open and obvious danger doctrine did not apply. The trial court disagreed and granted defendant's motion for summary disposition. In granting defendant's motion for summary disposition, the trial court asserted that the facts of O'Donnell v. Garasic, 259 Mich.App. 569, 676 N.W.2d 213 (2003), were distinguishable from the facts in the present case and concluded that because the sidewalk in this case was located outdoors rather than indoors and because there were no alleged violations of building codes, O'Donnell did not apply.
We review de novo a trial court's decision to grant or deny summary disposition. Mouradian v. Goldberg, 256 Mich.App. 566, 570, 664 N.W.2d 805 (2003). In addition, issues concerning the interpretation of a statute are questions of law that we review de novo. Dressel v. Ameribank, 468 Mich. 557, 561, 664 N.W.2d 151 (2003).
In a premises liability action, a plaintiff must prove the elements of negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff's injury, and (4) the plaintiff suffered damages. Taylor v. Laban, 241 Mich.App. 449, 452, 616 N.W.2d 229 (2000). The duty that a landlord owes a plaintiff depends on the plaintiff's status on the land. Stitt v. Holland Abundant Life Fellowship, 462 Mich. 591, 596, 614 N.W.2d 88 (2000). A person invited on the land for the owner's commercial purposes or pecuniary gain is an invitee, and a tenant is an invitee of the landlord. Id. at 604, 614 N.W.2d 88; Stanley v. Town Square Coop., 203 Mich.App. 143, 149, 512 N.W.2d 51 (1993). An owner "owes a duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land." Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 516, 629 N.W.2d 384
In light of O'Donnell, if defendant breached its duties under MCL 554.139, defendant would be liable to plaintiff even if the ice on the sidewalk was open and obvious. We therefore begin our analysis by addressing whether MCL 554.139 imposes a duty on defendant to remove ice from the interior sidewalks located within an apartment complex.
MCL 554.139 provides in pertinent part:
When construing a statute, the primary goal is to give effect to the intent of the Legislature, and the first step is to review the language of the statute. Cain v. Waste Mgt., Inc. (After Remand), 472 Mich. 236, 245, 697 N.W.2d 130 (2005). Statutory language should be construed reasonably, keeping in mind the purpose of the act. People v. Spann, 250 Mich.App. 527, 530, 655 N.W.2d 251 (2002), aff'd 469 Mich. 904, 668 N.W.2d 904 (2003). Words shall be construed according to their common meanings unless they are technical terms that have acquired peculiar meanings. MCL 8.3a; Cain, supra at 245, 697 N.W.2d 130. The omission of a provision from one part of a statute when it is included in another part should be construed as intentional. Farrington v. Total Petroleum, Inc., 442 Mich. 201, 210, 501 N.W.2d 76 (1993). If the language of the statute is unambiguous, the Legislature is presumed to have intended the meaning it plainly expressed, and no further judicial construction is permitted. Pohutski v. City of Allen Park, 465 Mich. 675, 683, 641 N.W.2d 219 (2002).
Thus, in ascertaining whether outdoor sidewalks located within an apartment complex constitute "common areas" under MCL 554.139, we analyze the plain language of the statute. Examining the plain
It is also important when reaching this decision to note that MCL 554.139 clearly refers to "common areas" as a separate category from "premises." Furthermore, the trial court's attempt to distinguish this case from our holding in O'Donnell is also misplaced. Nothing in the language of our O'Donnell opinion or in the language of MCL 554.139 itself supports the conclusion that MCL 554.139 specifically excludes outdoor spaces as common areas. Our holding is therefore based on the clear meaning of the language of MCL 554.139 as well as our prior decision in O'Donnell. Our interpretation of MCL 554.139 is also in keeping with the Legislature's intent to codify the earlier common law.
We conclude that sidewalks, such as the one used by plaintiff, constitute "common areas" under MCL 554.139(1)(a). Therefore, a landlord has a duty to take reasonable measures to ensure that the sidewalks are fit for their intended use. Because the intended use of a sidewalk is walking on it, a sidewalk covered with ice is not fit for this purpose. Thus, under our holding in O'Donnell, defendant owed plaintiff a duty of reasonable care regardless of the openness or obviousness of the icy sidewalk conditions.
We next address whether plaintiff has created a genuine issue of material fact regarding whether defendant breached its duty under MCL 554.139(1)(a). We begin by noting that the duty of care is generally a question of fact for the jury. Bertrand v. Alan Ford, Inc., 449 Mich. 606, 611, 617, 537 N.W.2d 185 (1995). Defendant presented a "Snow Removal Log," and an employee testified at his deposition that preventive measures were normally used to address ice and snow accumulations, including salting, ongoing spot checks, and monitoring of the weather. Several witnesses stated that these measures were fairly successful, although some of them admitted that they still saw patches of ice on the property. Several residents testified less favorably regarding defendant's maintenance of the
We conclude that plaintiff established a genuine issue of material fact regarding whether defendant breached its duty under MCL 554.139(1)(a) to maintain the sidewalk in a manner that was fit for its intended use. This Court is liberal in finding a genuine issue of material fact. Trentadue v. Buckler Automatic Lawn Sprinkler Co., 266 Mich.App. 297, 306, 701 N.W.2d 756 (2005). "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 might differ." West v. Gen. Motors Corp., 469 Mich. 177, 183, 665 N.W.2d 468 (2003). From the evidence presented, reasonable minds might differ regarding whether defendant's preventive measures, which consisted of salting the sidewalks only once in the morning on the day that plaintiff slipped and fell, constituted reasonable care in light of the weather conditions that day. Therefore, summary disposition was not appropriate.
In light of our holding that the open and obvious danger doctrine does not bar plaintiff's claim against defendant for violating its statutory obligation under MCL 554.139(1)(a), we need not address plaintiff's remaining issues on appeal.
Reversed and remanded. We do not retain jurisdiction.