On November 28, 2006, we issued our original opinion in this case, affirming the trial court's grant of summary disposition in favor of defendants and declaring a conflict between this case and Teufel v. Watkins, 267 Mich.App. 425, 705 N.W.2d 164 (2005). On December 21, 2006, this Court decided that a special panel would not be convened pursuant to MCR 7.215(J) to resolve the conflict identified in our original opinion. Plaintiff moved for reconsideration, and we granted the motion and vacated our original opinion.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff was a tenant of an apartment building. He slipped and fell on an accumulation of snow and ice as he attempted to reach his car in the parking lot. Although the location of the fall was not clearly specified during plaintiff's deposition, he acknowledges that his fall occurred in the parking lot, rather than on the sidewalk. Plaintiff brought this action against defendant AEW Capital Management
AEW moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), arguing that plaintiff's common-law claims were barred because the danger was open and obvious. It further argued that plaintiff could not rely on MCL 554.139(1) because the statute does not apply to natural accumulations of snow and ice. The trial court granted AEW's motion. The pleadings were amended to substitute defendants Village Green Management Company and BFMSIT II for AEW.
On appeal, plaintiff argues that the open and obvious danger doctrine does not bar his claim that defendants violated the statutory duties imposed by MCL 554.139(1). MCL 554.139 provides, in relevant part:
Plaintiff invites this Court to extend the holding in Benton v. Dart Properties Inc., 270 Mich.App. 437, 715 N.W.2d 335 (2006), to parking lots and apply the reasoning of Benton to the facts of this case. In Benton, the plaintiff, a tenant in the defendant's apartment complex, slipped and fell on an icy sidewalk while he was walking from his apartment to a parking space in the apartment complex. Id. at 438-439, 715 N.W.2d 335. The plaintiff filed an action against the defendant, alleging that the defendant had violated its statutory duty to maintain common areas in a manner fit for their intended use, as required by MCL 554.139(1)(a). Id. at 439, 715 N.W.2d 335. This Court stated that while a landlord generally does not have a duty to protect an invitee from open and obvious dangers, in light of O'Donnell v. Garasic, 259 Mich.App. 569, 676 N.W.2d 213 (2003), the open and obvious danger doctrine is not available to deny liability when the defendant has a statutory duty to maintain the premises in reasonable repair. Benton, supra at 441, 715 N.W.2d 335. According to the Court, "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." Id. Therefore, we analyzed whether outdoor sidewalks in an apartment complex constitute common areas under MCL 554.139(1)(a).
We concluded that sidewalks constitute common areas under MCL 554.139(1)(a) because they are "located within the parameters of the apartment structure" and "are constructed and maintained by the landlord or those in the landlord's employ," because "all tenants who own and park their vehicles in the spaces allotted to them by their landlord rely on these sidewalks to access their vehicles and apartment buildings," and because "any person residing in an apartment complex must utilize the sidewalk provided by the landlord
Defendant argues that this Court's decision in Teufel controls and that under Teufel, the trial court properly dismissed plaintiff's claims. Like the present case, Teufel involved a plaintiff who fell on ice in the parking lot of an apartment complex. Teufel, supra at 426, 705 N.W.2d 164. This Court reasoned that the landlord's duty to remove snow and ice from the parking lot was not controlled by MCL 554.139(1) and therefore concluded, in a footnote, that the open and obvious danger doctrine barred the plaintiff's claim:
This Court's opinion in Teufel is legally flawed for two reasons. First, the footnote does not attempt to distinguish or even mention this Court's opinion in O'Donnell which specifically held that a defendant cannot use the open and obvious danger doctrine to avoid liability when the defendant has statutory duties to maintain the premises under MCL 554.139(1)(a) and (b):
For reasons that are inexplicable, the Teufel opinion completely ignored O'Donnell and failed to acknowledge or discuss the opinion at all. Second, the footnote in Teufel asserted in conclusory fashion that a landlord's "duty under MCL 554.139(1)(a) and (b) to keep its premises in reasonable repair and fit for its intended use does not extend to snow and ice removal" without conducting a separate analysis for MCL 554.139(1)(a) and MCL 554.139(1)(b), which impose separate and distinct duties on a landlord, to determine whether the landlord's duty extended to snow and ice removal. Teufel, supra at 429 n. 1, 705 N.W.2d 164. This Court in Teufel concluded that "reasonable repair," as used in MCL 554.139(1)(b), requires repair of a defect in the premises and that the accumulation of snow and ice is not a defect in the premises. This Court then summarily extended its conclusions regarding
Despite our disagreement with the legal analysis in Teufel, we would be bound to follow it under MCR 7.215(J)(1) were it not for one fact. In Teufel, this Court's discussion of MCL 554.139(1)(a) and (b) appeared in a footnote to the opinion rather than in the body of the opinion. It is generally ill-advised for an opinion to render a holding in a footnote. Had our Court in Teufel intended to create a rule of law regarding the availability of the open and obvious danger doctrine when a landlord has statutory duty under MCL 554.139(1)(a) and (b), it would have done so in the body of the opinion rather than in a footnote. See Guerra v. Garratt, 222 Mich.App. 285, 289-292, 564 N.W.2d 121 (1997) (holding that a footnote in the Supreme Court's opinion in Lemmerman v. Fealk, 449 Mich. 56, 534 N.W.2d 695 , did not create an exception to the general holding of Lemmerman because the Supreme Court would have written such an exception in the text of the opinion and not merely in a footnote). Therefore, we conclude that Teufel did not create a rule of law regarding the availability of the open and obvious danger doctrine when a landlord has a statutory duty under MCL 554.139(1), and we are not bound to follow Teufel under MCR 7.215(J)(1).
We hold that this Court's decision in Benton is controlling in this case. In order to determine whether defendants can rely on the open and obvious danger doctrine to avoid liability, we must decide whether a parking lot is a common area under MCL 554.139(1)(a), which would trigger defendants' duty to keep the parking lot fit for the use intended by the parties. Benton, supra at 441-444, 715 N.W.2d 335. Teufel did not analyze whether a parking lot is a common area under MCL 554.139(1)(a) and therefore did not determine whether a landlord had a duty to keep it fit for the use intended, but Benton did analyze whether a sidewalk was a common area under the statute. Like the Court in Benton, we conclude that the parking lot in the instant case was a common area under MCL 554.139(1)(a). The parking lot, like the sidewalk in Benton, is located within the parameters of the apartment complex and must be maintained by the landlord or someone in the landlord's employ. In addition, tenants also must necessarily walk on the parking lot to get to their vehicles from their apartments and to get to their apartments from their vehicles. The intended use of a parking lot is to park cars and other motor vehicles; however, in order to access their vehicles and apartments, tenants must also necessarily walk on the parking lot. A second intended use of a parking lot, therefore, is walking on it. A parking lot covered with ice is not fit for this purpose. See Benton, supra at 444, 715 N.W.2d 335. In extending the holding of Benton to a parking lot, we are mindful that the provisions of MCL 554.139 "shall be liberally construed. . . ." MCL 554.139(3). We therefore conclude that a parking lot, like a sidewalk, constitutes a common area under MCL 554.139(1)(a) and that defendant had a duty to keep the parking lot free from ice.
The outcome of this case is controlled by our holding in Benton and not the footnote in Teufel. A parking lot is a common area