Slip & fall on ice; Premises liability; Whether a common area was fit for its intended use; MCL 554.139(1)(a); Whether MCL 554.139(1)(a) applies to sidewalks in common areas of apartment complexes; Allison v AEW Capital Mgmt, LLP; Principle that the open and obvious danger doctrine is not available to deny liability for a statutory violation under MCL 554.139(1); Gabrielson v The Woods Condo Ass’n, Inc; Notice; Distinguishing Estate of Trueblood v P&G Apts, LLC

The court held that the trial court did not err by granting defendants’ motion for summary disposition of plaintiff’s claim under MCL 554.139(1)(a) because she failed to create a genuine issue of material fact as to whether the sidewalk in her apartment complex was fit for its intended use. Plaintiff sued defendants for injuries she sustained when she slipped and fell on ice on the sidewalk. On appeal, the court agreed with plaintiff that the trial court erred by finding MCL 554.139(1) did not apply to walkways in common areas, but found reversal was not warranted because plaintiff “failed to create a genuine issue of material fact regarding whether the sidewalk was fit for its intended use.” The court also agreed with plaintiff that the trial court erred by finding the open and obvious doctrine applies to claims under MCL 554.139(1)(a). Again, however, “the trial court’s erroneous conclusion about the applicability of the open and obvious doctrine to claims under MCL 554.139(1)(a) has no bearing on this case because [it] granted defendants summary disposition” based on the absence of “a genuine issue of material fact regarding the fitness of the sidewalk.” Finally, the court rejected plaintiff’s contention that the trial court erred by granting defendants summary disposition of her claim under MCL 554.139(1)(a) because there was a genuine issue of material fact as to whether the slab was fit for its intended use. “[E]ven assuming the weather created ice on the sidewalk, that is insufficient to create a genuine issue of material fact regarding whether the sidewalk was unfit for its intended use.” Plaintiff had “the burden of proving a genuine issue of material fact exists regarding whether the sidewalk was fit for its intended use” and failed to do so. Without photos “or other evidence demonstrating the ice was so pervasive on the sidewalk that it made the sidewalk unfit for its intended use,” plaintiff failed to establish “a genuine issue of material fact exists regarding the fitness of the sidewalk.” And even if she could successfully limit her argument to the slab, she “would still fail to create a genuine issue of material fact regarding its fitness.” Affirmed.