Whether a condominium co-owner can maintain a premises liability action against the condominium association; Duty; The Condominium Act; Common-law principles; Whether a co-owner is a licensee or invitee; Special relationship; “The land of another”; Francescutti v Fox Chase Condo Ass’n

The court overturned Francescutti and concluded the Court of Appeals erred in holding that plaintiffs-condo co-owners “could not maintain a premises-liability action against” defendant-condo association. Under the circumstances, the court determined that the injured “plaintiff was an invitee when he entered the condominium’s common area and that defendant owed him a duty to exercise reasonable care to protect him from dangerous conditions on the land.” Thus, it reversed the judgment of the Court of Appeals and remanded the case to the trial court. Plaintiffs own and reside in a condo unit that is part of a condo complex. The injured plaintiff “stepped out of his condominium and into a common area of the complex to throw garbage into a dumpster. Plaintiff walked down the complex’s sidewalk, which was covered in snow and ice.” He slipped and fell. The fall resulted in a brain injury. The issue before the court was “whether a condominium co-owner can maintain a premises-liability action against a condominium association when the co-owner was injured while using the condominium’s common elements.” The court concluded “that the Court of Appeals erroneously determined that a condominium co-owner is neither a licensee nor an invitee and thus is precluded from bringing a premises-liability claim against a condominium association simply because the condominium co-owner holds an interest in those common elements. The proper inquiry when considering the duty owed in a premises-liability action is who has possession and control over the land where a person was injured, not merely who owns the land.” The court held “that, when the master deed and bylaws governing a condominium complex provide that the condominium association is responsible for maintaining the common areas and the condominium’s co-owners lack possession and control over those common areas, a condominium co-owner using the condominium complex’s common areas and elements is an invitee. In such circumstances, a condominium association owes a condominium co-owner a common-law duty to exercise reasonable care to protect them from dangerous conditions in the common areas.”

Dissenting, Justice Zahra (joined by Justice Viviano) “would affirm the Court of Appeals’ holding in Francescutti to the extent that a co-owner is neither a licensee nor an invitee.” He would also remand the “case to the trial court to determine whether any duty is owed to plaintiff by defendant under the Condominium Act or defendant’s bylaws.”