premises liability claim in Michigan

2024To advance a premises-liability claim, “an invitee must show that the premises owner breached its duty to the invitee and that the breach constituted the proximate cause of damages suffered by the invitee.” Lowrey, 500 Mich at 8.

2023To prevail on a premises liability claim, “an invitee must show that the premises owner breached its duty to the invitee and that the breach constituted the proximate cause of damages suffered by the invitee.” Id.

2025However, that does not preclude a separate claim [against that defendant] grounded on an independent theory of liability based on the defendant’s conduct . . . .” Laier v Kitchen, 266 Mich App 482, 493 ; 702 NW2d 199 (2005). 3 At the time Finazzo was decided, whether the alleged hazard was open and obvious pertained to the duty element of a plaintiff’s premises-liability claim; as our Supreme Court recently made clear in Kandil-Elsayed, 512 Mich at 104, that is no longer so. -6- As in Finazzo, plaintiff here sued defendant under two theories of liability: premises liability and general neglige

2025However, that does not preclude a separate claim [against that defendant] grounded on an independent theory of liability based on the defendant’s conduct . . . .” Laier v Kitchen, 266 Mich App 482, 493 ; 702 NW2d 199 (2005). 3 At the time Finazzo was decided, whether the alleged hazard was open and obvious pertained to the duty element of a plaintiff’s premises-liability claim; as our Supreme Court recently made clear in Kandil-Elsayed, 512 Mich at 104, that is no longer so. -6- As in Finazzo, plaintiff here sued defendant under two theories of liability: premises liability and general neglige

2026The open and obvious doctrine was overturned by Kandil-Elsayed v F & E Oil, Inc, 512 Mich 95 , 133; 1 NW3d 44 (2023), but Kandil-Elsayed did not otherwise disturb the elements of a premises liability claim. 4 In so concluding, we are not expanding our common law, we are applying it. -5- because of prior reported attacks, and failed to appropriately respond.

2026The open and obvious doctrine was overturned by Kandil-Elsayed v F & E Oil, Inc, 512 Mich 95 , 133; 1 NW3d 44 (2023), but Kandil-Elsayed did not otherwise disturb the elements of a premises liability claim. 4 In so concluding, we are not expanding our common law, we are applying it. -5- because of prior reported attacks, and failed to appropriately respond.

2024Because plaintiff presented sufficient evidence for a reasonable jury to infer that defendant had constructive notice of the hole in the ground, we agree.3 In a premises-liability claim, the plaintiff must show the four elements of a negligence claim: (1) “the defendant owed a legal duty to the plaintiff;” (2) “the defendant breached or violated the legal duty it owed to the plaintiff;” (3) “the plaintiff suffered damages; and” (4) “the defendant’s breach of duty was a proximate cause of the damages suffered by the plaintiff.” Riddle v McLouth Steel Prod Corp, 440 Mich 85 , 96 n 10; 485 NW2d 6

2024Because plaintiff presented sufficient evidence for a reasonable jury to infer that defendant had constructive notice of the hole in the ground, we agree.3 In a premises-liability claim, the plaintiff must show the four elements of a negligence claim: (1) “the defendant owed a legal duty to the plaintiff;” (2) “the defendant breached or violated the legal duty it owed to the plaintiff;” (3) “the plaintiff suffered damages; and” (4) “the defendant’s breach of duty was a proximate cause of the damages suffered by the plaintiff.” Riddle v McLouth Steel Prod Corp, 440 Mich 85 , 96 n 10; 485 NW2d 6

2022In a premises-liability claim, “liability arises solely from the defendant’s duty as an owner, possessor, or occupier of land.” Id.

2022In a premises liability claim, “liability arises solely from the defendant’s duty as an owner, possessor, or occupier of land.” Id.

2023See Jahnke v Allen, 308 Mich App 472, 476 ; 865 NW2d 49 (2014), (the plaintiff slipping on concrete pavers, despite the defendant also escorting her across the property, only supported a premises-liability claim); see also Jeffrey-Moise, 336 Mich App at 625 (the plaintiff’s slip and fall on black ice sounded in premises liability).

2023See Jahnke v Allen, 308 Mich App 472, 476 ; 865 NW2d 49 (2014), (the plaintiff slipping on concrete pavers, despite the defendant also escorting her across the property, only supported a premises-liability claim); see also Jeffrey-Moise, 336 Mich App at 625 (the plaintiff’s slip and fall on black ice sounded in premises liability).

2016Compare Orel v Uni-Rak Sales Co, Inc, 454 Mich 564, 566-570 ; 563 NW2d 241 (1997) (discussing when an owner constitutes an invitor for purposes of a premises liability claim).

2016Compare Orel v Uni-Rak Sales Co, Inc, 454 Mich 564, 566-570 ; 563 NW2d 241 (1997) (discussing when an owner constitutes an invitor for purposes of a premises liability claim).

2025A premises-liability claim is based upon an injury suffered from “a condition of the land.” James v Alberts, 464 Mich 12, 19 ; 626 NW2d 158 (2001).

2025A premises-liability claim is based upon an injury suffered from “a condition of the land.” James v Alberts, 464 Mich 12, 19 ; 626 NW2d 158 (2001).

2025But after we issued our unpublished opinion, our Supreme Court ruled in Janini v London Townhouses Condo Ass’n, ___ Mich ___; ___ NW3d ___ (2024) (Docket No. 164158), “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.” Id. at ___; slip op at 2.

2025In essence, plaintiff alleged that defendants were liable to him for damages because they failed to “remove black ice in the walkway/common area,” and because they separately committed “active negligence” by “negligently perform[ing] their respective obligations-duties.” In May 2023, defendants Shelby Woods North Condominiums Association, Kirkpatrick Management Company, and Kirkpatrick Management Company of Michigan moved for summary disposition under MCR 2.116(C)(10).1 In the accompanying brief, defendants argued that the premises-liability claim was meritless because, under Francescutti v Fo

2024“A claim based on the condition of the premises is a premises liability claim.” Finazzo v Fire Equipment Co, 323 Mich App 620, 627 ; 918 NW2d 200 (2018) (citation omitted).

2024“A claim based on the condition of the premises is a premises liability claim.” Finazzo v Fire Equipment Co, 323 Mich App 620, 627 ; 918 NW2d 200 (2018) (citation omitted).

2025Premises liability is a species of negligence, so the elements for a premises liability claim are the same as the elements of an ordinary negligence claim: the plaintiff must prove “(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.” Estate of Trueblood v P&G Apartments, LLC, 327 Mich App 275 , 285; 933 NW2d 732 (2019) (quotation marks and quotation omitted).

2025Premises liability is a species of negligence, so the elements for a premises liability claim are the same as the elements of an ordinary negligence claim: the plaintiff must prove “(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.” Estate of Trueblood v P&G Apartments, LLC, 327 Mich App 275 , 285; 933 NW2d 732 (2019) (quotation marks and quotation omitted).

2025An ordinary-negligence claim concerns “the overt acts of a premises owner on his or her premises,” while a premises-liability claim concerns “a condition of the land.” Kachudas v Invaders Self Auto Wash, Inc, 486 Mich 913, 914 (2010).

2025While an ordinary-negligence claim involves “the overt acts of a premises owner on his or her premises,” a premises-liability claim concerns “injury by a condition of the land.” Kachudas v Invaders Self Auto Wash, Inc, 486 Mich 913, 914 (2010).

2018See AFSCME Council 25 v Faust Public Library, 311 Mich App 449, 459 ; 875 NW2d 254 (2015) (“[P]arties are permitted to plead inconsistent claims and facts in the alternative.”).

2018See AFSCME Council 25 v Faust Public Library, 311 Mich App 449, 459 ; 875 NW2d 254 (2015) (“[P]arties are permitted to plead inconsistent claims and facts in the alternative.”).

2024After a jury finds that all the elements of a premises-liability claim have been satisfied, “the jury should consider the plaintiff’s comparative fault and reduce the plaintiff’s damages accordingly.” Id. at ___; slip op at 44.

2022The GTLA provides: In a civil action, a municipal corporation that has a duty to maintain a sidewalk under subsection (1) may assert, in addition to any other defense available to it, any defense available under the common law with respect to a premises liability claim, including, but not limited to, a defense that the condition was open and obvious. [MCL 691.1402a(5).] “Whether a danger is open and obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection.” Hoffner v Lanctoe, 492 Mich 450, 461 ; 821

2024“Thus, a landowner’s duty to a visitor depends on that visitor’s status.” Id. -2- The outcome of plaintiff’s premises-liability claim largely turns on whether plaintiff was a licensee or an invitee when she fell on ice in the Church parking lot.

2014See MCR 2.116(G)(4) (stating that the moving party has the initial burden to identify the issues about which it believes there are no genuine issues of material fact for trial); Stitt, 462 Mich at 597 (stating that notice—actual or constructive—is an element of a premises liability claim).

2026See id.

2018We disagree. -2- Michigan courts have well established the rule that “[p]remises liability is conditioned upon the presence of both possession and control over the land.” Kubczak v Chemical Bank & Trust Co, 456 Mich 653, 660 ; 575 NW2d 745 (1998) (quotation marks and citation omitted); see also Orel v Uni-Rak Sales Co, 454 Mich 564, 568 ; 563 NW2d 241 (1997).

2021See Perkoviq, 466 Mich at 19 .

2020The trial court found that summary disposition of the premises-liability claim was required by Perkoviq v Delcor Home-Lake Shore Pointe, Ltd, 466 Mich 11 ; 643 NW2d 212 (2012).

2014Plaintiff asserts that the trial court’s review of her complaint was flawed because the complaint stated “COUNT I — NEGLIGENCE” and not “Premises Liability.” However, plaintiffs argument provides little guidance on whether this is a premises liability claim or *475 an ordinary negligence claim because “[i]t is well settled that the gravamen of an action is determined by reading the complaint as a whole, and by looking beyond mere procedural labels to determine the exact nature of the claim.” Adams v Adams (On Reconsideration), 276 Mich App 704, 710-711 ; 742 NW2d 399 (2007).

2014Plaintiff asserts that the trial court’s review of her complaint was flawed because the complaint stated “COUNT I — NEGLIGENCE” and not “Premises Liability.” However, plaintiffs argument provides little guidance on whether this is a premises liability claim or *475 an ordinary negligence claim because “[i]t is well settled that the gravamen of an action is determined by reading the complaint as a whole, and by looking beyond mere procedural labels to determine the exact nature of the claim.” Adams v Adams (On Reconsideration), 276 Mich App 704, 710-711 ; 742 NW2d 399 (2007).