C Daoud Mousa Janini v. London Townhouses Condominium Association ( 2022 )


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  •             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
    revision until final publication in the Michigan Appeals Reports.
    STATE OF MICHIGAN
    COURT OF APPEALS
    DAOUD MOUSA JANINI and FERYAL JANINI,                             UNPUBLISHED
    February 1, 2022
    Plaintiffs-Appellees,
    v                                                                 No. 355191
    Wayne Circuit Court
    LONDON TOWNHOUSES CONDOMINIUM                                     LC No. 19-008520-NO
    ASSOCIATION,
    Defendant-Appellant,
    and
    JAMES PYDA,
    Defendant.
    Before: CAVANAGH, P.J., and SHAPIRO and GADOLA, JJ.
    SHAPIRO, J. (concurring).
    I agree with the majority that Francescutti v Fox Chase Condo Ass’n, 
    312 Mich App 640
    ;
    886 NW2d 891 (2015), requires reversal of the trial court’s decision to deny summary disposition
    to the defendant condominium association. However, because I believe Francescutti was wrongly
    decided and absent its binding authority would affirm the trial court, I would issue a published
    decision requesting that a special panel be convened to reconsider whether condominium
    associations should be immune from premises liability actions brought by condominium unit
    owners. See MCR 7.215(J)(2)-(3).
    I. BACKGROUND
    Plaintiff Daoud Janini is the owner of a condominium unit in the London Townhouses, a
    condominium project operated by defendant, a non-profit corporation known as the London
    -1-
    Townhouses Condominium Association.1 Plaintiff filed suit alleging that he suffered a serious
    injury when he fell as a result of the Association’s failure to take reasonable measures within a
    reasonable time to address icy conditions on the project’s sidewalks, which are considered to be
    common elements of the project.2 That the Association bears responsibility for taking such
    measures is not in dispute. The Association’s bylaws provide that “[t]he Association shall be
    responsible for construction, repair and maintenance of the Common Elements,” and in its answer
    to interrogatories, the Association admitted that it “was responsible for salting on the sidewalks”
    and for “[s]now and ice removal on the sidewalks.”
    The Association filed a motion for summary disposition, arguing that although it was
    responsible to perform snow and ice removal, plaintiff could not bring a premises liability suit
    against it because as a unit owner he possesses an undifferentiated property interest in the common
    elements along with all other unit owners as “co-owners”3 of the project. The Association relied
    on this Court’s decision in Francescutti that co-owners are barred from suing the condominium
    association for the condition of the common elements under common law. The trial court, while
    granting some aspects of the Association’s motion, denied it as to plaintiff’s premises liability
    claim.
    I. ANALYSIS
    Were I free to do so, I would affirm the denial of summary disposition because contrary to
    the Association’s argument, in premises liability actions, the focus is not on ownership or title as
    such but on who has possession and control of the land. See Finazzo v Fire Equip Co, 
    323 Mich App 620
    , 627; 918 NW2d 200 (2018) (“Generally, for a party to be subject to premises liability in
    favor of persons coming on the land, the party must possess and control the property at issue but
    not necessarily be its owner.”). This is because the “party in possession is in a position of control,
    and normally best able to prevent any harm to others.” 
    Id.
     (quotation marks and citation omitted).
    See also Stanley v Town Square Coop, 
    203 Mich App 143
    , 147; 512 NW2d 51 (1993) (“[The party
    with] exclusive control over the common areas of the premises, . . . is the only one who can take
    the necessary precautions to ensure that the common areas are safe for those who use them.”). The
    issue was discussed at length in Oriel v Uni-Rak Sales Co, Inc, 
    454 Mich 564
    , 568; 562 NW2d
    241 (1997):
    1
    For purposes of clarity, I refer to various entities by the name provided by the Condominium Act,
    MCL 559.101 et seq. Plaintiff’s dwelling will be referred to as his “condominium unit.” MCL
    559.104(3). Lincoln Townhouses will be referred to as the “condominium project” or “project.”
    MCL 559.104(1). Because plaintiff Feryal Janini’s claims are derivative of her husband’s claims,
    the term “plaintiff” as used in this opinion refers only to plaintiff Daoud Janini.
    2
    Common elements are defined by statute as “the portions of the condominium project other than
    the condominium units.” MCL 559.103. In some cases, they are also referred to as “common
    areas.”
    3
    MCL 559.106(1) defines “co-owner” as “a person, firm, corporation, partnership, association,
    trust, or other legal entity or any combination of those entities, who owns a condominium unit
    within the condominium project.”
    -2-
    Premises liability is conditioned upon the presence of both possession and
    control over the land. This is so because
    “[T]he man in possession is in a position of control, and normally best able
    to prevent any harm to others.”
    Michigan has consistently applied this principle in imposing liability for
    defective premises.
    Our application of this principle is in accordance with the Restatement of
    Torts. The Restatement imposes liability for injuries occurring to trespassers,
    licensees, and invitees upon those who are “possessors” of the land. A “possessor”
    is defined as:
    “(a) a person who is in occupation of the land with intent to control it or
    “(b) a person who has been in occupation of land with intent to control it, if
    no other person has subsequently occupied it with intent to control it, or
    “(c) a person who is entitled to immediate occupation of the land, if no other
    person is in possession under Clauses (a) and (b).”
    Ownership alone is not dispositive. Possession and control are certainly incidents
    of title ownership, but these possessory rights can be “loaned” to another, thereby
    conferring the duty to make the premises safe while simultaneously absolving
    oneself of responsibility. [Quoting Merritt v Nickelson, 
    407 Mich 544
    , 552-553;
    287 NW2d 178 (1980).]
    Thus, a land owner who has not retained at least some degree of possession or control of
    the premises owes no duty to the entrants. See e.g., Merritt, 
    407 Mich at 554
    ; Wheeler v Iron Co
    Rd Comm, 
    173 Mich App 542
    , 544-545; 434 NW2d 188 (1988). Accordingly, the Michigan Model
    Civil Jury Instructions do not state that an “owner” has the duty to protect those who come on the
    land, rather it imposes a duty on “the possessor” of the premises. See e.g., M Civ JI 19.03.
    It is not in dispute that the Association is in possession and control of the common
    elements. By contrast, while a condominium unit owner has a nonexclusive and undifferentiated
    right to use those elements, no unit owner possesses a right of possession and control over them.
    Condominium unit owners may not modify the common elements, may not maintain them, may
    not deny others the right to access those areas and may not sell their “share” of the common
    elements.4 The Association cannot point to any indicia of ownership present other than the right
    of reasonable, nonexclusive use that terminates immediately upon the sale of their unit. I would
    conclude that because the Association is the sole party in possession and control of common
    4
    MCL 559.137(5) provides that “[e]xcept to the extent otherwise expressly provided by this act,
    the undivided interest in the common elements allocated to any condominium unit shall not be
    altered, and any transfer, encumbrance, or other disposition of that interest without the
    condominium unit to which it appertains is void.”
    -3-
    elements, it may be sued in premises liability for injuries arising out of dangerous conditions, even
    by one who has an ownership interest in the common elements.
    As noted however, we are constrained to reverse and direct the trial court to grant summary
    disposition of the premises liability claim in light of the decision in Francescutti, 
    312 Mich App 640
    . In that case, the plaintiff, a condominium unit owner, slipped and fell on an icy sidewalk in
    a common element of the condominium complex. 
    Id. at 641
    . The plaintiff filed a premises liability
    action, alleging that he was an invitee with respect to common elements of the complex, while the
    condominium association argued that the plaintiff was a licensee. 
    Id. at 642
    . Though not argued
    in the briefs, this Court held that, as it pertained to the common elements, a condominium owner
    is neither an invitee or a licensee because the definitions of those terms refer to a person entering
    on to “the land of another,” and a condominium owner is “a co-owner of the common areas of the
    development.” 
    Id. at 643
    . It concluded that “because plaintiff is neither a licensee nor an invitee,
    there was no duty owed to plaintiff by defendant under premises liability. Rather, any duty owed
    to plaintiff by defendant must arise either from principles of general negligence or breach of
    contract.” Id.5
    For the reasons already discussed, Francescutti’s holding, which turned on who owned the
    common elements, is inapposite to basic premises liability law that it is the possessor of the land
    who is responsible for injuries that occur on the property.6 To the extent that Francescutti can be
    read as holding that a unit owner may not sue for the condition of the common elements because
    that would be akin to suing one’s self, that holding is not well reasoned. In a premises liability
    action, the unit owner is not suing him or herself, but rather is suing the Association, a distinct
    legal entity. Such individual actions against the Association are expressly allowed by the
    5
    In this case, plaintiff briefly suggests that he has an extant claim for negligent maintenance of the
    sidewalk arising from the condominium bylaws. But the trial court dismissed all claims except for
    premises liability, and plaintiff did not file a cross-appeal.
    6
    Further, while Francescutti relied heavily on the “land of another” language found in some
    definitions of invitee and licensee, it is noteworthy that the definitions of those terms contained in
    the model civil jury instructions do not contain that language:
    *(An invitee is a person who is invited to enter or remain on [land / premises / a place of
    business] for a commercial benefit to the possessor of the [land / premises / place of
    business] or for a purpose directly or indirectly connected with business dealings with the
    possessor. An invitation may be either express or implied.)
    *(A licensee is a person who is invited to enter or remain on [land / premises / a place of
    business] for any purpose other than a business or commercial one with the express or
    implied permission of the owner or person in control of the [land / premises / place of
    business]. A social guest is a licensee, not an invitee.) [M Civ JI 1.901.]
    -4-
    Condominium Act, MCL 559.101 et seq.7 And precluding unit owners from suing the Association
    is not consistent with basic law governing the analogous areas of partnerships and shareholders.8
    Notably, another panel of this Court recently held that cooperative housing entities are
    liable to those living within the project for a failure to reasonably maintain the common elements.
    See Jeffrey-Moise v Williamsburg Towne Houses Coop, Inc, ___ Mich App ___; ___ NW2d ____
    (2021) (Docket No. 351813). In reaching that decision, the Court recognized that it was the
    defendant housing cooperative, rather than the plaintiff member, who had possession and control
    over the common areas:
    Plaintiff’s membership in the cooperative did not give her independent
    authority over the common areas of the cooperative typically enjoyed by an owner.
    In fact, the Occupancy Agreement precluded plaintiff, as a member, from making
    alterations to the common areas of the premises, including the sidewalks. By
    contrast, defendant retained control over the maintenance of the common areas of
    the cooperative, including authority over the removal of snow and ice in those areas.
    Defendant thus retained sufficient control and dominion over the common areas
    that it may be said that defendant was in possession of the common areas of the
    cooperative in contrast to plaintiff’s membership right to use those areas. Because
    defendant was in possession of the cooperative’s common areas, we conclude that
    plaintiff was on land that was in the possession of another when she fell. [Id. at
    ___; slip op at 7 (emphasis added).]
    In distinguishing Francescutti, the Jeffrey-Moise Court noted the differences in the
    corporate structures of condominiums and cooperatives, explaining that condominium owners take
    title to an individual unit while a member in a cooperative owns stock in the cooperative
    corporation and receives a lease to a unit. 
    Id.
     The Court concluded that
    [u]nlike the plaintiff in Francescutti, there is little support for the conclusion
    that plaintiff owned the land on which she fell. Plaintiff’s purchase of a
    membership in the cooperative entitled her to occupy her townhome and entitled
    7
    See MCL 559.207 (“A co-owner may maintain an action against the association of co-owners
    and its officers and directors to compel these persons to enforce the terms and provisions of the
    condominium documents.”); Newport West Condo Ass’n v Veniar, 
    134 Mich App 1
    , 13; 350
    NW2d 818 (1984) (“Defendants are not without a remedy for violations by the association of the
    master deed, bylaws, or the Condominium Act. This remedy consists of legal action against the
    association . . . .”). In addition, MCL 559.215(1) provides that: “A person . . . adversely affected
    by a violation of failure to comply with this Act, or any provision of an agreement or master deed
    may bring an action for relief in a court of competent jurisdiction.”).
    8
    See Yenglin v Mazur, 
    121 Mich App 218
    , 224; 328 NW2d 624 (1982) (“[S]ince a partnership is
    a separate legal entity for purposes of litigation, capable of suing and being sued, [a partner] may
    sue on a general obligation of his partnership without the necessity of first bringing an action for
    an accounting.”); George N Fletcher & Sons v Alpena Circuit Judge, 
    136 Mich 511
    , 513; 
    99 NW 748
     (1904) (“[A] stockholder may [sue the corporation to] enjoin the making of a usurious
    contract” or a ultra vires act).
    -5-
    her to use the common areas of the cooperative, as long as she paid the required
    monthly fees and complied with the rules of the cooperative. Plaintiff was thus in
    a business relationship with the cooperative in which she purchased certain rights
    of occupancy from the cooperative by buying a membership in the cooperative.
    [Id.]
    But while the ownership structures of condominium associations and housing cooperatives
    are different, it is difficult to see why this should lead to a different outcome in a premises liability
    suit. To the contrary, MCL 559.241(1) makes clear that the ownership structure of a condominium
    is not grounds to avoid the legal duties solely on the basis of its form of ownership:
    A condominium project shall comply with applicable local law, ordinances,
    and regulations. Except as provided in subsection (2), a proposed or existing
    condominium project shall not be prohibited nor treated differently by any law,
    regulation, or ordinance of any local unit of government, which would apply to that
    project or development under a different form of ownership. [MCL 559.241(1)
    (emphasis added).]
    Further, for both condominiums and cooperatives, it is the managing legal entity that is
    responsible for maintaining the common areas,9 and in both cases, those who live in the complex
    have an ownership interest in the common areas: condominium owners as co-owners and
    cooperative members as stockholders. Just as cooperative members pay monthly fees to the
    cooperative to fund maintenance of the common elements, Jeffrey-Moise, ___ Mich App at ___;
    slip op at 2, in this case plaintiff paid monthly dues to the Association to fund maintenance of the
    common elements of the project. And like cooperative members, condominium unit owners are
    in no sense possessors as it relates to the common areas. See Oriel, 
    454 Mich at 568
    . While the
    condominium association may exercise control over the common areas, no individual unit owner
    may do so. For example, individual unit owners are not permitted to make their own alterations
    to the common areas. Nor can a unit owner occupy the common areas or exclude other owners.10
    Thus, for purposes of a premises liability action—where the proper defendant is the entity
    with possession and control of the land—there is not a material distinction between condominium
    associations and housing cooperatives as it pertains to common elements. Both associations and
    cooperatives maintain the common elements and have the sole authority to control them and are
    therefore the “possessors,” as opposed to the individual owners and members who merely use
    9
    And unlike Francescutti, in which the plaintiff did not cite to any provisions in the condominium
    documents establishing a duty to maintain on the part of the Association, see Francescutti, 312
    Mich App at 644, the bylaws here provide that “[t]he Association shall be responsible for
    construction, repair and maintenance of the Common Elements.”
    10
    Indeed, the Association wants to have its cake and eat it too. It claims that because plaintiff is
    a “co-owner” he may not bring suit regarding common areas. But it also claims that if a unit owner
    were to damage any common areas, the Association may sue the unit owner even though he is a
    co-owner.
    -6-
    those areas. I can perceive no principled reason why housing cooperatives should be subject to
    liability in these types of suits but condominium associations should not, particularly in light of
    MCL 559.241(1). Nor is it at all clear why a stockholder (i.e., a partial owner) may sue the entity
    in which he holds stock, but a condominium owner who shares ownership of the common elements
    with all the other unit owners may not sue the entity entrusted with the project’s management.
    Further, while the Francescutti Court was unable to find any Michigan authority that an
    owner of a condominium unit is an invitee or licensee with respect to common areas, Francescutti,
    312 Mich App at 642-643, there is also no prior Michigan case addressing the issue that concluded
    that unit owners may not sue for injuries due to failure to maintain the common areas. Given that
    Michigan had no published caselaw on the issue, it is noteworthy that, at least according to the
    American Law Reports, Michigan now stands alone in barring premises liability actions by
    individual unit owners against condominium associations for injury caused by the condition of
    common areas. See Liability of condominium association or corporation for injury allegedly
    caused by condition of premises, 
    45 ALR 3d 1171
    .11
    For these reasons, I would conclude that Francescutti was wrongly decided and request
    that this Court convene a special panel to reconsider the issue.
    /s/ Douglas B. Shapiro
    11
    See e.g., Davenport v Cotton Hope Plantation Horizontal Prop Regime, 333 SC 71, 88; 508
    SE2d 565 (1998) (“[A] member of a condominium association . . . may bring a tort action against
    the association for failing to properly maintain the common elements”); Lechler v 303 Sunset
    Avenue Condo Ass’n, Inc, 452 NJ Super 574, 586; 178 A3d 711 (App Div, 2017) (condominium
    association had a duty to unit owner, who was injured when he stumbled down center of
    condominium’s exterior stairs, to maintain stairs); Soederberg v Concord Greene Condo Ass’n, 76
    Mass App Ct 333; 
    921 NE2d 1020
     (2010) (condominium resident, who was injured in slip-and-
    fall accident on sidewalk on the premises of condominium complex, could bring negligence action
    against the condominium association); Henderson v Lofts at Lake Arlington Towne Condo Ass’n,
    
    2018 IL App (1st) 162744
    ; 
    105 NE3d 1
    , 14 (2018) (unit owners’ association owed a duty to
    condominium resident who slipped and fell on his front step on a rainy evening, allegedly due to
    faulty epoxy work); Sadlowski v Beacon Mtg Servs, Inc, 348 Ga App 585, 594; 824 SE2d 42
    (2019) (condominium association has a duty to maintain the common elements unless that duty is
    circumscribed by the condominium documents); Lloyd v Pier West Prop Owners Ass’n, 2015 Ark
    App 487; 
    470 SW3d 293
    , 299 (2015) (a condominium association may be held to the landlord
    standard of care as to common areas under its control); Sevigny v Dibble Hollow Condo Ass’n, Inc,
    76 Conn App 306, 320; 819 A2d 844 (2003) (an individual condominium unit owner who is a
    member of the condominium association may maintain a negligence action against the association
    for negligent maintenance of its common areas); Walters v Beach Club Villas Condo, Inc, 301 So
    3d 343, 348 (Fla App, 2020) (condominium association bound by its establishing documents that
    impose a duty on it to maintain common areas).
    -7-
    

Document Info

Docket Number: 355191

Filed Date: 2/1/2022

Precedential Status: Non-Precedential

Modified Date: 2/3/2022