In a case greatly benefitting condominium associations in “slip and fall" cases, the court of appeals determined that a co-owner is neither an invitee nor a licensee for determining whether the association had a duty of care.
In Francescutti v Fox Chase Condo. Assn, a co-owner slipped an fell on an icy, snow-covered sidewalk and broke his wrist. He sued the association alleging both negligence and breach of contract.
Because both an invitee and a licensee are privileged to enter the “land of another,” and because a co-owner is a joint owner, with the other co-owners, of the general and limited common elements, a co-owner is not entering the land of another, but his own land when he enters the condominium premises. One cannot maintain a premises liability against oneself.
The court also held that MCLA §554.139, which imposes a duty on a lessor of property to maintain it in reasonable repair, does not apply to the association: it is not a lessor within the plain meaning of the statute. Thus the associaiton did not breach any duty under this statute by failing to remove snow and ice.
Finally, the court held that, because there was no provision in the condominium documents requiring the association to remove snow or ice, there was no breach of contract on which the co-owner could base a claim.
The opinion is a published opinion, meaning it is binding on lower courts.
Note: the Michigan Court of Appeals again ruled that a condominium association is not a lessor under MCL §554.139 in Ramic v Sali, an unpublished opinion issued on February 1, 2022. The court has also reaffirmed that a co-owner of a unit may not bring a premises liablity claim against the condominium association in Janini v London Townhouses Condominium Association, an unpublished opinion issued on the same date.