Court of Appeals Holds Michigan Supreme Court Decision Operates Retroactively

Gabrielson v The Woods Condominium Association Inc.

• Opinion Published: January 4, 2024 (Jansen, P.J., and Cavanaugh and Gadola, JJ.)

• Court of Appeals Docket Nos. 364809; 364813

• Author: Judge Mark J. Cavanagh

Holding: The Michigan Supreme Court’s recent decision in Kandil-Elsayed v F & E Oil, Inc, __ Mich ___; ___ NW2d ___ (2023) and Pinsky v Kroger Co of Mich., ___ Mich ___; ___NW2d ___ (Docket Nos. 162907 and 163430) operates retroactively and applies to all cases currently pending on direct appeal. Because ­Kandil-Elsayed applies to this case, the trial court erred in granting summary disposition to defendant Rita Sayre under Kandil-Elsayed. However, the trial court did not err by granting summary disposition to the remaining defendants.

Facts: Plaintiff rents a room from and lives with Defendant Sayre in The Woods Condominium complex. Plaintiff and Sayre’s unit shares a carpeted front door and landing with Defendants Kolicki, Hirvela, and Schultz. The landing has a single step up from a sidewalk leading to it, and loosely adhered a rubber strip to secure the carpet in place.

On June 4, 2020, Plaintiff tripped over the rubber strip while holding onto a handrail leading up to the landing and front door. Plaintiff sustained several injuries, including fractured bones and torn ligaments in her wrist, a hematoma near her eye, and injured ribs, elbow, and shoulder. Plaintiff sued The Woods and its managing company, J.P. Caroll, under multiple theories, including premises liability. Following several notices of nonparty fault, Plaintiff amended her complaint to include Sayre, Kolichi, Hirvela, and Schultz as Defendants.

All Defendants sought summary disposition under MCR 2.116(10). Sayre, Kolichi, and Hirvela argued that the step, landing, and rubber strip were an open and obvious condition. The Woods and J.P. Caroll argued that they did not owe Plaintiff a duty because (1) the unit owners were responsible for the carpet on the step and landing, (2) the conditions were open and obvious, and (3) they did not have a lease agreement with Plaintiff. Plaintiff opposed the motions, but the trial court granted all Defendants summary disposition. Plaintiff appealed the order dismissing her claims against Sayre, The Woods, and J.P. Carroll.

Key Appellate Rulings:

The Michigan Supreme Court’s decision in Kandil-Elsayed, holding that the open and obvious nature of a danger must be analyzed as part of the defendant’s breach and plaintiff’s comparative fault, is applied retroactively.

While this case was pending, the Michigan Supreme Court decided Kandil-Elsayed, which overturned Lugo v. Ameritech Corp, Inc, 464 Mich 512; 629 NW2d 384 (2001) insofar as Lugo held that the open and obvious danger doctrine must be analyzed under the element of duty. Rather, according to Kandil-Elsayed and Pinsky, that doctrine must be analyzed under the element of breach. Thus, the Court of Appeals was required to determine whether the new rule applies retroactively to this case and other pending cases. The Court of Appeals held that is does.

Michigan recognizes a general rule that judicial decisions are given complete retroactive effect, but there are limited exceptions to that general rule. Under Pohutski v. Allen Park, 465 Mich 675; 641 NW2d 219 (2002), in deciding whether to apply a judicial decision retroactively, the court must first address a threshold issue of whether the decision establishes a new principle of law. Here, the Supreme Court overruled two decades of precedent under Lugo, so that threshold was satisfied. Further, the Court must consider the purpose of the new rule, the extent of reliance on the old rule, and the effect of retroactivity on the administration of justice. Here, the Court determined that moving the consideration of open and obvious from duty to breach (i.e., from a question of law to a question of fact) serves the purpose of restoring consistency across Michigan’s negligence jurisprudence. The Court also noted that the Kandil-Elsayed decision would not result in undue hardship because Kandil-Elsayed itself clarifies decades of uncertainty and unclear standards. Finally, applying Kandil-Elsayed to this case and other pending cases would afford claimants the same rights in premises liability cases as in other negligence cases. Thus, Kandil-Elsayed should operate retroactively and apply to all cases currently pending on direct appeal.

Defendants Sayre, The Woods, and J.P. Carroll owed Plaintiff a duty because they share possession and control of the step and landing, but a question of fact exists whether Sayre breached her duty of care under Kandil-Elsayed.

Although the trial court did not answer whether Sayre, The Woods, and J.P. Carroll had possession and control of the property, the Court of Appeals held that Plaintiff provided adequate legal authority and evidence to establish that Sayre, The Woods, and J.P. Carroll shared possession and control of the step and landing and owed Plaintiff a duty in premises liability. As a co-owner of a unit in the complex, Sayre had some degree of possession and control of the landing. Further, under the condominium association's bylaws, The Woods and J.P. Carroll were responsible for insuring against claims of bodily injury arising from the ownership and maintenance of common elements, such as the step and landing. Thus, all Defendants had some amount of limited possession and control of the landing. Sayre owed Plaintiff the duty of an invitee because she leased her space to Plaintiff, and The Woods and J.P. Carroll owed Plaintiff the duty of a licensee because Plaintiff was a guest of Sayre in a common area.

Nevertheless, The Woods and J.P. Carroll did not breach their duty under Kandil-Elsayed because, as licensors, neither of them had a duty to act regarding dangers known to Plaintiff. However, a question of material fact exists regarding whether Sayre breached her duty to Plaintiff to inspect the premises and make necessary repairs to the step and landing. Thus, the trial court erred by granting summary disposition to Sayre.

Judge Gadola authored a concurring opinion.