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Slips and Falls by Co-owners on the Common Elements of Condominiums: Who, If Anyone, Is Liable?

by | Aug 19, 2022 | Firm News |

On February 1, 2022, in Janini v London Townhouses Condo Ass’n,[1] the Michigan Court of Appeals (“COA”) held that a co-owner of a condominium unit could not bring a premises liability action for a slip and fall that occurred on the common elements of the condominium because he was not a licensee or invitee, but a co-owner of the common elements of the condominium project.

In making its decision, the COA relied on its 2015 decision in Francescutti v Fox Chase Condo Ass’n.[2] which held that a co-owner of a condominium could not bring a premises liability case pursuant to MCL 554.139, which requires a lessor or a licensor to keep the common areas of a premises fit for its intended use and to keep the premises in reasonable repair, among other things. In Francescutti, the COA determined that because the condominium association did not lease the common areas to Mr. Francescutti, he was not a “lessor” of the land and therefore, MCL 554.139 does not apply. The COA also determined that Mr. Francescutti was not a licensee or invitee on the common elements because he was not on the “land of another” when the injury occurred, he was on land in which he had an ownership interest. Because he was not on the land of another when the injury occurred, the condominium association owed him no duty under a premises liability theory. “Rather, any duty owed to plaintiff by defendant must arise either from principles of general negligence or breach of contract.”[3] The COA then determined that the “negligence” claim state by Mr. Francescutti in his complaint was really a premises liability claim, not a general negligence claim and that Mr. Francescutti failed to identify any specific contract language in support of his breach of contract claim. Notably, the co-owner in Janini did not make a claim for breach of contract in his complaint against the condominium association.

The co-owner in Janini asked the Michigan Supreme Court (“MSC”) to address the COA’s decision. On June 29, 2022, the MSC entered an order directing the clerk to schedule oral arguments on the application for leave to appeal and for the  parties to specifically address:

whether the Court of Appeals correctly held in [Francescutti], that a co-owner of a condominium unit, who slipped and fell on an icy, snow-covered sidewalk located in a common area of the development, was neither a licensee nor an invitee, and thus, there was no duty owed to the co-owner by the condominium association under the principles of premises liability.

The MSC invited the Michigan Association of Justice, the Michigan Defense Trial Counsel, the Negligence Section of the State Bar of Michigan, and the Real Property Law Section of the State Bar of Michigan to file briefs amicus curiae. As of the date this blog was published, no hearing date had been set. This matter is of great significance to condominium associations and those who own units in them. Tilchin & Hall, P.C. will continue to monitor this matter as it progresses. Please check back with this blog post for links to updates.

It is clear that if you are a co-owner and injured on the common elements of the condominium, you should consult not only with an attorney that handles personal injury cases, but also with an attorney that is knowledgeable in the area of condominium law. Tilchin & Hall, P.C. has over 30 years of experience advising condominium associations and co-owners on their rights and duties under the law and condominium governing documents. Please reach out to us at (248) 349-6203 or email us using the form below.

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[1] Janini v London Townhouses Condo Ass’n, unpublished opinion per curium of the Court of Appeals, issued February 1, 2022 (Docket No. 355191).

[2] Francescutti v Fox Chase Condo Ass’n, 312 Mich App 640; 886 NW2d 891 (2015)

[3] Francescutti, at 643.