John Fagan v. Uznis Family Limited Partnership, 331695

On Feb 18, 2014, at ~9:30 p.m., plaintiff slipped on a patch of black ice on a sidewalk at defendant’s apartment clubhouse while returning to his car after dropping rent into a drop box; he suffered serious injuries.
Plaintiff sued defendant (owner/operator/manager) for negligence and alleged statutory violations (citing MCL 554.139 and MCL 125.536), but did not allege in the complaint that he was defendant’s tenant or attach a lease.
Defendant moved for summary disposition under MCR 2.116(C)(8) and (10), arguing (1) plaintiff was not defendant’s tenant so MCL 554.139 did not apply, and (2) defendant lacked actual or constructive notice of the ice and the condition was open and obvious.
At deposition plaintiff could not identify the exact date of the fall, could not say how long the ice had existed, did not see the ice until after he fell, and had no knowledge of prior complaints or snow-removal activities; he later attached a lease on appeal that was not in the lower-court record.
The trial court granted summary disposition for defendant; the Court of Appeals reviewed de novo and affirmed, holding plaintiff failed to show he was a tenant for the statutory claim and failed to establish defendant had notice of the ice.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Applicability of MCL 554.139 (landlord duties)	Fagan argued statutory landlord duties applied (defendant owned the premises)	Uznis/defendant contended plaintiff was not defendant’s tenant and complexes were separately owned	Court: MCL 554.139 did not apply because plaintiff did not plead or prove he was defendant’s tenant; summary disposition proper
Notice of hazardous condition (actual knowledge)	Fagan argued defendant had notice of the ice	Defendant argued it had no actual knowledge and no complaints were made; plaintiff did not see the ice prior to falling	Court: No evidence of actual notice; plaintiff did not see ice until after fall; summary disposition proper
Constructive notice (existence/length of condition)	Fagan argued constructive notice because snow/ice was present that day	Defendant argued no proof of how long ice existed and no evidence of conditions suggesting notice	Court: Plaintiff failed to show ice existed long enough or was observable; no constructive notice established
Sufficiency of record / amendment on appeal	Fagan relied on a lease attached to his appeal brief to prove tenancy	Defendant relied on deposition testimony showing distinct corporate ownership of complexes; lower-court record lacked lease	Court: May not expand record on appeal; trial court record lacked lease so (C)(8)/(C)(10) dismissal stands; plaintiff never moved to amend pleadings below

Dalley v. Dykema Gossett, 287 Mich. App. 296 (discussing de novo review of summary disposition)
Corley v. Detroit Bd. of Ed., 470 Mich. 274 (pleadings-only review under MCR 2.116(C)(8))
Quinto v. Cross & Peters Co., 451 Mich. 358 (evidentiary review and inferences under MCR 2.116(C)(10))
West v. Gen. Motors Corp., 469 Mich. 177 (definition of genuine issue of material fact)
Mullen v. Zerfas, 480 Mich. 989 (statutory duties under MCL 554.139 arise from lease relationship)
Benton v. Dart Props., Inc., 270 Mich. App. 437 (statutory construction principles)
Jahnke v. Allen, 308 Mich. App. 472 (premises-liability duty of landowner to invitees)
Hoffner v. Lanctoe, 492 Mich. 450 (landowner liability when possessor knows or should know of dangerous condition)
Lowrey v. LMPS & LMPJ, Inc., 500 Mich. 1 (notice element; defendant need only show plaintiff’s insufficient proof at summary disposition)
Detroit Leasing Co. v. City of Detroit, 269 Mich. App. 233 (party may not expand record on appeal)