Recovery Denied Under Open and Obvious Danger

Plaintiff was injured when she tripped over chipped tiles at the top of the flight of stairs at her rental apartment and fell down the stairs.  The apartment building was owned by the Royal Oak Housing Commission.  She filed suit not against the owner, but against the company hired by the owners to maintain the property.  Her suit alleged  negligence under the common law as well as  under the Michigan Housing Law, MCL 125.401, and under a statute which sets forth covenants in leases, MCL 554.139.  The Court of Appeals affirmed the dismissal of her case. The Court of Appeals held that the statutes cited did not give her a cause of action because MCL 125.401 sets forth duties of an owner, while she filed suit against the maintenance company.  The Court held that 554.139 did not apply, because it imposes covenants, which are contractual in nature, and thus cannot support a negligence action.  Finally, the Court of Appeals held that her common-law negligence claim failed because the chipped tiles were open and obvious.  The open and obvious doctrine is a defense wherein, if  the average user with ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection, recovery is denied.     Since plaintiff testified that she was aware of the broken tile and used the stairs anyway, the defense applied.  It is important to note that the evidence revealed that the chipped tiles were on only about 25% of the width of the stairs; thus the remaining 75% of the top of the stairs did not have chipped tiles.   If the entire width of the top of the stairs was chipped and if that was the only way down, Plaintiff's negligence claim might  have survived.

What This Means For Tenants:

If a tenant is injured by defects in rental premises. the tenant should carefully choose who to file suit against. Here, the tenant's statutory cause of action was denied because she did not sue the owner of the apartment.  She filed suit only against the maintenance company.  Further, bring as many causes of action as you can.  Here, if the tenant had included a breach of contract action against the landlord, her claim under MCL 554.139 likely would not have been dismissed.   Consultation with an attorney before filing suit should guard against inadvertently missing relevant causes of action.that can provide recovery.

You can read this opinion here.

Authored by Barbara A. Assendelft