This is an interesting case if only for the colloquy between the majority opinion and Judge Shapiro’s dissent.
The facts are unremarkable. Plaintiff was a residential tenant living in an apartment owned by the defendant. Several other tenants lived in separate apartments in the same structure. A common area (driveway / pathway) was accessed by all the tenants to dispose of their trash in trash bins located outside the dwelling.
Plaintiff injured herself when falling upon ice and snow accumulation on the narrow, singular pathway that led to the trash bins. She filed suit alleging common-law premises liability and a failure to maintain the premises on the part of the landlord under MCL 554.139 (the “fit for its intended use” provision under the Landlord-Tenant Act).
The circuit court granted the landlord’s motion for summary disposition, ruling that the condition was open and obvious under the common-law defense to a premises liability claim, and, further, that the landlord breached no duty under MCL 554.139.
In a 2-1 decision (Whitbeck and Saad in the majority; Shapiro in dissent), the Court of Appeals affirmed. Affirming the trial court’s disposition of the common-law claim and addressing the statutory claim, the majority held that as long as the common area was reasonably fit for its intended use and purpose, there was no breach under MCL 554.139. The majority also injected a concept from the common-law open and obvious doctrine, reasoning that in Michigan one can expect common areas open to the elements to be affected by accumulations of snow and ice and ideal conditions for access and use are not to be required.
Judge Shapiro raises some interesting points in his dissent. First, he points out that the act of which MCL 554.139 is a part is to be “liberally construed” according to the Legislature’s own mandate: MCL554.139(3). Next, Judge Shapiro argues that the Supreme Court’s decision in Allison v. AEW Capital Mgt. LLP, 481 Mich. 419 (2008), which the majority here viewed as dispositive to deny Plaintiff’s claim, actually contained the important caveat that where a review of the record and facts demonstrates that the common area was reasonably fit for its intended use and/or purpose, then an appellate court can make the determination, but the question is one of “fact” in the first instance, and therefore, should be left to the discretion of the fact-finders, i.e., the jury. Moreover, Judge Shapiro points out that the question must be considered in light of the legislative mandate to liberally construe the provision, which is, in this case, a liberal or expansive reading of the landlord’s duty to keep the common areas fit for their intended use. He concludes that it is presumptuous to believe that the Supreme Court would usurp the legislature’s mandates by injecting common law defenses concerning “open and obvious” and “premises liability” into the statutory duties found in the residential Landlord-Tenant Act.
In my judgment, Judge Shapiro has a point. While the majority of the current Supreme Court is loathe to “liberally” or “strictly” construe any statutory provision, without more, the fact that the Legislature explicitly mandates such construction in my judgment requires precisely such a reading.
If the end result of that means that common law defenses to statutory duties are not available upon a reading of the duty-imposing provision, then this is the way the statute should be interpreted and applied. As Judge Shapiro concludes: “[r]eaching this conclusion does not mean that  plaintiff is entitled to a judgment against the defendant; only that under the law established by the Legislature she is entitled to her day in court and to have this factual questions determined by a fact-finder.”
The entire opinion can be read here: Rousaki v. Souliotis