Tenant injury from a falling kitchen cabinet; Premises liability; Common law duty; Control over the leased premises; Bailey v Schaaf; Distinguishing Mobil Oil Corp v Thorn; 2 Restatement Torts, 2d, § 357; Notice of the defect; Statutory duty under MCL 554.139; Leave to amend the complaint

The court held that defendant-landlord was properly granted summary disposition of plaintiff-tenant’s common law premises liability claim arising from a falling kitchen cabinet. But the trial court abused its discretion when it failed “to address plaintiff’s request for leave to amend her complaint” to raise a statutory premises liability claim under MCL 554.139. As to the common law claim, while “a landlord owes a duty to tenants to keep areas under its control reasonably safe, that duty does not extend to areas leased to the tenant, over which the landlord has relinquished control.” In this case, the kitchen “was within plaintiff’s exclusive leasehold, not a common area under defendant’s control. The lease provisions” confirmed this. She argued that defendant nonetheless owed her a duty under Mobil Oil, which adopted 2 Restatement Torts, 2d, § 357. But in that case, “the plaintiff landlord had a contractual obligation to repair the tenant’s roof.” In this case, “the lease agreement established plaintiff was responsible to ‘keep the fixtures in the house or on or about the leased premises in good order and repair,’ and that defendant was responsible for ‘major maintenance.’ Cabinets and their mounting fasteners are fixtures. Maintenance and routine repairs remain with the tenant under” the lease. Plaintiff did not identify any “evidence that the cabinet condition was a ‘major’ repair within the lease’s meaning.” While she pointed “to defendant’s deposition statement that he considered himself ‘responsible’ for cabinets and did not expect plaintiff to repair them, and that he had previously arranged a cabinet repair[,]” the court found that “occasional voluntary repairs or the landlord’s right of entry do not equal a contractual covenant to keep the entire premises in repair. The Restatement standard is contractual and cannot be satisfied by ad hoc repairs or a general practice.” The court also concluded the trial court did not err in ruling “that defendant did not have actual or constructive notice of the defective cabinet.” However, while plaintiff’s common law premises liability claim failed, “MCL 554.139 provides a separate avenue for recovery” and her claim under this statute “does not require her to establish actual or constructive notice.” Affirmed in part, reversed in part, and remanded for the trial court to specifically address her request to amend.