Ordinary negligence; Premises liability; Contractor duty; Common-law duty to avoid unreasonable risk of harm; Breach; Comparative fault; MCL 600.2957; MCL 600.2959; Residential leases; Common areas; MCL 554.139(1)(a); Allison v AEW Capital Mgt, LLP; Fit for the use intended by the parties; Elderly & disabled tenants; Summary disposition; MCR 2.116(C)(10); Kandil-Elsayed v F & E Oil, Inc

The court held that genuine issues of material fact existed as to whether defendant-contractor breached its common-law duty to plaintiff and whether defendant-property manager breached MCL 554.139(1)(a). Plaintiff fractured her ankle when she stepped into an uncovered, unmarked trench near her apartment building’s trash-disposal area. The trial court granted summary disposition to the contractor (Westveld) and the property manager (Red Oak). The Court of Appeals affirmed. On appeal, the court first held that plaintiff’s claim against Westveld sounded in ordinary negligence, not premises liability, because Westveld no longer possessed or controlled the area when plaintiff fell, and the claim was based on Westveld’s alleged failure to conform its conduct to an applicable standard of care. The court explained that ordinary-negligence claims arise from a duty to conform one’s conduct to a standard of care when “undertaking an activity.” It then found a jury could conclude Westveld created an unreasonable risk of harm by digging the 10-foot-long, four-inch-deep trench and leaving it uncovered and unmarked after departing the property, especially where Westveld’s owner acknowledged the trench could pose a tripping hazard and testified workers typically marked such conditions with cones or caution tape. The court rejected reliance on plaintiff’s own knowledge and conduct because those facts related to comparative fault and did “not establish, as a matter of law,” that Westveld acted with due care. The court next held that a factual issue existed as to Red Oak’s statutory covenant because MCL 554.139(1)(a) required Red Oak to ensure elderly and disabled tenants had reasonable access to dispose of trash. The court noted that the apartment complex “held itself out as specifically housing elderly and disabled tenants.” Given evidence the trench remained uncovered and unmarked, no warnings or visual aids were installed, and the area was allegedly underlit, a jury could find the hazard rendered the trash-disposal area unfit for the use intended by the parties. The court clarified that the “[m]ere inconvenience” language from Allison is not the controlling test, and that the starting point remains whether the common area was “fit for the use intended by the parties.” Reversed and remanded.

Justice Thomas concurred in part and dissented in part. She agreed that fact questions existed on plaintiff’s negligence claim against Westveld, but disagreed that a fact question existed under MCL 554.139(1)(a) as to Red Oak. In her view, the majority wrongly treated the covenant of fitness as equivalent to whether a condition created an “unreasonable risk of harm” and blurred the covenant of fitness with the covenant of reasonable repair.

Justice Bolden dissented, joined by Justice Zahra. She would have affirmed summary disposition for both Westveld and Red Oak. As to Westveld, she concluded plaintiff’s claim sounded in premises liability because the injury was caused by a condition of the land, and Westveld owed no duty because it lacked possession and control after completing its work nine days earlier. She also reasoned that even under ordinary-negligence principles, a contractor’s common-law duties are tied to the “execution of its undertakings,” not an indefinite period after the work is complete. As to Red Oak, she would have applied Allison’s “[m]ere inconvenience of access” rule because there were multiple ways to reach the dumpster, plaintiff knew of the trench, and she had previously avoided it.