If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

ALVENA LLOYD,

Plaintiff-Appellant,

UNPUBLISHED

February 1, 2022

v No. 356055

Kent Circuit Court

MILLBROOK APARTMENTS, LLC, 

Defendant, 

and

MILLBROOK APTS 2, LLC, MILLBROOK APTS 

3, LLC, MILLBROOK APTS 4, LLC, 

MILLBROOK APTS 7, LLC, and MILLBROOK 

APTS, LLC,

LC No. 2019-010243-NO

Defendants-Appellees.

Before: GADOLA, P.J., and SWARTZLE and CAMERON, JJ.

PER CURIAM.

Plaintiff, Alvena Lloyd, appeals as of right the order of the trial court granting defendants, 

the Millbrook Apartments, LLCs, summary disposition under MCR 2.116(C)(10). We affirm.

I. FACTS

In January 2019, plaintiff was a tenant living at Millbrook Apartments in Grand Rapids. 

While walking to her car on the morning of January 15, 2019, plaintiff slipped and fell on the 

sidewalk of the apartment complex, allegedly injuring her back. Plaintiff testified that she did not 

see any snow or ice on the sidewalk, but she saw snow on the grass and felt ice on the sidewalk 

after she fell. The apartment’s maintenance worker testified that on the morning of plaintiff’s fall,

he shoveled and salted the sidewalks and that they were not icy. The apartment’s property 

manager, who responded to the scene of plaintiff’s fall, also stated that she had no difficulty 

walking down the sidewalks that morning and that the sidewalks had been salted. The property 
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manager took two photographs of the scene; one showed plaintiff lying on the ground, and one 

showed salt on the sidewalk near the location of the fall.

Plaintiff initiated this lawsuit against defendants seeking damages for her injury and related 

losses under MCL 554.139 and also under a theory of common law premises liability. Defendants 

moved for summary disposition under MCR 2.116(C)(10), asserting that there was no genuine 

issue as to any material fact and that they were entitled to judgment as a matter of law. The trial 

court granted defendants’ motion, finding that there was no evidence that the sidewalk was not fit 

for its intended purpose as required by the statute and that the alleged black ice was an open and 

obvious condition, thus precluding common-law premises liability. Plaintiff now appeals. 

II. ANALYSIS

Plaintiff contends that the trial court erred by holding that defendants are not subject to 

liability under MCL 554.139 nor under a theory of premises liability. We disagree.

A. STANDARD OF REVIEW

We review de novo a trial court’s decision to grant or deny a motion for summary 

disposition. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). A 

motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim, 

and is warranted when there is no genuine issue as to any material fact, and the moving party is 

entitled to judgment as a matter of law. Id. at 160. When reviewing a motion for summary 

disposition under MCR 2.116(C)(10), we consider the documentary evidence submitted by the 

parties in the light most favorable to the nonmoving party. Id. A genuine issue of material fact 

exists when the record leaves open an issue upon which reasonable minds might disagree. Johnson 

v Vanderkooi, 502 Mich 751, 761; 918 NW2d 785 (2018). We also review de novo questions of 

statutory interpretation, Vermilya v Delta College Bd of Trustees, 325 Mich App 416, 418; 925 

NW2d 897 (2018), and the trial court’s determination whether a duty exists. Hill v Sears, Roebuck 

& Co, 492 Mich 651, 659; 822 NW2d 190 (2012). 

B. MCL 554.139

Plaintiff contends that defendants violated MCL 554.139(1)(a) because the sidewalk was 

not fit for its intended use and violated MCL 554.139(1)(b) because the sidewalk was not in 

reasonable repair. We disagree.

MCL 554.139(1) imposes a duty upon a lessor or a licensor of residential premises. “The 

statutory protection under MCL 554.139(1) arises from the existence of a residential lease and 

consequently becomes a statutorily mandated term of such lease.” Allison v AEW Capital Mgt, 

LLP, 481 Mich 419, 425; 751 NW2d 8 (2008). MCL 554.139 provides, in relevant part: 

(1) In every lease or license of residential premises, the lessor or licensor 

covenants:

(a) That the premises and all common areas are fit for the use intended by 

the parties. 
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(b) To keep the premises in reasonable repair during the term of the lease or 

license, and to comply with the applicable health and safety laws of the state and 

of the local unit of government where the premises are located, except when the 

disrepair or violation of the applicable health or safety laws has been caused by the 

tenants wilful or irresponsible conduct or lack of conduct.

When determining whether liability exists under MCL 554.139(1)(a), we first ascertain 

whether the area in question is a common area, and if so, the intended use of the common area. 

Estate of Trueblood v P&G Apartments, LLC, 327 Mich App 275, 289; 933 NW2d 732 (2019). 

We then determine if there exists “reasonable differences of opinion regarding whether the 

conditions made the common area unfit for its intended use.” Id. (Quotation marks omitted). 

Under MCL 554.139(1)(a), “common areas” are areas of a property shared by two or more tenants 

over which a lessor retains control. Allison, 481 Mich at 427. Sidewalks within an apartment 

complex are common areas and a landlord therefore has a duty under MCL 554.139(1)(a) to keep 

the sidewalks fit for their intended use. Benton v Dart Props, 270 Mich App 437, 442-444; 715 

NW2d 335 (2006). The intended use of the sidewalk in this case, simply put, was to walk on it. 

See Estate of Trueblood, 327 Mich App at 290. The remaining question, then, is whether the 

alleged presence of black ice on the sidewalk where plaintiff fell rendered the sidewalk unfit for 

its intended use of being walked upon. See id. 

In Allison, our Supreme Court scrutinized MCL 554.139(1)(a) in a case involving the 

accumulation of snow and ice in an apartment parking lot. After concluding that the parking lot 

was a common area, id. at 428, the Court explained that ice does not render a common area unfit 

for its intended use if the ice creates a “mere inconvenience of access.” Id. at 430. Our Supreme 

Court reasoned:

While a lessor may have some duty under MCL 554.139(1)(a) with regard 

to the accumulation of snow and ice in a parking lot, it would be triggered only 

under much more exigent circumstances than those obtaining in this case. The 

statute does not require a lessor to maintain a lot in an ideal condition or in the most 

accessible condition possible, but merely requires the lessor to maintain it in a 

condition that renders it fit for use as a parking lot. Mere inconvenience of access, 

or the need to remove snow and ice from parked cars, will not defeat the 

characterization of a lot as being fit for its intended purposes. [Id. at 430.] 

Thus, an accumulation of ice or snow must be more than a “mere inconvenience” before it renders 

the sidewalk unfit for its intended use. Estate of Trueblood, 327 Mich App at 290. This Court has 

held that a sidewalk completely covered with ice represents more than a mere inconvenience 

because anyone walking on the sidewalk would be forced to walk on ice. Id. at 290-291. A 

landlord has no duty to maintain a sidewalk in an “ideal condition,” however. See Allison, 481 

Mich at 430. 

In this case, plaintiff argues that on the day she fell, defendants did not keep the sidewalk 

fit for its intended purpose because they failed to salt it, resulting in plaintiff falling on black ice. 

The record supports the trial court’s finding that the sidewalk was a common area under MCL 

554.139(1)(a), and that the intended use of the sidewalk was to walk on it to access other areas. 

Defendants therefore had a duty to ensure that the sidewalk was fit for that intended purpose. See 
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Estate of Trueblood, 327 Mich App at 290. Here, the evidence did not establish a genuine issue 

of material fact regarding whether the sidewalk was fit for its intended purpose. The record 

indicates that the sidewalk was not completely covered with ice, and in fact the photographs show 

little or no accumulation of ice or snow in the area where plaintiff fell. See Estate of Trueblood, 

327 Mich App at 290. Plaintiff testified that she was able to walk from the apartment exit down 

one sidewalk before turning down another sidewalk and that she never saw any ice or snow on the 

sidewalk before she fell. Defendants presented evidence that the sidewalk had been salted the 

morning that plaintiff fell and a photograph shows salt on the sidewalk near the area of the fall. 

Viewing the evidence in the light most favorable to plaintiff, the evidence indicates that the patch 

of black ice upon which she slipped created only an inconvenience of access to the sidewalk but 

did not render the sidewalk unfit for its intended purpose. See Allison, 481 Mich at 428. 

Accordingly, the trial court did not err by granting defendants’ motion for summary disposition of

plaintiff’s claim that defendants violated MCL 554.139(1)(a).

Plaintiff also argues that defendants violated MCL 554.139(1)(b) by failing to keep the 

sidewalk in reasonable repair. Again, we disagree. MCL 554.139(1)(b) imposes a duty upon the 

lessor or licensor to keep the premises in reasonable repair. The term premises as used in that 

statutory section does not include common areas, Allison, 481 Mich at 432, and does not apply to 

keeping property free from snow and ice accumulation. Id. at 432 n 6. Therefore, the duty to 

repair “premises” under MCL 554.139(1)(b) does not apply to the sidewalk in this case. 

Accordingly, the trial court did not err by granting defendants summary disposition of plaintiff’s 

claim that defendants violated MCL 554.139(1)(b).

C. PREMISES LIABILITY

Plaintiff also contends that the trial court erred by holding that the open and obvious 

doctrine barred her premises liability claim against defendants. We disagree.

Michigan law distinguishes between a claim of ordinary negligence and a claim premised 

on a condition of the land. Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 692; 822 

NW2d 254 (2012). When, as in this case, a plaintiff alleges injuries arising from a dangerous 

condition on the land, i.e., black ice on a sidewalk, the claim is one of premises liability rather than 

ordinary negligence. See id. at 692. In a premises liability action, as in any negligence action, the 

plaintiff must establish the elements of negligence, Goodwin v Northwest Michigan Fair Ass’n, 

325 Mich App 129, 157; 923 NW2d 894 (2018), but liability arises from the defendant’s duty as 

an owner, possessor, or occupier of land. Buhalis, 296 Mich App at 692. To establish a prima 

facie case of negligence, a plaintiff must demonstrate that (1) the defendant owed a duty to the 

plaintiff, (2) the defendant breached that duty, (3) the plaintiff suffered damages, and (4) the 

defendant’s breach caused the damages. Composto v Albrecht, 328 Mich App 496, 499; 938 

NW2d 755 (2019).

The duty a possessor of land owes to a person who enters upon the land depends upon 

whether the visitor is classified as an invitee, a licensee, or a trespasser. Stitt v Holland Abundant 

Life Fellowship, 462 Mich 591, 596-597; 614 NW2d 88 (2000). Here, the parties do not dispute 

that plaintiff was an invitee. The possessor of land owes an invitee the duty to use reasonable care 

to protect the invitee from an unreasonable risk of harm posed by a dangerous condition on the 

premises. Estate of Livings v Sage’s Investment Group, LLC, ___ Mich ___, ___; ___ NW2d ___ 
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(2021) (Docket No. 159692); slip op at 5. The possessor of the premises breaches that duty of care 

when he or she knows or should know of a dangerous condition on the premises of which the 

invitee is unaware, and fails to fix, guard against, or warn the invitee of the defect. Lowrey v LMPS 

& LMPJ, Inc, 500 Mich 1, 8; 890 NW2d 344 (2016). 

A premises possessor is not an absolute insurer of the safety of an invitee, however; the 

premises possessor’s duty does not extend to open and obvious dangers. Estate of Livings, ___ 

Mich at ___; slip op at 5; Jeffrey-Moise v Williamsburg Towne Houses Cooperative, Inc, ___ Mich 

App ___, ___; ___ NW2d ___ (2021); slip op at 6. The open and obvious doctrine is based on the 

strong public policy that people should take reasonable care for their own safety. Id., citing

Buhalis, 296 Mich App at 693-694. A premises possessor is thus not obligated to take 

extraordinary measures to keep people safe from reasonably anticipated risks, and does not owe a 

duty to protect from, or warn of, dangers that are open and obvious because “such dangers, by their 

nature, apprise an invitee of the potential hazard, which the invitee may then take reasonable 

measures to avoid.” Hoffner v Lanctoe, 492 Mich 450, 461; 821 NW2d 88 (2012).

Whether a dangerous condition is open and obvious “depends on whether it is reasonable 

to expect that an average person with ordinary intelligence would have discovered it upon casual 

inspection.” Id. The court does not consider whether a particular plaintiff should have realized 

that the condition was dangerous, but rather whether an average person in that position would have 

foreseen the danger. Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710, 713; 737 

NW2d 179 (2007). Although a question of fact may arise regarding the openness and obviousness 

of a condition, see Estate of Livings, ___ Mich at ___; slip op at 5, the open and obvious doctrine 

is not an exception to the duty owed by the premises possessor, but instead is an integral part of 

that duty; thus, the application of the open and obvious doctrine is part of the question of duty that 

is a question of law for the court to decide. Hoffner, 492 Mich at 476. With respect to ice, the 

court considers “whether the ice was visible on casual inspection or whether there were other 

indicia of a potentially hazardous condition that would impute knowledge.” Buhalis, 296 Mich 

App at 694.

A narrow exception to the open and obvious doctrine exists when a “special aspect” of the 

open and obvious condition makes the risk unreasonable, thereby obligating the premises 

possessor to take reasonable steps to protect invitees from unreasonable risk of harm. Hoffner, 

492 Mich at 461. A special aspect of an open and obvious condition is found if the danger is 

effectively unavoidable, or if it is unreasonably dangerous. Estate of Livings, ___ Mich at ___; 

slip op at 5. A condition that is common or avoidable is not considered uniquely dangerous. 

Hoffner, 492 Mich at 463. Absent a special aspect, the duty of a premises owner or possessor does 

not extend to open and obvious dangers. Estate of Trueblood, 327 Mich App at 285. 

In this case, plaintiff alleges that she slipped and fell on black ice that was not visible to 

her upon casual inspection. There were, however, significant indicia that imputed knowledge such 

that it is reasonable to expect that an average person in plaintiff’s position would have foreseen 

the danger, including plaintiff’s observation of snow on the grass, plaintiff’s substantial familiarity 

over 45 years with Michigan winters and black ice, plaintiff’s testimony that she walked carefully

down the sidewalk that morning as a result of the icy conditions, and the apparent presence of salt 

in the area near where plaintiff fell. Together, this evidence shows that an average person of 

ordinary intelligence in plaintiff’s situation would have been alerted to the possibility of black ice
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and would have discovered it upon casual inspection. Because there is no genuine issue of material 

fact regarding whether the black ice was open or obvious, the trial court did not err by granting 

defendants summary disposition of plaintiff’s premises liability claim. 

Affirmed.

/s/ Michael F. Gadola

/s/ Brock A. Swartzle

/s/ Thomas C. Cameron