-1-

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

GREGORY SMITH,

Plaintiff-Appellee,

UNPUBLISHED

February 27, 2018

v

AMBERDEEN VILLAGE ASSOCIATION and 

STAMPER & COMPANY,

No. 335511

Macomb Circuit Court 

LC No. 2015-002388-NO

Defendant-Third-Party PlaintiffsAppellants,

and 

AMBERDEEN VILLAGE, LLC,

Defendant-Third-Party Plaintiff,

and

MILLER LANDSCAPING, INC, 

Defendant-Third-Party Defendant.

Before: GLEICHER, P.J., and BORRELLO and SWARTZLE, JJ.

PER CURIAM.

In this slip-and-fall action, plaintiff sued defendants, Aberdeen Village Association (the 

Association) and Stamper and Company (Stamper), on statutory and common-law claims 

alleging that they did not timely clear the ice that caused plaintiff’s fall. Defendants moved for 

summary disposition, and the trial court denied the motion. Defendants appeal by leave granted.

We affirm in part and remand in part.

I. BACKGROUND

The facts of this case are straightforward. In late 2013, plaintiff resided in a 

condominium unit owned by his sister and paid her monthly rent. The condominium is located 

within the Amberdeen Village complex and is governed by the Association. Plaintiff’s sister 
-2-

was the sole owner of the condominium and was an owner-in-common of the complex’s 

common areas. Plaintiff did not hold any ownership interest in his sister’s condominium.

The Association contracted with Stamper to administer the complex. In turn, Stamper 

arranged for Miller Landscaping, Inc. (Miller) to perform snow-removal services at the complex, 

although the actual contract was between the Association and Miller.

Per Miller’s contract, Miller was to inspect the property regularly and clear snow anytime 

it accumulated more than 1.5 inches. Miller was to inform the Association when ice-removal or 

prevention services were necessary, but could not perform any services without Association 

approval. Miller agreed to hold harmless Stamper and the Association for “personal injuries as a 

result of snow and ice removal operations.”

 Stamper did not inspect the property except for an “annual spring walk through” to 

determine whether there was any exterior damage to the condominium units or grounds. 

Stamper did not have a manager or office at the condominium complex. Accordingly, residents 

or the Association would call Stamper at its office in Clinton Township to have work completed. 

Stamper occasionally called Miller to perform snow services when contacted by a resident or the 

Association; someone from the Association would also call on occasion. Both Stamper and the 

Association asserted that Stamper had no duty to inspect the property for snow or ice 

accumulation under Stamper’s contract with the Association. 

At the time of the slip and fall, plaintiff was employed as a limousine driver. After 

driving the previous evening, plaintiff returned from his shift at approximately 6:30 a.m. on 

December 20th. Plaintiff testified that he did not observe any icy conditions on his drive home.

Plaintiff parked his car in the parking lot outside his sister’s condominium and exited his vehicle. 

Plaintiff testified that he scanned the parking lot for snow and ice before exiting his vehicle, but 

did not see any. According to plaintiff, he then exited his vehicle, took approximately five steps 

from the vehicle, slipped, and fell on the ice. Plaintiff testified that he could not stand up, but 

instead crawled back to his vehicle and used it to help him stand up. Plaintiff realized that the 

parking lot “was all ice” when he could not stand up. Plaintiff testified that he then called his 

sister, who opened the garage door to let him into the condominium.

Plaintiff’s sister testified that, when she opened the garage door, she could see that the 

pavement in the parking lot was “shiny” although it was “kind of dark” and “hard to see.” When 

asked if the parking lot was “wet” or covered in ice, plaintiff’s sister responded, “It was cold 

enough I wouldn’t think it would just be wet.” Later that day, plaintiff’s sister took photographs 

of the area of the parking lot where plaintiff fell. The pictures show a parking lot covered in a 

light dusting of snow.

Plaintiff and his sister testified that there was no salt in the parking lot at the time of his 

fall. Plaintiff stated that the parking lot was dimly light, but that all the lights were functioning at 

the time of his fall. Plaintiff’s sister confirmed that the lighting was dim, but did not know 

whether the lighting was working properly. Neither plaintiff nor his sister could state whether 

there was any defect in the property that caused the ice to accumulate on the parking lot. Neither 

plaintiff nor his sister complained of the dim parking lighting to any management personnel. 

Similarly, before plaintiff’s fall, neither plaintiff nor his sister complained of any ice in the 
-3-

parking lot. Neither Stamper’s nor the Association’s records show that any resident complained 

of icy conditions in the parking lot on December 19th or 20th. 

Plaintiff testified that, as a result of the fall, he suffered a fracture to his right ankle, 

which required him to wear a walking boot and stay off of his right foot for three weeks. 

Plaintiff missed three weeks of work and, when he returned to work, he was placed on light duty

for three weeks, after which he returned to full duty. 

Plaintiff sued defendants alleging that he was an invitee of the condominium complex 

that defendants possessed or maintained and that defendants breached their common-law duty to 

maintain the premises in a reasonably safe fashion. Plaintiff further argued that defendants 

violated their statutory obligations to keep ice off of walkways under MCL 67.10 and to keep the 

parking lot fit for its intended use and in reasonable repair under MCL 554.139.

1

Defendants moved for summary disposition under MCR 2.116(C)(8) and (10). 

Defendants argued that, because plaintiff and his sister were tenants-in-common of the common 

areas of the complex, defendants did not own or possess the parking lot in which plaintiff fell 

and could not be liable for his injuries under this Court’s decision in Francescutti v Fox Chase 

Condominium Association, 312 Mich App 640; 886 NW2d 891 (2015). Moreover, defendants

argued that, because plaintiff could not prove that defendants had or should have had notice of 

the icy condition, plaintiff could not show that the defendants breached their duty to exercise 

reasonable diligence to remove that condition. Defendants also argued that plaintiff could not 

bring a claim of a violation of MCL 67.10 because that statute only pertains to sidewalks, not 

parking lots.

The trial court denied defendants’ motion for summary disposition. Although the trial 

court indicated that it was denying defendants’ motion, the trial court first concluded that

plaintiff’s claim under MCL 554.139 failed because that statute applied only to a “lessor” and the 

common areas here were not leased to the co-owners in the condominium complex. Neither 

party challenges this conclusion on appeal.

 Regarding plaintiff’s common law premises-liability claims, the trial court concluded 

that Francescutti did not apply. The trial court assumed that plaintiff was an invitee and noted 

that defendants had a duty, as possessors of the common areas of the complex, to exercise 

reasonable care to know the conditions present on the premises and to make the premises

reasonably safe for all invitees, including plaintiff. The trial court concluded that, by way of 

arguing that they could not have known of the icy condition on the parking lot, defendants 

conceded that the icy condition was not an open-and-obvious danger. Finally, regarding 

defendants’ argument that they could not be liable for plaintiff’s injuries because they had no 

notice of the ice, the trial court concluded that a question of fact remained on whether a more 

 1 Plaintiff dismissed his claims against Miller, although Miller remains a part of the case because 

of the other defendants’ third-party complaint against Miller. None of the remaining issues 

involving Miller are pertinent to this appeal. 
-4-

rigorous inspection regiment would have revealed the icy condition and whether defendants were 

negligent in failing to employ such a regiment. Accordingly, the trial court declined to dismiss 

the case.

Defendants moved for reconsideration, arguing that, under Francescutti, a condominium 

association owes a co-owner of a condominium unit no duty because the co-owner is neither an 

invitee nor a licensee due to the co-owner’s ownership interest in the common areas of the 

condominium complex. Defendants continued that, because plaintiff “was a tenant of his sister’s 

condominium . . . with the same possessory rights as the owner,” and because plaintiff’s sister 

was a co-owner of the common areas of the complex, plaintiff was neither an invitee nor a 

licensee to the complex and defendants owed plaintiff no duty of care. 

 The trial court concluded that plaintiff was renting from his sister and was not an owner 

of the condominium unit. Accordingly, the trial court found that plaintiff was not a co-owner of 

the common areas of the complex and that Francescutti did not apply. Therefore, the trial court 

denied the motion for reconsideration. This appeal followed.

II. ANALYSIS

This Court reviews de novo a trial court’s decision on a motion for summary disposition 

under MCR 2.116(C)(10). Hill v Sears, Roebuck and Co, 492 Mich 651, 659; 822 NW2d 190 

(2012). “Summary disposition is proper if the evidence, affidavits, pleadings, and admissions 

viewed in a light most favorable to the other party demonstrate that there is no genuine issue of 

any material fact and the moving party is entitled to judgment as a matter of law.” Auto-Owners 

Ins Co v Seils, 310 Mich App 132, 145; 871 NW2d 530 (2015).

On appeal, defendants first argue that they were entitled to summary disposition on 

plaintiff’s premises-liability claim. A plaintiff alleging a premises-liability claim must establish 

that (1) the defendant owed him a duty, (2) the defendant breached that duty, (3) the breach 

proximately caused the plaintiff’s injuries, and (4) the plaintiff suffered damages. Sanders v 

Perfecting Church, 303 Mich App 1, 4; 840 NW2d 401 (2013). 

Defendants Possessed and Controlled the Common Areas. Both possession of and 

control over the premises must be present in order to give rise to a duty of care regarding the 

premises. Sholberg v Truman, 496 Mich 1, 7-8; 852 NW2d 89 (2014). “Possession” is defined 

as “the right under which one may exercise control over something to the exclusion of all 

others.” Derbabian v S & C Snowplowing, Inc, 249 Mich App 695, 703; 644 NW2d 779 (2002)

(internal citation, quotation marks, and emphasis omitted). “[P]ossession for purposes of 

premises liability does not turn on a theoretical or impending right of possession, but instead 

depends on the actual exercise of dominion and control over the property.” Kubczak v Chemical 

Bank & Trust Co, 456 Mich 653, 661; 575 NW2d 745 (1998). In turn, “control” means the 

power to “manage, direct, or oversee” the property. Derbabian, 249 Mich App at 703-704

(internal citation and quotation marks omitted). 

Here, defendants each exercised authority to manage the common areas of the complex, 

including the parking lot. Indeed, the record evidence shows that, although the Association and 

Miller contracted for snow-removal services, both Stamper and the Association would contact 
-5-

Miller to perform such services. Under Miller’s agreement with the Association, Miller could 

not perform ice-removal or salting services without prior approval from one of the defendants. 

Moreover, the evidence appears to show that residents of the condominium complex exercised 

no independent authority over the common areas for the purpose of ice and snow removal. 

Rather than contacting Miller directly, residents would contact defendants when removal 

services were necessary. There is no evidence that any condominium owner—let alone a lessee 

like plaintiff—performed any snow services or had any authority to perform such services on the 

common areas of the complex. Accordingly, the record makes clear that defendants had 

sufficient possession and control over the common areas of the condominium complex to have 

some duty of care regarding those premises.

Francescutti Does Not Apply. Upon assuming possession and control of the premises, the 

premises possessor inherits certain duties of care regarding the premises. Those duties, however, 

do not extend equally to every person who may come upon the land. This principle is 

particularly applicable in the unique case of a condominium complex. 

In Francescutti, 312 Mich App at 641, the plaintiff, a co-owner of a condominium unit in 

the defendant condominium association’s development, slipped on an icy sidewalk located in 

one of the common areas of the development. The plaintiff sued the condominium association, 

arguing that plaintiff was an invitee to the development and that the association breached its duty 

of reasonable care to plaintiff in the inspection and repair of latent dangers. Id. at 641-642. The 

association argued that the plaintiff was a mere licensee, to which the association owed a lesser 

duty. Id. at 642. This Court disagreed with both parties and concluded that the plaintiff, as a coowner of common areas of the condominium development, was neither an invitee nor a licensee. 

Id. at 642-643. This Court noted that a “licensee is a person who is privileged to enter the land 

of another by virtue of the possessor’s consent, while an invitee is a person who enters upon the 

land of another upon an invitation.” Id. at 643 (internal quotation notation, footnote citation, and 

emphasis omitted). This Court reasoned that the plaintiff could not be an invitee or a licensee 

because he was present on land he owned, rather than on “the land of another.” Id. (internal 

quotation marks omitted). Accordingly, this Court concluded that, for the purposes of premises 

liability, the defendant association owed the plaintiff no duty of care. Id. 

Here, defendants argue that, under Francescutti, they did not owe plaintiff a duty 

because plaintiff did not enter “on the land of another.” Defendants acknowledge that plaintiff 

was not a legal owner of the condominium unit, but argue that plaintiff, as a tenant living in his 

sister’s unit, had the same possessory rights as his sister. Defendants, however, have not 

supported their argument with sufficient record evidence to warrant summary disposition. All 

that is in the record is that plaintiff leased from his sister a room in her individual condominium 

unit. There is nothing in the record to suggest that plaintiff enjoyed each and every right to 

possess and control that his sister had over her unit, let alone each and every right that she had to 

possess and control the complex’s common areas. Assertions are not evidence, and defendants 

offer nothing more than assertions at this point with regard to any possessory or control interests 

held by plaintiff. 

 By analogy, when an apartment landlord leases the possessory rights to an individual 

apartment, the landlord generally does not lease its full possessory interest in the common areas, 

though the lessees are generally entitled to use those areas. The interest imposes upon the 
-6-

landlord “a duty of care to keep the premises within their control reasonably safe from physical 

hazard.” Bailey v Schaaf, 494 Mich 595, 605; 835 NW2d 413 (2013). There is no suggestion 

that plaintiff’s sister included in the parties’ lease agreement—assuming that there is even a 

formal lease agreement—any interest in the common areas of the complex or that she had any 

right under the Association’s bylaws to do so. 

 Accordingly, because it is clear that plaintiff is not a co-owner of the common areas of 

the complex, and defendants have not shown that plaintiff enjoyed the same full set of 

possessory and control rights as a co-owner, we find that the trial court correctly determined that 

Francescutti is inapplicable to this case.

Remand Is Necessary to Determine the Impact of Lowrey on Plaintiff’s PremisesLiability Claim. Next, defendants do not challenge the trial court’s determination that the ice 

was not an open-and-obvious danger. Rather, defendants argue that they cannot be liable for 

plaintiff’s injuries because they had no actual or constructive notice of the icy conditions present 

in the parking lot. To show that defendants, as possessors of the property, breached a duty owed 

to plaintiff, plaintiff bears the burden of showing that defendants had actual or constructive 

notice of the icy conditions. See Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 10 and n 1; 890 

NW2d 344 (2016). To show notice, plaintiff must demonstrate that defendants knew about the 

icy conditions or should have known of the icy conditions because of their character or the 

duration of their presence. Id. at 10.

As explained above, the trial court rejected defendants’ argument because there was a 

question of fact on whether defendants undertook the type of inspection that a reasonably 

prudent premises possessor would exercise under similar circumstances to protect its invitees. In 

doing so, the trial court relied on this Court’s decision in Grandberry-Lovette v Garascia, 303 

Mich App 566; 844 NW2d 178 (2014). After the trial court issued its opinion, however, our 

Supreme Court issued its decision in Lowrey and rejected the requirement that a defendant 

present evidence of a reasonable-inspection regime to show a lack of constructive notice. 

Lowrey, 500 Mich at 9-10 and n 1. In doing so, Lowrey called into question the viability of 

Grandberry-Lovette moving forward. See id. at 10 n 1. Neither party addressed in its brief on 

appeal the impact of Lowrey on the trial court’s decision or plaintiff’s case-in-chief, other than a 

single citation by defendants for the proposition that a plaintiff must prove actual or constructive 

notice. Because we believe that this issue should be fully briefed with reference to the record, 

we remand the matter to the trial court with instructions that defendants be permitted to renew 

their motion for summary disposition on the notice element. MCR 7.216(A)(5).

Plaintiff’s Statutory Claim Is Misplaced. Finally, defendants argue that the trial court 

erred by not granting their motion for summary disposition regarding plaintiff’s claim under 

MCL 67.10. On appeal, defendants argue that they cannot be liable under MCL 67.10 because 

they did not have notice of the icy conditions. We need not address this argument because we 

agree with defendants’ argument before the trial court that MCL 67.10 is not applicable to this 

case. MCL 67.10 is a remedy by which a village council may recover the expenses it incurred in 

maintaining a public sidewalk passing through or abutting a private premises. This case involves 

neither a public sidewalk nor a village council, and MCL 67.10 is simply inapplicable. 

III. CONCLUSION
-7-

We affirm the trial court’s conclusion that Francescutti is inapplicable to plaintiff’s 

premises-liability claim. Because, after the trial court’s opinion was released, Lowrey called into 

question the trial court’s reliance on Grandberry-Lovette, we remand plaintiff’s premisesliability claim to the trial court so that the parties and the trial court may fully explore Lowrey’s 

impact, if any, on plaintiff’s claim. We conclude that defendants were entitled to summary 

disposition on plaintiff’s claim under MCL 67.10, and remand for entry of summary disposition 

to defendants on that claim. We do not retain jurisdiction.

/s/ Elizabeth L. Gleicher

/s/ Stephen L. Borrello

/s/ Brock A. Swartzle