Michigan Supreme Court

Lansing, Michigan

Bridget M. McCormack,

 Chief Justice

David F. Viviano,

Chief Justice Pro Tem

Stephen J. Markman

Brian K. Zahra

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh,

Justices

Order 

March 8, 2019

158361

STEVEN THOMPSON,

Plaintiff-Appellee,

v SC: 158361

COA: 333755 

Livingston CC: 15-028662-NO

ANN GIBSON,

Defendant-Appellant. 

_________________________________________/

On order of the Court, the application for leave to appeal the July 24, 2018 

judgment of the Court of Appeals is considered, and it is DENIED, because we are not 

persuaded that the question presented should be reviewed by this Court.

MARKMAN, J. (dissenting). 

I respectfully dissent from this Court’s order denying leave to appeal. In my 

judgment, the Court of Appeals’ decision represents a fundamental misunderstanding of 

the common law of this state with regard to the duty imposed on landlords. More 

specifically, the panel’s analytical errors improperly render landlords liable for defects in 

leased premises that arise after the tenants have taken possession of the premises. The 

duty to discover such defects rests primarily on the premises possessor, i.e., the tenant, 

rather than the landlord, as the tenant is better situated to discover such defects than the 

landlord is. Because I believe that the Court of Appeals improperly shifted the duty to 

discover defects that arise during the tenant’s possession of the premises from the tenant 

to the landlord, I would reverse.

In this case, plaintiff, Steven Thompson, signed a one-year lease to reside in a 

home owned by defendant, Ann Gibson. Approximately 10 months after signing the 

lease, plaintiff was injured while sweeping debris off the back deck of the home, which 

was within the leased premises. Plaintiff placed his left hand on the rail to sweep the 

debris off the edge and the rail “freely gave way.” In an affidavit, plaintiff averred that 

the rail was completely detached from the post, had no visible nails, and had a hole where 

it appeared a nail had once been. Plaintiff did not notice the defect in the rail before the 

injury occurred, and neither plaintiff nor the previous tenant notified defendant about a 

problem with the rail. Plaintiff sued for nuisance and also brought a negligence claim 

under a premises-liability theory. The trial court granted defendant’s motion for 

summary disposition on both counts, but the Court of Appeals reversed with respect to 

the negligence claim. Thompson v Gibson, unpublished per curiam opinion of the Court 
2

of Appeals, issued August 8, 2017 (Docket No. 333755) (Thompson I). This Court 

vacated the part of the Court of Appeals judgment addressing premises liability and 

remanded to that court to address this Court’s decision in Lowrey v LMPS & LMPJ, Inc, 

500 Mich 1 (2016). Thompson v Gibson, 501 Mich 1087 (2018). On remand, the Court 

of Appeals once again reversed the trial court, concluding that genuine issues of material 

fact precluded summary disposition of plaintiff’s negligence claim. Thompson v Gibson 

(On Remand), unpublished per curiam opinion of the Court of Appeals, issued July 24, 

2018 (Docket No. 333755) (Thompson II).

The issue is whether plaintiff has raised a genuine issue of material fact that 

defendant (the landlord) possessed constructive notice of the defect that injured plaintiff 

during his lease of the property. As this Court recently explained:

A premises owner breaches its duty of care when it “knows or should know 

of a dangerous condition on the premises of which the invitee is unaware 

and fails to fix the defect, guard against the defect, or warn the invitee of 

the defect.” [Lowrey, 500 Mich at 8, quoting Hoffner v Lanctoe, 492 Mich 

450, 460 (2012).]

Accordingly, to establish a negligence claim based on premises liability, a plaintiff must 

show that the premises owner had “actual or constructive notice of the dangerous 

condition.” Id. at 10. Because it is undisputed here that defendant did not possess actual 

notice of the defect, the determinative question is whether there is a genuine issue of 

material fact that defendant possessed constructive notice, i.e., whether “the hazard was 

of such a character, or had existed for a sufficient time, that a reasonable premises 

possessor would have discovered it.” Id. at 11-12. 

The Court of Appeals noted that a landowner possesses a duty to “ ‘inspect the 

premises and, depending upon the circumstances, make any necessary repairs or warn of 

any discovered hazards,’ ” Thompson II, unpub op at 4 n 3, quoting Stitt v Holland 

Abundant Life Fellowship, 462 Mich 591, 597 (2000), and then held that a reasonable 

jury could conclude that defendant should have discovered the defect in the rail upon 

reasonable inspection, id. at 5-7. If the injury in this case had occurred in a retail 

commercial context, I might well agree with that conclusion. However, the Court of 

Appeals seemingly failed to recognize the significance of the lease of the property to the 

constructive-notice inquiry.1 “ ‘Premises liability is conditioned upon the presence of 

 

1 This failure may have been caused, in part, by the Court of Appeals’ published decision 

in Grandberry-Lovette v Garascia, 303 Mich App 566 (2014), overruled in part on other 

grounds by Lowrey, 500 Mich at 10 n 1, a decision the Court of Appeals in the instant 

case cited in its opinion. In Grandberry-Lovette, the defendant leased his home through a 

county-operated program to several persons with disabilities. Id. at 570. The plaintiff, 

who worked as a healthcare aide to assist the residents, was injured when she fell after a 
3

both possession and control over the land.’ ” Orel v Uni-Rak Sales Co, Inc, 454 Mich 

564, 566 (1997) (citation and emphasis omitted); see also Bailey v Schaaf, 494 Mich 595, 

608 (2013) (stating that “the element of control forms the basis of imposing a duty to 

invitees”). In the context of a landlord’s duty to his or her tenants, we explained more 

than 50 years ago:

The element of control is of prime importance. The common-law duty is 

predicated upon the concept that a lease is equivalent to a sale. The lessor, 

absent agreement to the contrary, surrenders possession and holds only a 

reversionary interest. Under such circumstances, he is under no obligation 

to look after or keep in repair premises over which he has no control. 

An exception to the general lack of obligation is that a landlord has a 

duty to keep in safe condition any portion of a building under his control. 

The duty extends to a tenant’s invitees. [Lipsitz v Schechter, 377 Mich 685, 

687-688 (1966) (citations omitted), superseded in part by MCL 

554.139(1)(b).]

Subsequent cases have reaffirmed this principle, holding that “[t]he landlord is not liable 

for injuries that occur within the boundaries of the leased premises,” Williams v 

Cunningham Drug Stores, Inc, 429 Mich 495, 499 n 10 (1988), and that

a landlord’s duty does not extend to the areas within a tenant’s leasehold, 

because the landlord has relinquished its control over that area to the tenant. 

This relinquishment of control extinguishes the landlord’s duty of 

reasonable care over those areas. [Bailey, 494 Mich at 609 n 36 (citations 

omitted).] 

This is because “ ‘after leasing and surrendering the premises to the tenant the landlord 

loses all control over them,’ ” and “ ‘liability for an injury due to defective premises 

ordinarily depends upon power to prevent the injury and therefore rests primarily upon 

him who has control and possession.’ ” Sholberg v Truman, 496 Mich 1, 10-11 (2014) 

 

step on the stairs leading to the porch broke. Id. at 570-571. In analyzing whether the 

landlord had constructive notice of the defect on the stairs, the Court of Appeals noted a 

premises possessor’s duty to inspect the premises without considering the possibility that 

the landlord no longer had a duty to inspect in light of the lease of the property. See id. at 

573-580. To the extent that the panel here followed the lead of Grandberry-Lovette when 

it failed to recognize the significance of the lease to the constructive-notice inquiry, this 

is a consequential error and one that is likely to redefine the common law in the realm of 

landlord tort liability.
4

(citations omitted). Accordingly, defendant’s common-law duty to inspect the premises 

ended when plaintiff signed the lease.2

It appears that this Court has not expressly addressed the inference arising from 

the leasing of premises concerning whether a landowner possesses constructive notice of 

a defect. Nevertheless, the implication seems fairly straightforward to me: because a 

landlord has no duty to inspect when the premises are being leased, the landlord 

necessarily possesses constructive notice of a defect within the leased premises only if he 

or she should have known of the defect before leasing the property.3 If, however, the 

defect only arose (or became readily apparent) after leasing the property, the landlord 

would not have reason to know of the defect unless by some other means specifically 

informed of it. To hold otherwise would effectively shift responsibility from those in 

possession and control of the property (the tenants) to those who no longer have such 

possession and control, in contradiction of well-established common-law principles. By 

entering into a leasing agreement, plaintiff accepted primary responsibility for the 

condition of the property during the term of the lease, which includes the duty to discover 

and to report to the landlord defects arising during the term of that lease. See Sholberg, 

496 Mich at 10-11.

As relevant to this case, the nature of the defect—an “unanchored or loosely 

anchored safety railing on a back deck that ‘gave freely’ and [did so] almost instantly the 

second [plaintiff] leaned against it,” Thompson II, unpub op at 5—certainly suggests that 

the defect had existed for some time before the injury occurred. However, there is no 

 

2 As recognized by the Court of Appeals in Woodbury v Bruckner (On Remand), 248 

Mich App 684, 696-697 (2001), this Court overruled part of Lipsitz’s reasoning in Mobil 

Oil Corp v Thorn, 401 Mich 306, 311-313 (1977), in which we held, relying on § 357 of 

the Second Restatement of Torts, that a lessor can be held liable in tort for a failure to 

repair leased premises during the term of the lease in accordance with the statutory 

covenant of reasonable repair in MCL 554.139(1)(b). However, MCL 554.139(1)(b) 

does not require the landlord to inspect the premises, see Raatikka v Jones, 81 Mich App 

428 (1978), and therefore one is only liable in tort under MCL 554.139(1)(b) “if he does 

not exercise reasonable care after he has had notice of the need of repairs,” 2

Restatement Torts, 2d, § 357, comment d, pp 242-243 (emphasis added). Thus, Lipsitz, 

along with Williams and Bailey, continue to support the proposition that a landowner’s 

duty to inspect the premises must generally end upon the leasing of property to another. 

3 Of course, a lessor would also be liable under Mobil Oil Corp if the tenant had informed 

the lessor of the defect or the lessor voluntarily inspected the premises and discovered the 

existence of a defect, yet failed to repair that defect. However, plaintiff here did not 

know of the existence of the defect before the injury occurred, let alone inform the 

landlord of the defect. Moreover, it is undisputed that defendant did not have actual 

knowledge of the defect before the injury occurred. 
5

evidence that the defect existed—let alone would have been apparent upon reasonable 

inspection—at the time the lease was signed. The defect could have arisen one week 

earlier, three months earlier, or five years earlier; the jury could only speculate that it had 

(or had not) arisen and was (or was not) readily apparent ten months before the injury 

occurred. While the party opposing a motion for summary disposition is entitled to all 

reasonable inferences that arise from the evidence, it may not defeat such a motion with 

mere speculation. Bernardoni v City of Saginaw, 499 Mich 470, 475 (2016). 

Accordingly, I would conclude that plaintiff, upon whom the burden of proof clearly 

rests, has failed to sufficiently demonstrate that there is a genuine issue of material fact 

that defendant was on constructive notice of the defect that caused plaintiff’s injuries. 

CONSEQUENCES

The common law reflects the practices and common sense of society. See, e.g., 

Gildersleeve v Hammond, 109 Mich 431, 438 (1896) (explaining that “sound reason, 

common sense, and common honesty . . . are the foundation of the common law”). 

Moreover, individual responsibility for one’s own safety remains a core tenet of the 

common law. See Hoffner, 492 Mich at 460 (recognizing that under the common law 

one has an “obligation to assume personal responsibility to protect [oneself] from 

apparent dangers”); Bertrand v Alan Ford, Inc, 449 Mich 606, 616-617 (1995) 

(recognizing “the overriding public policy of encouraging people to take reasonable care 

for their own safety”). The common-law rule that premises liability is “ ‘conditioned 

upon the presence of both possession and control over the land,’ ” Orel, 454 Mich at 568 

(citation and emphasis omitted), is altogether consistent with these principles of common 

sense and personal responsibility for at least two reasons. First, tenants who possess and 

control property will almost certainly be better situated to discover defects that arise 

during their tenancy than the landlord. As a result, it makes sense to apportion primary 

responsibility for discovering such defects to the tenant. Second, tenants who possess 

primary control over property will almost certainly be better situated to remedy an 

existing defect (or to call it to the attention of the landlord) and thus to prevent injury as a 

result of such a defect. By the act of leasing property, a landlord “ ‘surrender[s] the 

premises to the tenant’ ” and thereby “ ‘loses all [or significant] control over them.’ ” 

Sholberg, 496 Mich at 10 (citations omitted). 

In short, by signing a lease, a tenant accepts primary responsibility for the 

conditions of premises during the term of the lease because he or she is better positioned 

than the landlord to detect and remedy defects within the leasehold. It would make little 

sense to hold the landlord responsible for an injury that he or she could not have 

reasonably discovered or prevented, especially when the tenant is better positioned in

these regards. Such a result seemingly would do little to forestall future injuries while 

increasing the financial burdens upon landlords and indirectly upon their tenants, while
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

 March 8, 2019 

a0305

6

Clerk

also generating greater legal uncertainty and litigation. Because I believe that the instant 

result is unsupported by the reasonable application of the common law of this state, I 

would reverse the Court of Appeals judgment. 

ZAHRA, J., joins the statement of MARKMAN, J.

CAVANAGH, J., did not participate due to her prior relationship with Garan Lucow 

Miller, P.C.