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

ROBERT G. JENKIN, Personal Representative of the ESTATE OF KAREN PATRICE DROTAR,

Plaintiff

- Appellant, UNPUBLISHED January 25, 2024

v No. 363963 Wayne Circuit Court HICKORY WOODS CONDOMINIUM ASSOCIATION, INC., LC No. 19

- 012716

- NZ

Defendant

- Appellee.

Before: G ADOLA , C .J., and M URRAY and Y ATES , JJ.

P ER C URIAM

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Karen Patrice Drot a r met her demise on a common area of her condominium development when she attempted to save ducklings trapped in a standpipe. After she pried off a cover, she fell headfirst into the standpipe and drowned in a tragic accident. Addressing a premises liability claim asserted by her estate’s personal represen tati ve , the trial court awarded summary disposition under MCR 2.116(C)( 10) to defendant, Hickory Woods Condominium Association, Inc., based upon our ruling in Francescutti v Fox Chase Condo Ass’n , 312 Mich App 640; 886 NW2d 891 (2015). We held in that cas e that “a co

- owner of the common areas of [a condominium] development” cannot be either an invitee or a licensee for the purpose of asserting a premises liability claim. Id . at 643

. Because the trial court here correctly invoked that legal principle to f oreclose plaintiff’s premises liability claim, we affirm.

I. FACTUAL BACKGROU ND

In 2003, Ms. Drotar bought a unit in the Hickory Woods c ondominium development . As

a condominium owner, she had “ undivided and inseparable rights to share with other Co

- owners the Common Elements of the Condominium Project. ” The common elements of the condominium development included a r etention pond located behind Ms. Drotar ’ s unit . The retention pond had

a standpipe fitted with a re

- rod cover. The storm water drai nage system was considered a general common element, and the responsibility for th at system belonged to defendant, the association of

co

- owners.- 2

-

In the summer of 2019, Ms. Drotar was found wedged headfirst inside the standpipe with the upper part of her b ody submerged in water and her legs sticking out of the standpipe. The re

rod cover had been placed to the side of the standpipe and a snow shovel was on the ground nearby. Ms. Drotar was pronounced dead at the scene. An autopsy revealed she died from d rowning . The manner of death was deemed accidental. Although there were no witnesses to Ms. Drotar ’ s death, circumstantial evidence suggest ed she was trying to rescue ducklings from the standpipe and lost her balance in the process.

On September 20, 2 019, p laintiff filed suit against defendant setting forth premises liability and negligence claims. The complaint alleged that the standpipe cover was supposed to be secured with three bolts around its outer band to prevent removal of the standpipe withou t tools, but the bolts were “ deteriorated and rusted and no longer intersected with the grooves on the standpipe to prevent the removal of said lid, ” leaving it easily removable. Two of defendant’s board members testified in depositions that Ms. Drotar qu ite likely removed the cover herself. Coincidentally, the standpipe had been photographed the day before Ms. Drotar drowned during an inspection of the water level in the pond, and the cover was in place at that time. The board members reasoned that Ms. Drotar likely used the snow shovel as leverage to lift the heavy cover off the standpipe.

J ust before trial was scheduled to begin, defendant moved for summary disposition under MCR 2.116(C)(10), contending that plaintiff ’ s premises liability claim must f ail for want of a duty according to the holding in Francescutti , 312 Mich App 640

, that an owner of a condominium unit injured on a common area of the development is not “ on the land of another ” and, therefore, cannot be an invitee or a licensee to whom a duty of care is owed under premises liability law. In a ruling announced from the bench on November 8, 2022, t he trial court agreed that Francescutti was on point and grant ed defendant ’ s motion. Plaintiff has appeal ed that ruling. 1

II. LEGAL ANALYSIS

P laintiff argues that Francescutti is factually distinguishable and d oes not support an award of summary disposition to defendant

. T he validity of Francescutti is currently under consideration by our Supreme Court in Janini v London Townhouses Condo Ass’n , 509 Mich 1072 (2022). 2 At this point, however, Francescutti remains binding precedent. To be sure, we need not afford the precedential effect mandated by M CR 7.215(C)(2) to a case that is factually distinguishable. First of Mich Corp v Trudeau , 2 37 Mich App 445, 450; 603 NW2d 116 (1999). But w e conclude that this case is not factually distinguishable from Francescutti
, so we must affirm

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We review a trial court ’ s decision on a motion for summary disposition de novo

. Mecosta Co Med Ctr v Metro G roup Prop & Cas Ins Co , 509 Mich 276, 282; 983 NW2d 401 (2022). An

1 Defendant’s challenge to the premises liability claim in 2022 was its second motion for summary disposition on that claim. The trial court had awarded summary disposition to defendant on the negligence claim in June 2021, but had denied summary dispositi on to defendant on the premises liability claim at that time. The negligence claim does not appear to be at issue on this appeal.

2 On November 8, 2023, our Supreme Court heard a mini oral argument on an application for leave to appeal in that case.- 3

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award of s ummary disposition under MCR 2.116(C)(10) is appropriate when the moving party is entitled to judgment because there exists no genuine issue of material fact. Citizens for Higgi ns Lake Legal Levels v Roscommon Co Bd of Comm ’ rs , 341 Mich App 161, 177; 988 NW2d 841 (2022). “ When considering such a motion, a trial court must consider all evidence submitted by the parties in the light most favorable to the party opposing the motion. ” El

- Khalil v Oakwood Healthcare, Inc , 504 Mich 152, 160; 934 NW2d 665 (2019). “ ‘ A genuine issue of material fact exists when the record leaves open an issue upon which reasonable minds might differ. ’ ” Id

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N egligence actions, “ including those based on premises liability, require a plaintiff to prove four essential elements: duty, breach, causation, and harm.” Kandil

- Elsayed v F & E Oil, Inc , 512 Mich 95, 110; ___ NW2d ___ (2023). In the context of premises liability, the defen dant ’ s duty arises from its role “ ‘ as an owner, possessor, or occupier of land. ’ ” Jeffrey

- Moise v Williamsburg Towne Houses Coop, Inc , 336 Mich App 616 , 626 ; 971 NW2d 716 (2021 ). The initial inquiry in such a dispute is what duty the defendant owed to the plaintiff, Hoffner v Lanctoe , 492 Mich 450, 460; 821 NW2d 88 (2012), which is dictated by the plaintiff ’ s status on the land as either an invitee,

a licensee, or a trespasser

. Kandil

- Elsayed

, 512 Mich at 111

. A n invitee typically “ enters the land of another ” by invitation, wh ile a licensee “ enters the land of another ” by consent

, and a trespasser

“ enters upon another ’ s land ” without permission. Jeffrey

- Moise , 336 Mich App at 627 & n 2.

The plaintiff in Francescutti sustained injuries in a slip

- and

- fall accident that occurred on a sidewalk in his condominium development. Francescutti , 312 Mich App at 641

. Th e trial court construed the plaintiff ’ s negligence claim as sounding in premises liability and awarded summar y disposition to the defendant condominium association under the now

- abrogated open

- and

- obvious danger doctrine. Id . at 641

- 642. Addressing the parties ’ disagreement on appeal as to whether the plaintiff should be treated as an invitee or a licensee, thi s Court found the answer by turning to the definitions of those terms, both of which required the visitor to be on “ the land of another. ” Id

. at 643 . (quotation marks omitted). Th is Court noted that the plaintiff “ did not enter on ‘ the land of another ’ ” because the plaintiff “ is, by his own admission, a co

- owner of the common areas of the development. ” Id . Indeed, the plaintiff “ acknowledge [d] that the condominium owners are

co

- owners as tenants in common of the common areas of the development. ” Id

. Therefore, because the plaintiff was “ neither a licensee nor an invitee, there was no duty owed to plaintiff by defendant under premises liability. ” Id

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The trial court here found Francescutti directly on point and awarded summary disposition to defendant because Ms. Drotar was both a condominium owner and a member of defendant, so she “ had an undivided, inseparable right to share, with the other co

- owners, the common elements of the condominium project. ” Plaintiff characterizes this dispute as factually distinguishable from Francescutti , which was decided on the basis of the plaintiff ’ s concession that he was a co

- owner as a tenant in common of the common elements within the development (including the sidewalk), whereas Ms. Drotar never recei ved title to the common elements. Instead, she held only a right to

“ share ” in the common elements, which remained in the sole possession and control of defendant. According to plaintiff, Ms. Drotar ’ s rights to the common elements were far more limited t han the rights held by a tenant in common, so basic principles of premises liability law support imposing a duty of care on defendant.

We find no merit in plaintiff’s at tempt to distinguish Francescutti

. The distinction plaintiff draws is not grounded in facts, but instead based on t he analysis this Court employed to reach the- 4

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outcome. Because the plaintiff in Francescutti “ acknowledge[d] that condominium owners are

co

- owners as tenants in common of the common areas of the development [

, ] ” id

., this Court did not have any reason to delve into the law or explain why that understanding of the law was correct

. Nevertheless, we can infer that the Francescutti Court agreed that the co

- owner of a condominium unit owns common areas as tenants in common with the owners of other condominium units within the development. Although Francescutti d id not cite legal authority to support that conclusion, it served as the primary basis for the dec ision in that case, so that conclusion canno t be disregarded merely because plaintiff disagrees with the legal foundation for the holding.

Moreover, this Court recently distinguished Francescutti in Jeffrey

- Moise , 336 Mich App
at 628

- 632, suggesting that the rights held by a condominium owner with respect to common areas are unique for purposes of premises liability. The plaintiff in that case was a member and a resident of a housing cooperative at which she slipped and fell on a community walkway. Id . a t 620

- 621. The defendant housing cooperative, relying on Francescutti , argued that it was entitled to summary disposition because the plaintiff was not on “the land of another” when she fell. Id . at 628 . Th is Court regarded the distinction between the l egal relationships in a condominium development and

a housing cooperative sufficient to render Francescutti inapplicable, concluding that “ there is little support for the conclusion that ” the plaintiff, as a member of the housing cooperative

, “ owned the land on which she fell. ” Id . at 631

. Notably, in reaching that decision , th is Court recognized that the owner s of condominium unit s take legal title to their unit s and that such title is accompanied by a right to share common elements with other owners. Id . at 630

- 631.

Here, Ms. Drotar acquired title to her condominium unit by a warranty deed that convey ed not only the condominium itself , but also “ rights in general common elements and limited common elements ” as set forth in the “M aster D eed ” and the Condominium Act , MCL 559.101 et seq . The master deed, in turn, provided that each condominium co

- owner “ shall have an exclusive right to his or her Unit and shall have undivided and inseparable rights to share with other Co

- owners the Common Elements of the Condominium Project. ” Those broad rights differ significantly from the more limited rights granted to the plaintiff in Jeffrey

- Moise , 336 Mich App at 631

- 632. Therefore, although we found distinguishing features of ownership in Jeffrey

- Moise that ren dered the decision in Francescutti inapplicable to that case, id . at 632 , we can find no principled basis to distinguish Francescutti from the situation of Ms. Drot a r, who owned a condominium unit as well as “ rights in general common elements and limited common elements” of the condominium development. Thus, like the trial court, w e conclude that Francescutti is directly on point, so we have no latitude
to circumnavigate that binding precedent. MCR 7.215(C)(2) ( “ A published opinion of the Court of Appeal s has precedential effect under the rule of stare decisis. ” ). Accordingly, we must uphold the trial court’s award of summary disposition to defendant under MCR 2.116(C)(10).

Affirmed

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/s/ Michael F. Gadola /s/ Christopher M. Murray /s/ Christopher P. Yates