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### STATE OF MICHIGAN

COURT OF APPEALS

ABDALLA QAMER,

Plaintiff-Appellant, UNPUBLISHED August 9, 2016

v No. 327462 Macomb Circuit Court VICTOR L CASSAR MANAGEMENT, L.L.C., LC No. 2014-002012-NO

Defendant-Appellee.

Before: M URPHY , P.J., and S TEPHENS and B OONSTRA , JJ.

P ER C URIAM

. Plaintiff appeals by right the opinion and order of the trial court granting summary disposition in favor of defendant under MCR 2.116(C)(10) and th e opinion and order of the trial court denying plaintiff’s moti on for reconsideration under MCR 2.119(F). We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

This premises liability case arises out of plaintiff’s Februar y 2014 slip and fall on an exterior sidewalk located at an apartment building owned by def endant. At the time of his fall, and since October 2012, plaintiff was residing in a one-bedroom apartment leased from defendant by Nadheer Abdulateef. The 2011 rental agreement bet ween Abdulateef and defendant, the terms of which were incorporated by reference in to a December 1, 2013 lease, provided that “[o]nly one adult was to occupy the premises” and that if additional persons were to live with Abdulateef, Abdulateef was required to notify defe ndant, obtain permission, and pay an additional $35 per month per person. Further, Abdulateef ex ecuted an “On Time Rent Payment Addendum” in 2011, which stated that in return for a $1 00 reduction in rent, Abdulateef agreed, among other things, that “[n]o other persons shall occupy the unit other than those listed on the origin al rental agreement.”

Barbara Khamo, apartment manager and employee of defendant, te stified at her deposition that she believed Abdulateef was the sole occupant o f the apartment in February 2014. Khamo testified that she ne ver received notice that plai ntiff was staying in Abdulateef’s apartment and never received any rent payments from plaintiff. Plaintiff never signed a lease and never completed any paperwor k with defendant indicating his residency in the apartment. Plaintiff testified at his deposition that he only stayed at th e apartment because Abdulateef allowed him to do so; in fact, after plaintiff’s fall, when Abd ulateef’s cousin needed a place to-2- stay, Abdulateef told plaintiff that he needed to find other li ving arrangements; plaintiff moved out in March 2014. Plaintiff testif ied that he paid rent money to Abdulateef and that Abdulateef paid the rent to defendant. Abdulateef never paid additional m onies to defendant for having plaintiff live with him, nor doe s it appear that he received pe rmission from defendant for plaintiff to move into the apartment in 2012.

On the date of the fall, plaintiff left his apartment at 5:00 a.m. and walked down the sidewalk toward his car. He slipped on snow on the sidewalk, s uffering injuries to his ankle requiring surgery. Plaintiff testified that snow was present t he previous evening at 5:00 p.m. when he returned to the apartment, and that the condition of th e sidewalk was approximately the same in the morning as it had be en the previous evening. The a partment building had two entry/exit doors, both of which led to exterior sidewalks leadi ng to a parking area. Plaintiff testified that he never checke d the other door and sidewalk for snow before leaving that morning.

Plaintiff filed suit, alleging negligence, premises liability, and nuisance. 1 Defendant moved for partial summary dispos ition on the issue of whether p laintiff was a “tenant” such as would give rise to a statutory d uty by defendant under MCL 554. 139. Defendant later moved for summary disposition on the remainder of plaintiff’s claims, arg uing that the hazard that caused plaintiff’s fall was open and obvious.

After a hearing on defendant’s motions for summary disposition , the trial court issued an opinion and order holding that plaintiff’s claims sounded in pr emises liability, not ordinary negligence, and that plaintiff was not a “tenant” under MCL 554 .139 and thus could not sustain an action for violation of M CL 554.139. The trial court furthe r found that the hazard that caused plaintiff’s fall was open a nd obvious with no special aspects. The trial court thus dismissed all of plaintiff’s claims and granted summary disposition in favor of defendant under MCL 2.116(C)(10).

Following the grant of summary disposition, plaintiff moved th e trial court for reconsideration, arguing that de fendant had failed to provide w eather logs as requested in plaintiff’s March 30, 2015 discover y request, and that the tria l court’s grant of summary disposition consequently resulte d in a palpable error. Plainti ff argued that the logs were crucial in establishing that defendant was aware of the hazard of snow accumulation on the sidewalks. The trial court denied the motion, noting that the grant of sum mary disposition to defendant was based not on defendant’s lack of notice of the weather conditio ns, but on the open and obvious nature of the danger.

This appeal followed. On appe al, plaintiff does not challenge the trial court’s characterization of his claim as sounding in premises liability , but rather argues that the trial court erred by determining that he was not a tenant and further by determining that the hazard

1 Although the trial court never sp ecifically made reference to plaintiff’s nuisance claim, it did dismiss plaintiff’s case in the entirety. Plaintiff does not c hallenge on appeal the dismissal of his nuisance claim.-3- was open and obvious. Plaintiff also argues that the trial cou rt erred by failing to grant reconsideration.

II. STANDARD OF REVIEW

We review de novo a trial court’s decision on a motion for sum mary disposition. Moser v Detroit , 284 Mich App 536, 538; 772 NW2d 823 (2009). Summary disposit ion is proper under MCR 2.116(C)(10) if “there is no genuine issue as to any materi al fact, and the moving party is entitled to judgment . . . as a matter of law.” “A genuine iss ue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.” West v Gen Motors Corp
, 469 Mich 177, 183; 665 NW2d 468 (2003). We consider the affidavits, pleadings, depositions , admissions, and other documentary evidence in the light most favorable to the nonmovi ng party. Liparoto Constr, Inc v Gen Shale Brick, Inc , 284 Mich App 25, 29; 772 NW2d 801 (2009). All reasonable inf erences are to be drawn in favor of the nonmovant. Dextrom v Wexford County , 287 Mich App 406, 415; 789 NW2d 211 (2010). A genuine issue of material fact exists w hen the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds could differ. Allison v AEW Capital Mgt, LLP , 481 Mich 419, 425; 751 NW2d 8 (2008).

We review for an abuse of discretion a trial court’s decision on a motion for reconsideration. Woods v SLB Prop Mgt, LCC , 277 Mich App 622, 629; 750 NW2d 228 (2008).

III. STATUTORY DUT Y UNDER MCL 554.139

Plaintiff argues that the trial c ourt erred by finding that de fendant owed no statutory duty to plaintiff under MC L 554.139. We disagree.

MCL 554.139 statutorily imposes, in every lease of residential premises, certain covenants by the lessor to keep common areas fit for the use in tended by the parties to the lease, and to keep the premises in reasonable repair. See Allison , 481 Mich at 426. A breach of one of these covenants is construed as a breach of the lease and suppo rts a claim for damages based on breach of contract. Id

. Because the duty is contractual in nature, the open and obvious defense is not available to bar a plaintiff’s claim for its breach. Royce v Chatwell Club Apts , 276 Mich App 389, 397; 740 NW2d 547 (2007).

However, because MCL 554.139 establishes duties that exist bet ween contracting parties, a lessor owes no duty under MC L 554.139 to a social guest of a tenant or other non-parties to the lease agreement. Mullen v Zerfas , 480 Mich 989, 990; 742 NW2d 114 (2007). Our Supreme Court was very clear when it s tated that “a non-tenant could ne ver recover under [MCL 554.139] because a lessor has no contract ual relationship with—and there fore, no duty under the statute to—a non-tenant.” Allison , 481 Mich at 431.

Plaintiff argues that MCL 554.139 provides that a landlord owe s a duty to any occupant or resident of its property. Plaintiff is mistaken. In the fi rst instance, plaintiff’s citation to O’Donnell v Garasic , 259 Mich App 569; 676 NW2d 213 (2003), ignores the fact that the decision was abrogated on this precise issue by Mullen , 480 Mich at 990 (“The Court of Appeals in O’Donnell v Garasic , 259 Mich App 569; 676 NW2d 213 (2003), erred by indicating th at-4- MCL 554.139(1) establishes a duty on the part of owners of leas ed residential property to invitees or licensees generally.”). Further, plaintiff notes t hat a section of the housing law of Michigan, MCL 125.401 et seq., provides that “any occupant” may maintain an action against an owner for violation of the housing laws under certain circumsta nces. MCL 125.536 (1). The relevance of this is unclear, as plaintiff did not bring a clai m against defendant under the housing law of Michigan, and made no attempt to satisfy the required el ements of MCL 125.536(1). For example, plaintiff did not present proof that he had provided d efendant with notice of the alleged “unsafe, unsanitary, or unhealth ful” condition and that defenda nt had “failed thereafter to make the necessary corrections.” Id

. Further, the phrase “any occupant” does not appear in MCL 554.139; rather, the statute makes repeated reference to th e parties to the lease. The Legislature’s use of different t erms in statutes generally sugg ests different meanings. United States Fidelity Ins & Guaranty Co v Mich Catastrophic Claims Ass’n ( On Rehearing ), 484 Mich 1, 14; 795 NW2d 101 (2009). In any event, our Supreme Court ha s made it clear that an action under MCL 554.139 is only available to parties to a lease. Mullen , 480 Mich at 990.

Plaintiff further argues that he had an implied lease with def endant. We disagree. Evidence presented to the trial court indicated that plaintiff did not pay rent to defendant, nor had anyone completed any documentation that could be interpreted as memorializing a lease agreement between plaintiff and defendant. 2 Plaintiff left the apartme nt when Abdulateef told him he needed to move out, and does not appear to have given an y sort of notice to defendant regarding his moving. Further, what documentation was presente d at trial indicates that defendant believed Abdulateef resi ded in the apartment alone; i n fact defendant granted Abdulateef a reduction in rent in return for his promise that h e was the apartment’s sole occupant. Although plaintiff argues that Khamo allowed him to store a vehicle on the property, an isolated favor done by an age nt of defendant to plaintiff do es not indicate that defendant was aware of, and acquiesced to, an o ral leasehold contract with pl aintiff that created a landlordtenant relationship, or that sucha contract was created by imp lication. See Grant v Detroit Ass’n of Women’s Clubs , 443 Mich 596, 604-606; 505 NW2d 254 (1993); see also City of Huntington v City of Oak Park , 311 Mich App 96, 119; 847 NW2d 664 (2007) (noting that an imp lied contract must satisfy the elements of mutual assent and consideration). We agree with the trial court that plaintiff could not pursue a cl aim for defendant’s violation of its statutory duties under MCL 554.139. MCR 2.116(C)(10); West
, 469 Mich at 183.

2 Plaintiff asserts on appeal that Abdulateef informed Khamo in 2013 that plaintiff was living with him. A letter to that effect does appear in the lower cou rt record, although Khamo denied receiving any such notice that plaintiff was living in the apar tment. In any event, the letter does not mention adding plaintiff to the lease and bears only the si gnature of Abdulateef. Even viewing the evidence in the light most favorable to plaintiff, we do not find that this letter from a third party could reasonably be interpreted as creating a lease agreement between plaintiff and defendant; at best, this letter merely indicates that defendant was aware that plaintiff was a guest of Abdulateef in 2013. No evidence was presented to the trial court indicating that Abdulateef possessed the authority to enter i nto contracts on behalf of ei ther plaintiff or defendant. See Hess v Cannon Twp , 265 Mich App 582, 592; 696 NW2d 742 (2005) (noting that parti es competent to contract are an essential elem ent of contract formation).-5- IV. OPEN AND OBVIOUS

Plaintiff next argues, with respect to his remaining claims, t hat the snow on the sidewalk was not open and obvious and that the trial court therefore err ed by dismissing his claims on that basis. We disagree.

Possessors of land owe no duty to pe rsons who enter their land to protect them from, or to warn them of, dangers that are open and obvious. Hoffner v Lanctoe , 492 Mich 450, 460; 821 NW2d 88 (2012). “Whether a dange r is open and obvious depends on whether it is reasonable to expect an average person with ord inary intelligence would have discovered it upon casual inspection.” Id

. at 461. This is an objective standard that is not dependent on whether a plaintiff actually discovered the hazard. Id

. However, as a “limited exception” to this general rule, a possessor of land may be liable when special aspects of a condi tion “make even an open and obvious risk unreasonable.” Id ., see also Lugo v Ameritech Corp, Inc , 464 Mich 512, 517; 629 NW2d 384 (2001). Special aspects may arise where a condition i s either unreasonably dangerous or effectively unavoidable. Id

. In cases involving ice and snow , “wintry conditions, like any other condition on the premises, may be deemed open and obvious.” Id
., at 464. Courts “thus ask whether the individual circumstances, incl uding the surrounding conditions, render a snow or ice condition open and obvious such that a reasonably prudent person would fo resee the danger.” Id

. Here, plaintiff does not argue that the snow on the sidewalk w as not objectively open and obvious; indeed, plaintiff’s own testimony establishes that alt hough the light was dim, it was sufficient for him to observe the condition of the sidewalk pri or to encountering it. Rather, he argues that the condition possessed special aspects that prohib it the doctrine’s application. We disagree. Specifically, plainti ff argues that, because the sno w was on the shortest possible route to his car, it was “effectively unavoidable.” The trial court rejected this argument, noting that plaintiff admitted that the apartment building possessed two en try/exit doors and at least one alternate route to plaintiff’s car; in addition, plaintiff poss essed the option of walking across the grass rather than on the snow-covered sidewalk. The hazard was thus simply not effectively unavoidable. Id . at 468 (“Unavoidability is characterized by an inability to avoided , an inescapable result, or the inevitability of a given outcome”); see also Joyce v Rubin , 249 Mich App 231, 242; 642 NW2d 360 (2002). And there is nothing unreas onably dangerous about the accumulation of snow and ice rendering a sidewalk slippery in w intertime. See Joyce , 249 Mich App at 243. Rather, this was a common condition that plaintiff chose to encounter. Id

. We therefore conclude that plainti ff did not establish a genuine i ssue of material fact concerning the openness and obviousness of the condition that he alleges cause d his injury, and the trial court did not err in granting summary di sposition in favor of defenda nt. MCR 2.116(C)(10); West
, 469 Mich at 183.

V. MOTION FOR RECONSIDERATION

Finally, plaintiff argues that t he trial court erred in denyin g his motion for reconsideration, because defenda nt’s failure to provide weather logs prevented plaintiff from arguing that defendant had notic e of the hazard. We disagree.-6- MCR 2.119(F)(3) provides that a party moving for reconsiderati on must “demonstrate a palpable error by which the court and the parties have been mis led and show that a different disposition of the motion must result from correction of the er ror.” As stated above, the trial court found no palpable error in defendant’s alleged failure to provide weather logs, as its decision was not based on defendant ’s lack of notice of the haz ard. We agree with the trial court. A defendant’s actual or constructive notice of a hazard, while relevant to a plaintiff’s ultimate success on a premises liability claim, is not an aspect of the application of the open and obvious doctrine. A landlord owes no duty to warn of hazards (even if the landlord is actually or constructively aware of them) tha t are apparent on casual inspe ction and possess no special aspects. Lugo , 464 Mich at 516. And, as stated, we agree with the trial cou rt that the condition was open and obvious with no specia l aspects. Therefore, evide nce tending to show defendant’s actual or constructive notice of the hazard would not have alte red the disposition of defendant’s summary disposition motion.

Affirmed. As the prevailing part y, defendant may tax costs. MCR 7.219(A).

/s/ William B. Murphy /s/ Cynthia Diane Stephens /s/ Mark T. Boonstra