Personal injury lawsuits typically arise in housing cooperatives when a member, a person of a member’s family, or guest are injured on the Cooperative’s real property. Injuries can range from slip-and-falls, physical confrontations or fighting, to criminal assault and battery. Since the range of different types of cases in which a Cooperative may be defending claims seeking liability and damages, this serves as an important reminder to Cooperatives, of the legal responsibilities that Cooperatives owe. Specifically, this article focuses on those duties owed to non-members, such as guests.A. The Basics: Three Main Levels of Care (“Duties”) Owed.
In general, an owner of real property owes varying levels of care. Each level consists of a different standard. Each standard of care however, varies in its application depending on the classification of the person alleging an injury. Below are the common types of classifications – listed in rank of greatest duty owed to least –along with the respective duties of care that an owner of real property owes to that person.1. Invitee (Highest Duty Owed).
In Michigan, courts have held that an individual becomes a business invitee if his/she or his/her visit on the property can reasonably be said to confer a business, commercial, monetary, or other tangible benefit on the owner of the premises. Kreski v Modern Wholesale Elec Supply Co
, 429 Mich 347, 415 NW2d 178 (1987) (firefighter on defendant’s property); Kroll v Katz
, 374 Mich 364, 132 NW2d 27 (1965) (plumber making repairs to premises). The main aspect of one’s status as an “invitee” however, is that his/her presence on the property must confer some benefit on the possessor. Berry v J&D Auto Dismantlers, Inc
, 195 Mich App 476, 491 NW2d 585 (1992).
In the context of landlord-tenant laws, which apply to many housing cooperatives, courts have held that a tenant of an apartment complex is considered an invitee. Woodbury v Bruckner (On Remand)
, 248 Mich App 684, 650 NW2d 343 (2001), remanded on other grounds
, 467 Mich 922, 658 NW2d 482 (2002); Prebenda v Tartaglia
, 245 Mich App 168, 627 NW2d 610 (2001).
The duty that an owner/possessor of land owes to an invitee requires that the owner/possessor:
Despite the duties owed to an invitee, the owner of land has no duty to know of every single potential danger on the property, even where the owner had an opportunity to inspect the property to discover potential harms. This duty is therefore considered to be limited to hazards that the owner or possessor of land actually knows about
, whether or not further inspection may have revealed them. Shaw v Wiegartz
, 1 Mich App 271, 135 NW2d 565 (1965).
Children of licensees do receive different treatment which varies from state to state. At least in Michigan, the general rules is that an owner of land is required to take into consideration that a child’s ability to appreciate and understand the extent of a risk to its fullest, differs from that of an adult’s capabilities to understand and appreciate those same risks. See Kosmalski v St John’s Lutheran Church
, 261 Mich App 56, 680 NW2d 50 (2004),3. Trespasser (Lowest Duty Owed).
A trespasser is owed the lowest duty. By definition, a trespasser is a one who goes onto another’s property without either express or implied invitation, for his/her own purposes, and is not on the property to perform any duty to the owner. See Alvin v Simpson
, 195 Mich App 418, 491 NW2d 604 (1992); see also
Restatement (Second) of Torts §329 (1965). In Michigan, unlawful intent is not required in order to establish the person as a trespasser.
In general rule, a landowner becomes liable to a trespasser only if the landowner is grossly negligent or commits a willful and wanton act that results in an injury to the trespasser. Wymer v Holmes
, 429 Mich 66, 71 n1, 412 NW2d 213 (1987). However, the general rule is defined depending on whether the trespasser’s presence is known
to the owner of the property. In addition, a special rule exists for children in the case of an attractive nuisance. The basic operation of the attractive nuisance doctrine typically holds the owner of land liable for harm caused by artificial conditions on the property that are highly dangerous to trespassing children.B. Application of Premises Liability in a Housing Cooperative Setting.
In 1993, the Michigan Court of Appeals addressed whether to extend the above-listed judicial decisions pertaining to duties owed in a landlord tenant context, to cases involving housing cooperatives, in Stanley v Town Square Co-op
, 203 Mich App 143; 512 NW2d 51 (1993). The facts in Stanley v. Town Square Co-op
, while incredibly unfortunate to the plaintiff, were as follows: “shortly before 1:00 a.m. on Saturday, December 12, 1987, plaintiff drove into the parking lot of defendant cooperative to visit a friend. After leaving her car, she was confronted by a man with a gun. He took her back to her car and then robbed and brutally raped her.” Id.
The plaintiff sued the housing cooperative and its management agent alleging that they had breached the duty owed to her. Specifically, the plaintiff alleged that the defendants failed to keep the common areas of the cooperative reasonably safe. Id
. The trial court dismissed the case finding that the housing cooperative did not owe plaintiff a duty and that no duty had been breached. Plaintiff appealed. Although the Court of Appeals affirmed the dismissal holding that under the circumstances of the case, the housing cooperative had no duty to protect the plaintiff from the dangers associated with criminality committed in a parking lot, the court stated:
“Because a landlord exercises exclusive control over the common areas of the premises, the landlord is the only one who can take the necessary precautions to ensure that the common areas are safe for those who use them. Similarly, a cooperative association has exclusive control over the common areas of the cooperative, and the association is the only one that can act to make the common areas safe.
We are satisfied that with regard to premises liability, the duty of a cooperative association owes those who come on the premises is the same as the duty a landlord owes those who come on its premises.
. at 146.
In explaining the scope of the duty the cooperative owes to those who come onto the cooperative’s premises, the Court looked to the status of whether the person coming onto the land was a “visitor.” Noting the concepts described above, the Stanley
Court looked to distinguishing characteristics of the plaintiff’s visit to the property. The Court determined that the plaintiff’s status as an invitee
because “her use of the parking lot was related to the pecuniary interests of the defendants
(i.e., the Cooperative, the possessors of the land) to conclude as irrelevant, whether the plaintiff was a “social guest” or “business invitee” of the cooperative member. Id
. at 147.
The opinion in Stanley
also set forth examples of the duties housing cooperatives owe, such as: taking reasonable precautions, installing locks on doors, providing adequate vestibule lighting, noting potential liability in cases where such precautions are not taken. Recognizing, however, that the cooperative’s duty is not absolute, the Court in Stanley
reminded us that the Cooperative’s “duty does not extend to conditions from which an unreasonable risk cannot be anticipated or to dangers so obvious and apparent that an invitee may be expected to discover himself.” Id
. at 150. Or as put to the specifics of a violent criminal act committed on a parking lot – “[t]he danger of falling victim to criminality in an open parking lot located outside a building is not a dangerous condition created by the possessor of the property, but is a dangerous condition inherent in the society in which we live.” Id
.C. Takeaways for the Concerned Housing Cooperative
In the case cited above, while comfort may be found in the outcome and finding no liability or breach of duty in the instance of criminality occurring on the cooperative’s parking lot, the Michigan Court of Appeals case reminds us that the duty owed to visitors and guests of members is not a small task or concern to be forgotten. The Stanley
case should remind housing cooperatives that there are present risks and dangers, whether based on physical conditions or the property, the location of the property, or societal-ills such as criminal conduct and activity that may occur no matter where the cooperative is located, exist and can happen on any cooperative property. If not already been undertaken, cooperatives should remember that reasonable precautions must be taken to provide some basic levels of protection. Of course, this does not mean that every cooperative must hire security guards or install security cameras.
Rather, knowing that each cooperative is as unique as each of its individual members, cooperatives should ask themselves “have we taken basic and necessary precautions to protect others from certain dangers?” If the answer is “no,” liability may be lurking in the shadows. It is always best to protect the cooperative, its members and assets, not only from dangerous conditions or societal ills, but protecting corporate assets and property from legal liability.
By: Matthew T. Nicols
Attorney at Pentiuk, Couvreur & Kobiljak, P.C.
* Matthew T. Nicols is an associate attorney at the Pentiuk, Couvreur & Kobiljak, P.C., with offices in Wyandotte, Michigan and Chicago, Illinois. Mr. Nicols focuses his practice primarily in areas of cooperative housing law, and other community and condominium association law. He is licensed to practice law in the states of Michigan and Illinois.