A premises liability suit brought by a hairstylist who was injured when a light fixture fell from the ceiling of a salon leased from the defendant building owner will proceed, a Michigan Court of Appeals panel has held, reversing a grant of summary disposition for the defendant.
The appellate judges said the trial court erred when it concluded there was no genuine issue of material fact that the defendant did not have the necessary possession and control to justify imposing a duty in premises liability regarding the hazardous condition.
“[E]ven if defendant did not have any legal obligation under the terms of the lease to perform such repairs, there was evidence creating a question of fact whether defendant nonetheless undertook such repairs gratuitously and thereby exercised control over the condition of the leaky ceiling and affixed light fixture that allegedly caused plaintiff’s injuries such that defendant had a duty to exercise reasonable care in performing those repairs,” the panel explained.
The unpublished decision,
Epps v. NPT-313 Co. (
MiLW 08-108059 , 8 pages), was issued by Judges Stephen L. Borrello, Brock A. Swartzle and Adrienne N. Young.
Berkley attorney Mark Granzotto represented the appellant; Nathan S. Scherbarth of Zausmer in Farmington Hills represented the appellee. Neither could be reached for comment.
Falling fixture Hairstylist Cortez Epps rented a booth at the Hair Art Gallery co-owned by Rashon Gaines, Angela Malone and Tiffany Engelman. The salon, located in the basement level of the Sapphire Apartments, leased the premises from North Park Towers.
NPT-313 Company purchased the Sapphire Apartments complex in October 2015; the lease agreement was assigned to the company.
Epps claimed he suffered a concussion after a light fixture fell from the ceiling and hit him on the head while he was cutting a client’s hair in late October 2019. He said water had leaked into the ceiling, damaging the drywall and causing the light fixture to fall.
In his suit against NPT-313, Epps argued that he was an invitee when he was injured and that the falling light fixture was a dangerous condition.
NPT-313 moved for summary disposition; since it had relinquished control of the leased premises to the salon Epps could not recover in premises liability. The company cited provisions in the lease agreement that granted to the lessee full control of the hair salon and, in turn, liability for personal injury and property damage.
NPT-313 also claimed Epps was not an invitee; rather, he was a trespasser or a licensee because the salon violated the lease by allowing him to work on the premises as an independent contractor without the defendant’s authorization.
Epps opposed the motion. He asserted that, by issuing him a key fob to enter the building, the defendant implicitly consented to his activities which made him an invitee.
He also offered evidence that NPT-313 had done repairs on the light and leaky ceiling before the incident. The repairs, however, were basically cosmetic repairs to the drywall and light fixture that did not tackle the source of the water leak. Epps contended these repairs were done in a negligent manner that caused the light fixture to fall.
The Oakland County Circuit Court granted NPT-313’s motion, saying the lease agreement granted full control of the leased premises to the salon, which barred a premises liability claim against NPT-313.
After the trial court denied his motion for reconsideration, Epps appealed.
Possession and control The issue is whether the trial court made the correct call when it held that NPT-313 had no duty as a matter of law regarding the hazardous condition. Resolution depends on determining whether NPT-313 had the necessary possession and control for a premises liability action.
The panel looked to 1998’s
Kubczak v. Chem Bank & Trust Co , which said the “purpose behind the principle requiring actual possession and control” was best articulated in 1942’s
Nezworski v. Mazanec .
The
Kubczak court said, “It is a general proposition that 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. Liability for negligence does not depend upon title; a person is liable for an injury resulting from his negligence in respect of a place or instrumentality which is in his control or possession, even though he is not the owner thereof.”
NPT-313 argued that, under the lease agreement, the salon alone was liable for any injuries arising out of conditions within the leased premises such as the light that allegedly injured Epps.
“Essentially, defendant disclaims any duty regarding the condition at issue on the ground that the condition was solely within the salon’s control,” the judges noted.
Epps relied on a 1946 case from the Michigan Supreme Court
Ginsberg v Wineman that said “[the landlord], having gratuitously undertaken, through his agents, to make repairs on the premises, although not legally obligated to do so, and those repairs having been made in a negligent manner, the landlord, must be held liable for the injuries sustained by his tenant’s employee, by reason of such negligent repairs.”
Epps offered evidence that the salon reported problems with water leaking from the ceiling to NPT-313 before the incident and that NPT-313 did repairs twice.
“On both of those previous occasions, the drywall ceiling to which the light fixture was attached became so wet that the drywall failed and caused the light fixture to fall,” the judges said. “Furthermore, there was evidence that on both occasions, defendant or its subcontractors repaired the drywall and light fixture. However, water continued to leak through the ceiling and light fixture. Gaines testified that the leak was reported to defendant, but nothing was done to fix the leak.”
As such, there was evidence creating a question of fact whether NPT-313 “undertook repairs gratuitously” and exercised control over the hazardous condition so that it had a duty to exercise reasonable care in doing those repairs.
“The trial court therefore erred by finding as a matter of law that defendant did not have a duty to keep this condition in reasonable repair,” the panel wrote. “The question of possession and control over property at a given time for purposes of asserting a premises liability claim ‘presents a question for the jury to decide unless there is no dispute of material fact.’”
The matter returns to Oakland County for further proceedings.
If you would like to comment on this story, contact Cory Linsner at clinsner@milawyersweekly.com .
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