Zausmer Shareholder Nathan Scherbarth Secures Dismissals in Three Premises Liability Cases on Appeal

On February 1, 2022, Nathan Scherbarth, a Zausmer shareholder and head of the firm’s Appellate practice group, secured victories from three separate panels of the Michigan Court of Appeals, including two reversals, resulting in the dismissal of premises liability claims asserted against firm clients.

In Janini v London Townhouses Condominium Association, Court of Appeals Docket No. 355191, the plaintiff alleged that he slipped on ice and snow and sustained a brain injury, seeking significant damages from the condominium association on a premises liability theory. The trial court denied the condominium association’s motion for summary disposition on the premises liability claim, concluding that there were “genuine issues of fact” precluding dismissal. On leave granted, the Court of Appeals reversed and dismissed the case, concluding that because the plaintiff was a co-owner of the common areas of the condominium complex, he was not a licensee or invitee, and therefore, the condominium association owed no duty to the plaintiff under premises liability.

In Mower-Harriger v ERMC II, Court of Appeals Docket No. 354016, the Plaintiff alleged that she was seriously injured when she fell on ice in the Meridian Mall parking lot. She sued ERMC II, which provided janitorial and security services on the premises, alleging that they failed to keep the premises free of snow and ice. ERMC II moved for summary disposition, arguing that it owed no duty to the plaintiff because it did not own, possess, or control the parking lot where the incident occurred. The trial court disagreed, denying summary disposition. On leave granted, the Court of Appeals reversed, concluding that the plaintiff did not identify any duty that ERMC II owed to the plaintiff when her fall occurred, and therefore, ERMC II was entitled to dismissal as a matter of law.

Finally, in Lloyd v Millbrook Apartments, Court of Appeals Docket No. 356055, the plaintiff, a tenant of the apartment complex, claimed that she slipped and fell on the sidewalk of the complex, injuring her back. She brought claims alleging violation of MCL 554.139 because the sidewalk was allegedly not fit for its intended use, as well as a common law premises liability claim. The apartment complex moved for summary disposition, which was granted by the trial court. The plaintiff appealed, arguing that the sidewalk was not fit for its intended purpose and that the black ice upon which she allegedly fell was not an open and obvious condition. Erin Katz authored the apartment complex’s brief on appeal and Nathan handled the oral argument. The Court of Appeals disagreed with Plaintiff, affirming dismissal of the claims against the apartment complex and concluding that there were indicia sufficient to establish that someone in the plaintiff’s situation should have been aware of the possibility of black ice and would have discovered it upon casual inspection.

For more information about Zausmer’s Appellate practice group, please click here.


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