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03/25/76 MCCURTIS v. DETROIT HILTON

March 25, 1976

MCCURTIS
v.
DETROIT HILTON



Appeal from Wayne, Thomas Roumell, J.

M. F. Cavanagh, P. J., and R. B. Burns and F. C. Ziem,* JJ.

SYLLABUS BY THE COURT

1. Landlord and Tenant -- Negligence -- Duty of Care -- Maintenance of Premises -- Hidden Conditions -- Public Purposes.

A landlord who gives up control, possession and use of his realty under a lease agreement does not have a duty to maintain the premises in a reasonably safe condition and is not liable to persons injured on the premises unless (1) at the time of the transfer to the tenant a hidden dangerous condition exists of which the landlord knows or should have known and of which he fails to apprise the tenant, or (2) the premises is leased for a purpose involving public admission and the landlord fails to exercise reasonable care to inspect and repair the premises before possession is transferred.

2. Pleading -- Complaint -- Maintenance of Premises -- Reasonable Care -- Negligence -- Negligent Omissions -- Nuisance.

A complaint which alleges a landlord's failure to exercise reasonable care in the management and maintenance of premises leased for the purpose of carrying on a drugstore business and which alleges specific acts of negligence and negligent omissions presents a claim in negligence, not of nuisance.

3. Judgment -- Summary Judgment -- Affidavit Support -- Genuine Issue of Fact -- Negligence -- Burden of Proof.

A summary judgment was properly granted where an affidavit which averred that a stairway on which a plaintiff was injured was entirely within the exclusive control, possession, and use of a tenant pursuant to a lease agreement was properly used to support the motion for a summary judgment for lack of a genuine issue of material fact in favor of a defendant landlord in a slip and fall negligence action, and where the plaintiff failed to come forward with affidavits or other proofs of his own to establish that a genuine issue did exist as to the landowner's liability.

The opinion of the court was delivered by: Ziem

Complaint by Annie McCurtis and Robert McCurtis and by Annie McCurtis administratrix of the estate of her unborn child, against the Detroit Hilton and Hilton Hotels, Inc., for damages arising from a slip and fall. Summary judgment for defendants. Plaintiffs appeal.

Plaintiffs appeal from the lower court's grant of summary judgment in favor of defendants under GCR 1963, 117.2(3) entered on March 2, 1975.

On May 8, 1970, plaintiff Annie McCurtis, an employee of the third party defendant Cunningham Drug Stores, Inc., allegedly fell down a flight of steps located in the drug store. The fall occurred while she was proceeding during a work break to the employees' lunch area which was in the basement portion of the store. The drug store itself was located in the lobby of the Detroit Hilton Hotel and had been rented from the defendants, Detroit Hilton and Hilton Hotels, Incorporated. As a result of this fall, Mrs. McCurtis, who was pregnant at the time, incurred serious injuries and the 12-week old fetus then carried by her was aborted.

On May 3, 1973, the present action was commenced against the defendants by plaintiffs Annie McCurtis and Robert McCurtis, the husband of the injured plaintiff, and Annie McCurtis as administratrix of the estate of the unborn infant. In their complaint, plaintiffs alleged that their injuries were sustained as a result of the defendants' negligence in maintaining the steps. According to plaintiffs, Mrs. McCurtis' fall occurred because of the slippery condition.

Thereafter on June 6, 1973, defendants' request for an order allowing the issuance of a third party summons/complaint for indemnification purposes against the third party defendant Cunningham Drug Stores, Incorporated, ...


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