Bowerman v Red Oak Management Co, Inc
Key claim: The Michigan Supreme Court held that a genuine issue of material fact existed on whether the contractor breached its common-law duty by leaving an unmarked trench and that the Court of Appeals erred in concluding as a matter of law that the landlord did not breach its MCL 554.139(1)(a) covenant to keep common areas fit for their intended use.
Abstract
Michigan Supreme Court opinion decided 2026-07-20. Michigan Supreme Court Lansing, Michigan
Syllabus Chief Justice: Justices: Megan K. Cavanagh Brian K. Zahra Richard H. Bernstein Elizabeth M. Welch Kyra H. Bolden Kimberly A. Thomas Noah P. Hood
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions: prepared by the Reporter of Decisions for the convenience of the reader. Kimberly K. Muschong
BOWERMAN v RED OAK MANAGEMENT CO, INC
Docket No. 167718. Argued on application for leave to appeal December 10, 2025.
Decided July 20, 2026.
Jan Bowerman brought an action in the Montcalm Circuit Court against Red Oak
Management Co., Inc., Westveld Services, LLC, and Bob’s Asphalt & Paving, Inc., after she
sustained an injury when she stepped into a shallow trench near the trash-disposal area in the
parking lot of Stanton Park Apartments, an apartment building for elderly and disabled individuals
where she resided, while taking out her trash before sunrise on October 30, 2021. Red Oak
managed Stanton Park and contracted with Westveld to replace concrete in the parking lot;
Westveld created the trench when replacing the concrete slab underneath a dumpster in the parking
lot, and testimony indicated that the trench remained uncovered and unmarked for several weeks
after Westveld completed its work on October 21, 2021. Red Oak also contracted with Bob’s
Asphalt to fill in the trench with asphalt, but Bob’s Asphalt did not complete this work until
November 10, 2021. Bowerman brought a three-count complaint, alleging that Red Oak breached
its covenant under MCL 554.139(1) to keep the premises and all common areas fit for the use
intended by the parties and in a reasonable state of repair and that Westveld and Bob’s Asphalt
negligently failed to correct the trench or install adequate safeguards and warnings so that it would
not constitute a trip hazard. Defendants each moved for summary disposition, and the trial court,
Ronald J. Schafer, J., granted the motions under MCR 2.116(C)(10), holding that Red Oak did not
breach its covenant under MCL 554.139(1)(a) because the trash-disposal area remained reasonably
accessible and was therefore fit for the use intended by the parties and that Bowerman’s claim
against Westveld sounded in premises liability and, as a matter of law, Westveld did not owe
Bowerman any duty of care because the trench was an open and obvious hazard that lacked special
aspects rendering it unreasonably dangerous.
Bowerman did not challenge the trial court’s order granting summary disposition in favor
of Bob’s Asphalt, but she appealed the order granting summary disposition to Red Oak and
Westveld. In a split, unpublished per curiam opinion, issued September 12, 2024 (Docket No.
366338), the Court of Appeals, GADOLA, C.J., and K. F. KELLY, J. (MARIANI, J., dissenting),
affirmed, holding that Red Oak did not breach its covenant under MCL 554.139(1)(a) to keep the
common areas fit for the use intended by the parties because tenants retained reasonable access to
the trash-disposal area and the trench was a “mere inconvenience” that did not negate the area’s
fitness for the use intended by the parties. The Court of Appeals further held that Bowerman’s
claim against Westveld sounded in negligence rather than premises liability, such that Westveld had a duty to perform its work with ordinary care so as not to create an unreasonable risk of harm, and that Westveld did not breach its common-law duty as a matter of law. Bowerman sought leave to appeal in the Supreme Court, and the Supreme Court ordered and heard oral argument on the application. ___ Mich ___; 21 NW3d 186 (2025).
In an opinion by Justice HOOD, joined by Chief Justice CAVANAGH and Justices BERNSTEIN
and WELCH, and joined by Justice THOMAS as to Part III(A) only (concerning the claim of negligence against Westveld), the Supreme Court, in lieu of granting leave to appeal, held:
1. A genuine issue of material fact exists regarding whether Westveld breached its
common-law duty to refrain from unreasonably endangering others, and the Court of Appeals therefore erred by affirming the trial court’s order granting Westveld summary disposition of Bowerman’s negligence claim. Viewing the evidence in the light most favorable to Bowerman, reasonable persons could conclude that Westveld personnel created an unreasonable risk of harm by digging the trench and leaving it uncovered and unmarked upon their departure from Stanton Park.
Michigan law distinguishes between claims based upon theories of ordinary negligence
and those based upon premises liability. Premises-liability claims arise from the condition of the land at issue, and they are predicated upon the defendant’s possession and control of such land. Ordinary negligence claims, on the other hand, are based on the underlying premise that a person has a duty to conform their conduct to an applicable standard of care when undertaking an activity. The Court of Appeals correctly held that Bowerman’s claim against Westveld sounds in ordinary negligence rather than premises liability. Westveld lacked possession and control of the trash- disposal area when Bowerman’s injury occurred; Bowerman’s claim was therefore premised upon the alleged failure of Westveld’s personnel to conform their conduct to the applicable standard of care associated with replacing the concrete platform underneath the dumpster.
The common law imposes on every person engaged in the prosecution of any undertaking
an obligation to use due care, or to so govern their actions as not to unreasonably endanger the person or property of others. Generally, unless the court can conclude that all reasonable persons would agree the defendant did not create an unreasonable risk of harm, whether a defendant’s conduct in the particular case breached this general standard of care is a question of fact for the jury to decide. In this case, the record reflects that Westveld created the trench and left it uncovered and unmarked. Westveld’s owner acknowledged that the trench could pose a tripping hazard and that Westveld personnel typically marked conditions such as the trench with cones or caution tape. Westveld personnel also filled a different, smaller trench but did not fill the trench at issue. Furthermore, the Court of Appeals erroneously relied on evidence regarding Bowerman’s acts and omissions; Bowerman’s acts and omissions are relevant to her degree of comparative fault but do not establish, as a matter of law, that Westveld personnel acted in accordance with their common- law duty to refrain from unreasonably endangering others.
2. The Court of Appeals erred by concluding, as a matter of law, that Red Oak did not
breach its covenant under MCL 554.139(1)(a). MCL 554.139(1)(a) provides that in every lease or license of residential premises, the lessor or licensor covenants that the premises and all common areas are fit for the use intended by the parties. The parties in this case did not dispute that the trash-disposal area was a
Why this matters
The decision clarifies that Michigan landlords’ statutory duty to maintain common areas ‘fit for the use intended’ under MCL 554.139(1)(a) is not easily dispatched at summary disposition when hazards like unmarked trenches obstruct tenant use, potentially expanding landlord liability exposure. It also confirms that contractors working in residential common areas face independent common-law negligence duties to warn or mark hazards, shifting risk allocation for property owners, contractors, and their insurers.