A Michigan Supreme Court ruling has called into question whether independent living residents are truly “independent” and what responsibilities operators hold beyond the traditional landlord-tenant relationship.
In a 4-2 decision, the state Supreme Court overturned two lower court rulings, finding that an independent living community owed a resident a “common-law duty of care” beyond that of a typical landlord-tenant relationship. The case now returns to Oakland County Court.
In Kermath v. Independence Village of Oxford, independent living resident Virginia Kermath wandered outside in a nightgown in the early morning hours in December 2013 and was unable to get back into the building when the door locked behind her. She developed hypothermia as a result of being in freezing temperatures for 14 minutes, passing away a week after the incident.
Kermath’s family sued, alleging that the community was negligent by failing to monitor the exterior doors or to arm them with alarms to alert staff members if a resident was locked out. The family’s lawsuit also alleged that the community failed to provide residents with a reliable means of notifying staff members if they were locked out.
A trial court dismissed the case on the basis that the harm was nor foreseeable in an independent living setting and that the community did not owe a duty to protect the resident. The decision was affirmed in 2020 by the Michigan Court of Appeals.
The Supreme Court justices wrote in their opinion, however, that “[a] reasonable person could anticipate that an elderly resident living in an unlicensed independent living facility, where the average age of the residents exceeds 80 years old, could become locked out of a building after exiting an automatically locking door on a cold winter morning.”
The minority dissenting opinion said the ruling represented “an extreme expansion of a landlord’s duty to maintain the premises over which it exercises control.”
What now?
Robert L. Stein, general counsel for the Michigan Assisted Living Association, told McKnight’s Senior Living that the implications of the ruling by the Michigan Supreme Court are unclear, noting that the litigation still is in process and the case is fact-specific.
Nevertheless, he said, MALA recommends that independent senior living communities in the state review their practices and procedures, including a comprehensive look at the physical plants, as well as the community’s admissions contract, website and marketing materials.
Michael Kern, an associate principal with Detroit-based Kitch, Drutchas, Wagner, Valitutti & Sherbrook, recommended in a blog post that in light of the ruling, communities should consider conducting an overall review of their buildings for potential hazards; review marketing materials and agreements; and review available services, which could pose a risk of creating a heightened duty.
In the state Supreme Court ruling, justices said that the community provided daily check-in calls, a pull-cord alert mechanism in units, and an on-site third-party contractor for additional home care and medical services for a fee. Those measures, they said, “strongly suggest the landlord had some knowledge that certain residents would require additional assistance beyond that of an average tenant.”
Kern wrote that independent living communities should not conduct assessments to determine whether a resident is suitable for independent living, saying that denying a prospective resident admission is “one of the fastest routes to a fair housing lawsuit.”
Communities also should not evict a resident who may no longer be able to live independently, Kern said.
