The Michigan Supreme Court recently issued a decision that will improve the quality of care and safety of elderly individuals who live in senior independent housing.

Four years ago, a trial court in Oakland County dismissed the case of Kermath v Independence Village. As a result, Virginia Kermath never got her day in front of a jury. Instead, the trial court ruled that Independence Village, an unlicensed, independent living facility for seniors, did not owe a duty of care to any of its residents. The court also ruled that it was not foreseeable that an elderly resident with dementia, living in an senior living facility, could get confused and exit the facility.

After the trial court dismissed Ms. Kermath’s case, the Michigan Court of Appeals upheld that dismissal. It was not until the Michigan Supreme Court reviewed Ms. Kermath’s case that she finally got the justice that she deserves.

In January 2014, Ms. Kermath, who had dementia and was known to wander, walked out a side door of Independence Village in the early morning hour. It was the middle of winter and she was wearing nothing but her nightgown. When she walked outside, the door closed behind her and locked. There was no alarm, no buzzer, and no cameras monitoring the door. In her state of confusion, Ms. Kermath did not know how to get back in the facility, so she stood outside the door, barefoot in the snow. By the time she was found, Ms. Kermath was severely hypothermic and had suffered life threatening frostbite on her feet, which ultimately led to her death only six weeks later.

In reversing the lower courts, the Michigan Supreme Court found that Independence Village did in fact owe a common law, landlord-tenant duty of care to Ms. Kermath. Under Michigan law, a landlord has a duty to maintain the physical premises over which they exercise control. See Bailey v Schaaf, 494 Mich 595, 604-606 (2013); Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 499-500 (1988).

The Court further recognized that the harm Ms. Kermath suffered was objectively foreseeable. The door that Ms. Kermath exited was in a common area of the building and was under the exclusive control of the landlord. Ms. Kermath was locked out in the cold due to the door having an automatic lock. The Court held 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 Court recognized that tenants of any age may become locked out of their apartment building from time to time, regardless of age or mental capacity, and this possibility becomes more likely in a residential complex specifically catering to the elderly. The average age of the residents at Independence Village, coupled with frequent below-freezing temperatures during winter months in Michigan, also increases the risk of hypothermia or other serious injury when a lockout occurs.

The Court also found that there was moral blame attached to Independence Village’s conduct, and determined that the policy of preventing future harm weighed in favor of imposing a duty of reasonable care on Independence Village. The Court recognized that Independence Village intentionally marketed and catered to elderly individuals who are in need of greater support than the general population, and charged a substantial premium for tenancy at the facility, which includes two hot meals a day, biweekly housekeeping, and laundry services. The facility also provided daily check-in calls, a pull-cord alert mechanism in units, and an on-site third-party contractor who offered additional homecare and medical services for a fee. These facts strongly suggest that the landlord had some knowledge that certain residents would require additional assistance beyond that of an average tenant.

As a result, the Court determined that the potential burden associated with taking reasonable measures to prevent residents from being locked out and unable to alert staff, such as installing a buzzer or cameras, was minimal when compared to the potential harm that could befall residents. The Court determined that imposing a legal duty of care on senior living facilities like Independence Village will reduce the chance of elderly or cognitively impaired residents from being injured should they become locked outside on a cold, wintry Michigan day.

As a result of the Court’s decision, Ms. Kermath will finally get her day in court, where a jury will decide whether the conduct of Independence Village was negligent and whether that negligence caused her injuries.

In reaching its decision, the Court mentioned another case handled by Olsman MacKenzie, where a federal court recognized that an independent senior living facility had the specific common-law duty to monitor its automatic locking doors under similar facts. See Washnock v Brookdale Senior Living, Inc, unpublished opinion of the United States District Court for the Eastern District of Michigan, issued February 6, 2014 (Case No. 12-11607).

“We are thrilled that the Michigan Supreme Court has righted this egregious wrong that was done to our client and that she will finally have the opportunity to present her case to a jury. However, the decision of the Michigan Supreme Court will have an impact far beyond our one client in this one case,” said attorney Donna MacKenzie, who was the trial lawyer for Ms. Kermath. “Senior living facilities throughout the state that market to elderly individuals will be held accountable if they do not take reasonable measures to keep their residents safe.”

Appellate attorney Mark Granzotto handled the appeal for Ms. Kermath.

Ms. Kermath’s daughter, Cosette Rowland, said, “I think the court’s decision is a victory for all seniors and their families who seek to safely house in independent or assisted living facilities. It shouldn’t just be about money for these facilities. Hopefully, this decision will resonate across the state, and these facilities will make sure their residents are met with safe, secure and healthy environments.” With regard to her mom, Cosette said, “[no] one should have to go through what my mom went through. It was hell for her. Hopefully, the Court’s decision will prevent other families from experiencing a traumatic event like this.”