Impact of Supreme Court’s Order in Kermath on Independent Senior Living Communities in Michigan

Michael Kern, Kitch Attorneys & Counselors News

Posted with permission from Kitch Drutchas Wagner Valitutti & Sherbrook. You can view their article HERE.

A recent ruling from the Michigan Supreme Court involving the death of a resident at an independent senior living community in Oxford, MI has raised concern for owners of similarly situated communities, and rightfully so. The ruling has called into question whether residents in independent senior living communities in Michigan truly are “independent” under the law or whether these communities owe a duty to their residents beyond that of a traditional landlord-tenant relationship. As a result, we are advising all our independent senior living clients to re-examine their operations and to consider changes to protect themselves against a similar lawsuit in the future.

In the recently decided Kermath v. Independence Village of Oxford, a resident in an independent living community accidently wandered outside in only a nightgown early in the morning and was unable to get back in the building on her own when the door locked behind her. Temperatures were below freezing, and she developed hypothermia, passing away a week after the incident. The trial court granted the defendant’s motion for summary disposition and dismissed the case on the basis that the harm was not foreseeable in an independent living setting, and therefore, the community did not owe a duty to the resident to protect her. The Michigan Court of Appeals affirmed the decision. However, the Michigan Supreme Court overturned the ruling of the lower courts in a 4-2 decision, holding instead that the harm was foreseeable, and the community, therefore, owed the resident a common-law duty of care beyond that of a typical landlord-tenant relationship.

The Court “consider[ed] numerous factors in determining whether a common-law duty of care exist[ed], including the following: (1) foreseeability of the harm, (2) degree of certainty of injury, (3) closeness of connection between the conduct and injury, (4) moral blame attached to the conduct, (5) policy of preventing future harm, and (6) the burdens and consequences of imposing a duty and the resulting liability for breach. (citation omitted.) The Court went on to state:

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. (emphasis added.)

Justice Zahra stated in the minority dissent, which was joined by Justice Viviano, that the ruling represented “an extreme expansion of a landlord’s duty to maintain the premises over which it exercises control.”

The question for landlords moving forward is what to do in response to this case. The resident in the Kermath case had no history of wandering in this manner. In addition, the lease “expressly provided that Independence Village had no responsibility for security measures,” and she had her own private caregiver who was not employed or affiliated with the community.[1] At minimum, there are a couple of steps that senior living communities should consider taking to in light of this ruling:

  1. Conduct an overall review of the building – Are doors automatically locked at night? If so, is the door monitored? Is there a buzzer or notice system for a resident to get back in the building if he/she steps outside without a key? Senior living communities should be take immediate steps to reduce the risk of having a repeat of what happened in Kermath happen in their own building. Similarly, are there any conditions in common areas or outside the building that might not create a hazard for a young, able-bodied person but could be potentially hazardous to elderly residents. Senior living communities should be regularly assessing their building for potential hazards like automatic doors or marking stairs with visible caution strips.


  1. Conduct a thorough review of your marketing materials and agreements –Senior living providers work hard to create a homelike environment for their residents. However, it is important to keep in mind that the relationship you have with your residents is that of landlord tenant, and that the actions you take, the statements you make, and the agreements you draft may be viewed by the current Michigan Supreme Court as creating a heightened duty because of the population you serve.


  1. Review available services – services such as on-site third-party caregivers and emergency pendants pose a risk of creating a heightened duty under Kermath. Understanding that some of these services may be at the core of the communities building plan, independent senior living communities still must be careful that they are not presenting themselves as offering a greater level of supervision than what would be available in a regular apartment building. It must be clearly communicated to prospective residents that your community is an independent living community, and that staff is not available to assist the resident in living independently.

What independent senior living communities cannot and should not do is conduct assessments on their own to determine whether a resident is suitable for independent living. One of the fastest routes to a fair housing lawsuit is to deny a prospective resident on the basis that the community does not believe the resident is capable of living independently. Likewise, evicting a resident because he/she may no longer be able to live independently or attempting to force that resident to relocate to a community that could provide a higher level of care could result in a fair housing or ADA complaint. Instead, senior living providers need to be upfront and communicate clearly with the resident and/or the resident’s family about what services the community provides, and more importantly, what services the community does not provide. If a resident or the family expresses concern regarding the lack of certain services, the community can recommend that they consider a higher level of care. However, that decision should be left to the resident and/or the family.

Should you have any questions regarding the Kermath ruling or have any senior living related concerns, please do not hesitate to contact a member of our Post-Acute Care Practice.

[1] Kermath v Independence Village of Oxford, __ Mich. __, Docket No. 161007 (June 3, 2022)

Any information included here or through our website is presented solely for general informational purposes and is not in any way intended as legal advice, is not a substitute for getting actual legal advice from an attorney, and should not be acted upon as legal advice without first seeking qualified professional counsel specific to your needs and situation. Additionally, by providing this general information and the information on our website, no attorney client relationship is created.