M.J. KELLY, J.
In this suit involving a slip and fall, plaintiff, Krystal Lowrey, appeals by right the trial court's order dismissing her claim against defendant, KSK Hospitality Group, Inc. (KSK), which does business as Woody's Diner (the bar). On appeal, we must determine whether the trial court erred when it granted KSK's motion for summary disposition under MCR 2.116(C)(10). We conclude that it did. In its motion, KSK failed to present evidence that, if left unrebutted, would establish that it did not have actual or constructive notice of the condition; Lowrey therefore had no obligation to come forward with evidence establishing a question of fact as to that element, and the trial court should
Lowrey testified at her deposition that she and four friends, including Kelly Dobronski and Samantha Bevins, went to the bar at about 12:30 a.m. on March 17, 2013. After checking their coats, they went upstairs to the dance area.
Bevins testified at her deposition that the stairs were close to the door where guests go outside to smoke. Two or three times during their visit, Bevins said, they went downstairs for a smoke break. At the time, it was snowing and there was snow on the ground. Bevins said that the bar was busy and there was "a lot of traffic" from people going in and out. Dobronski similarly testified at her deposition that it began to snow after they arrived and was snowing "really bad." Bevins said she saw "girls that were wearing like flat shoes ... sliding" on the steps. She was not sure if all the steps after the landing were wet because "it's darker, you can't see as good, and I didn't inspect the stairs, I'm there to have fun, not to look for safety hazards." Nevertheless, she testified that the steps "were very wet" from the smokers tracking snow inside. There was even some salt on the steps that got tracked in from outside.
Lowrey testified that she and her friends descended the same steps on their way to leave. She could not see clearly because there were "a lot of people like walking down the stairs...." Dobronski also testified that there were a lot of people going down the steps. The steps were narrow; there was enough room for two people to descend side-by-side, but they would be in trouble if somebody were coming up the stairs. After Lowrey had descended about three-quarters of the way down, she suddenly slipped, lost her balance, and fell. She tried to get up, but she couldn't walk; it was later learned that she had broken her tibia and fibula.
Lowrey said a bouncer ordered them to "get out." Bevins similarly stated that there was a bouncer at the bottom of the steps who witnessed the fall; she agreed that that he was controlling traffic coming down the stairs. The bouncer was "rushing" them to get out. Lowrey's friends eventually got her out of the bar without any help from the bouncers.
In June 2013, Lowrey sued LMPS & LMPJ, Inc., for damages arising from her slip and fall. She amended her complaint in July 2013 to name KSK as the defendant instead of LMPS & LMPJ.
KSK moved for summary disposition in May 2014. It argued that Lowrey's claim should be dismissed because Lowrey could not identify what caused her fall and could not prove that KSK had actual or constructive notice of any dangerous condition that may have existed. It also argued that, if there were a dangerous condition, it had no duty to rectify it or warn her because the condition was open and obvious. The trial court agreed that Lowrey failed "to present any evidence that [KSK] had actual or constructive notice" of the condition of the stairs before Lowrey's fall and granted KSK's motion. It also stated, in passing, that it was dismissing Lowrey's claims for the reasons "further stated" by KSK in its brief. The trial court entered an order dismissing Lowrey's claim under MCR 2.116(C)(10) for the reasons stated on the record in July 2014. After the trial court denied her motion for reconsideration, Lowrey appealed.
Lowrey argues that the trial court erred when it granted KSK's motion for summary
In its brief in support of its motion for summary disposition, KSK repeatedly asserted its belief that Lowrey would not be able to support the elements of her claim. Likewise, in granting KSK's motion, the trial court emphasized that Lowrey would have the burden to present evidence that KSK had actual or constructive notice of the dangerous condition if her claim were to proceed to trial and, for that reason, concluded that she had an obligation to present evidence after KSK raised the issue in its motion. The trial court appears to have understood that a defendant meets his or her burden of production as the moving party by simply stating a belief that the plaintiff will be unable to present evidence to establish an element at trial. This understanding is not, however, in accord with our court rules.
The parties to a civil action generally have the right to have a jury hear the evidence and resolve their dispute. See Const. 1963, art. 1, § 14. Nevertheless, because the plaintiff bears the burden of proof, if the plaintiff fails to present evidence on an element of his or her claim at trial, the trial court properly directs a verdict in the defendant's favor. See Taylor v. Kent Radiology, PC, 286 Mich.App. 490, 499-500, 780 N.W.2d 900 (2009). Courts should grant a motion for a directed verdict only in those cases in which reasonable people could not differ as to whether the plaintiff established the elements of his or her claim; to do otherwise would contravene the constitutional requirement that the right to a jury trial be preserved. Napier v. Jacobs, 429 Mich. 222, 231-232, 414 N.W.2d 862 (1987). The grant of a motion for summary disposition amounts to — in effect — the grant of a directed verdict in favor of the moving party, and the same standard of review applies to both motions. See Skinner v. Square D Co., 445 Mich. 153, 165 n. 9, 516 N.W.2d 475 (1994).
A party may test the opposing party's factual support for a claim or defense by making a properly supported motion for summary disposition under MCR 2.116(C)(10). See Maiden v. Rozwood, 461 Mich. 109, 120, 597 N.W.2d 817 (1999). A trial court should grant the motion if, "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." MCR 2.116(C)(10). In order to invoke the trial court's authority to dismiss
There is a temptation on the part of busy trial courts to conclude that, because the plaintiff bears the initial burden of production at trial, the defendant should be able to challenge the plaintiff's ability to support his or her claim by filing a motion for summary disposition under MCR 2.116(C)(10) and asserting the belief that the plaintiff will be unable to meet his or her burden at trial. However, as our court rules clearly provide, it is the moving party — whether the plaintiff or the defendant — who bears the initial burden of production in a motion for summary disposition; the moving party must not only "specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact," but also must support the motion "as provided in this rule...." MCR 2.116(G)(4).
The moving party supports his or her motion by presenting affidavits, depositions, admissions, or other documentary evidence to establish the grounds asserted in the motion. MCR 2.116(G)(3). It is only when the moving party properly supports the motion that the burden shifts to the nonmoving party to present evidence sufficient to establish that there is a genuine issue for trial. Quinto, 451 Mich. at 362, 547 N.W.2d 314. And, because the burden of production is on the moving party at this point, the moving party risks having his or her motion "thrown out of court" if the moving party fails to properly support it. See Kar v. Hogan, 399 Mich. 529, 540, 251 N.W.2d 77 (1976) (quotation marks and citation omitted), overruled in part on other grounds In re Estate of Karmey, 468 Mich. 68, 658 N.W.2d 796 (2003). Consequently, a defendant who moves for summary disposition does not satisfy the initial burden of production by asserting his or her mere belief that the plaintiff will be unable to make his or her case at trial. Rather, the moving party must present evidence that, if left unrebutted, would permit a reasonable finder of fact to find in the moving party's favor on the element at issue. Barnard Mfg., 285 Mich.App. at 370, 775 N.W.2d 618; see also Grandberry-Lovette v. Garascia, 303 Mich.App. 566, 580-581, 844 N.W.2d 178 (2014). When the defendant is convinced that the plaintiff will be unable to support
To establish a claim of premises liability,
To demonstrate that there was no genuine issue that it did not have actual notice, KSK had to present evidence that, if believed, would establish that it did not know that the stairs were wet or slippery. As an artificial entity, KSK's knowledge consists of the collective knowledge acquired by its employees within the scope of their employment and authority. See The Upjohn Co. v. New Hampshire Ins. Co., 438 Mich. 197, 213-214, 215 n. 14, 476 N.W.2d 392 (1991). For that reason, a premises possessor is considered to have actual notice of those conditions caused by his or her employees or about which his or her employees know. Hulett v. Great Atlantic & Pacific Tea Co., 299 Mich. 59, 67, 299 N.W. 807 (1941). Therefore, to establish that it did not have actual notice that the steps were wet and slippery, KSK had to present evidence from an employee whose duties included addressing dangerous conditions on the property during the time at issue, as those conditions might arise or become known.
In the present case, KSK relied on evidence from three sources to establish that it did not have actual notice. It cited deposition testimony from the manager on duty on the night at issue, Jenna Evans. She testified that no one made her aware that anyone had fallen on the steps. KSK noted too that its owner, Tony Kasab, did not learn of Lowrey's fall until much later. Finally, KSK relied on testimony tending to establish that Lowrey and her friends did not hear anyone complaining to KSK's employees about the condition of the stairs. None of this testimony was sufficient to allow a reasonable jury to find that KSK did not actually know that the steps were wet and slippery.
Although knowledge that someone had fallen down the stairs at issue would be evidence that Evans or Kasab knew that the stairs might have been wet and slippery, it does not follow from that testimony that no customer or employee reported that the steps were wet and slippery, nor, for that matter, that the employees themselves did not know about the condition of the stairs. Knowledge that a hazard has not yet caused a fall is distinct from knowledge that the hazard exists in the first place. Likewise, the fact that Lowrey and her companions did not hear anyone complain to one of KSK's employees
A premises possessor owes a duty to inspect his or her premises for conditions that might pose a danger to invitees and this duty is linked to the concept of constructive notice:
Generally, the law "will impute knowledge of the dangerous condition to the premises possessor if the dangerous condition is of such a character or has existed for a sufficient time that a reasonable premises possessor would have discovered it." Id. at 575, 844 N.W.2d 178. However, whether the condition was one that a premises possessor would have discovered with a reasonable inspection generally depends in the first instance on the nature of the inspection that a reasonable premises possessor would have made under the circumstances. See id. at 576-584, 844 N.W.2d 178; see also Gerlach v. Detroit United R, 171 Mich. 474, 485, 137 N.W. 256 (1912) (stating that a reasonable inspection includes not only visual inspection, but also all those tests that a reasonably prudent man would ordinarily use to ascertain the condition of the property at issue).
In Grandberry-Lovette, the plaintiff was injured while visiting a group home. Grandberry-Lovette, 303 Mich.App. at 570, 844 N.W.2d 178. On appeal, this Court considered whether the trial court properly dismissed the plaintiff's claim against the defendant on the ground that he did not have constructive notice of the dangerous condition. Id. at 572, 844 N.W.2d 178.
The Court first explained that the defendant was incorrect when he argued that his duty to inspect for hazards was no different than the plaintiff's duty to avoid hazards that are open and obvious. "The premises possessor's duty to inspect," the Court observed, "is not invariably limited to `casual' observation." Id. at 577, 844 N.W.2d 178. This is so because the "premises possessor must take reasonable care to know the actual conditions" on his or her property. Id. at 578, 844 N.W.2d 178 (quotation marks and citation omitted). And what amounts to reasonable care depends on the type of inspection that a reasonably prudent premises possessor would perform under like circumstances:
After rejecting the notion that a premises possessor's duty to inspect was invariably the same as an invitee's duty to avoid open and obvious hazards,
As is evident from the Court's analysis, a premises possessor who moves for summary disposition on the ground that he or she did not have constructive notice of the dangerous condition will normally have to present evidence to establish what constitutes a reasonable inspection under the circumstances to permit an inference that, given the nature of the hazard, he or she would not have discovered the hazard even if he or she had performed that inspection. Id.; see also Moning v. Alfono, 400 Mich. 425, 438, 254 N.W.2d 759 (1977) (stating that, in negligence cases, the general standard of care is a question of law for the court, but the specific standard of care is a question of fact for the jury). In the absence of evidence concerning what would constitute a reasonable inspection, a jury would in most cases be left to speculate as to whether the premises possessor would have discovered the hazard at issue had he or she conducted a reasonable inspection.
The proper context for evaluating whether a condition was discoverable with a reasonable inspection depends both on the nature of the hazard and the nature of the inspection that a reasonable premises possessor would employ under like circumstances.
In this case, KSK argued that the undisputed evidence showed that Lowrey could not prove how the liquid at issue got on the stairs or how long it was there. KSK also noted that its manager, Evans, testified that either "a waitress or one of the staff will see it [a spill] and report it, or [that she] will see it on the security cameras." KSK then concluded that this evidence demonstrated that Lowrey would not be able to prove that KSK had constructive notice of the wet stairs at trial:
We do not agree that KSK supported its motion for summary disposition with evidence that, if left unrebutted, would establish that it did not have constructive notice
Although KSK briefly cited Evans's testimony about how spills are normally discovered and handled, it did not present any evidence indicating that particular method for inspecting the premises was reasonable under the circumstances of that night. It did not cite any evidence concerning the weather conditions (there was testimony that it was snowing heavily and that snow was being tracked into the bar and onto the stairs), how busy the bar was at the time (there was testimony that there were normally a couple hundred or more patrons), and did not even cite evidence that the bar's employees actually used the stairs at issue.
The trial court erred when it granted KSK's motion for summary disposition on the ground that there was no genuine issue of fact that it did not have either actual or constructive notice. KSK failed to support its motion as required under MCR 2.116(G)(3) and (4), and the trial court should have denied the motion on that basis alone. Grandberry-Lovette, 303 Mich.App. at 581, 844 N.W.2d 178. Because
The trial court also determined that KSK was entitled to summary disposition on the basis of the other arguments that it made in its motion. KSK had argued that Lowrey's claim should be dismissed for three additional reasons: (1) Lowrey could not establish that a liquid caused her fall, (2) the stairs do not amount to a dangerous condition, and (3) it had no duty to warn or rectify the condition because it was open and obvious.
To prove her claim at trial, Lowrey had to show that the dangerous condition was both the cause in fact and the proximate cause of her injury. Skinner, 445 Mich. at 162-163, 516 N.W.2d 475. It would not be sufficient for Lowrey to present evidence that it was plausible that the wet stairs caused her fall; there must be evidence from which a reasonable jury could conclude that it is more likely than not that the wet stairs caused her fall. Id. at 164-165, 516 N.W.2d 475.
In support of its motion, KSK selectively cited testimony by Lowrey that suggested that she was not sure about the cause of her fall. If this testimony had been left unrebutted, KSK would have been entitled to summary disposition. However, in response to KSK's motion, Lowrey cited portions of her testimony in which she clarified that she slipped and fell as a result of liquid on the stairs. She agreed that she saw the "liquid that caused [her] foot to slip" after she fell and, when asked, she stated that "[l]iquid" caused her foot to slip. Although her testimony seemed inconsistent, any inconsistencies were a matter of weight and credibility that could not be assessed on a motion for summary disposition. Id. at 161, 516 N.W.2d 475. This Court, like the trial court, must view Lowrey's testimony in the light most favorable to her when determining whether there is a genuine issue of fact. Id. at 162, 516 N.W.2d 475; see also Quinto, 451 Mich. at 362, 547 N.W.2d 314. Viewing Lowrey's testimony and the other evidence in the light most favorable to her, it was deducible using reasonable inferences that Lowrey slipped as a result of the wet stairs; that is, there was substantial evidence from which a jury might conclude that, but for KSK's failure to rectify the wet condition of the stairs, Lowrey would not have been injured. See Skinner, 445 Mich. at 164-165, 516 N.W.2d 475. Thus, there was a question of fact on the issue of causation, and the trial court erred to the extent that it determined that summary disposition was warranted on this ground.
KSK also argued that there was nothing about the character, location, or surrounding condition of the steps that made the steps unreasonably dangerous. See Bertrand v. Alan Ford, Inc., 449 Mich. 606, 614-617, 537 N.W.2d 185 (1995). In making this argument, KSK ignored the evidence that the steps had become wet; instead, it focused on the fact that — under normal conditions — there was nothing particularly dangerous about the steps. Considering the evidence that the steps had become wet, a reasonable jury could find
A premises possessor has no duty to rectify a dangerous condition that is so obvious that the invitee might reasonably be expected to discover it. Grandberry-Lovette, 303 Mich.App. at 576, 844 N.W.2d 178. Where an otherwise dangerous condition is open and obvious, the open and obvious danger doctrine will cut off liability. Id.
The threshold issue of whether KSK owed a duty to Lowrey is a question of law to be decided by the court. Riddle, 440 Mich. at 95, 485 N.W.2d 676. Because the open and obvious danger doctrine is an integral part of the definition of the duty owed by a premises possessor, whether the open and obvious danger doctrine will cut off liability will often be a question of law. See Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 516-517, 629 N.W.2d 384 (2001). Nevertheless, there may be circumstances in which there is a factual dispute that must be resolved before it can be determined whether there was a duty of care. See Bertrand, 449 Mich. at 617, 537 N.W.2d 185. In Bonin v. Gralewicz, 378 Mich. 521, 526-527, 146 N.W.2d 647 (1966) (opinion by SOURIS, J.), our Supreme Court explained the distinction between the role of the jury and the role of the trial court when determining whether a defendant has a duty to the plaintiff:
Hence, when the facts necessary to make a determination regarding the duty owed by a defendant to a plaintiff are not disputed, it is the trial court's responsibility to decide the legal import of those facts. If there are disputed facts, which, depending on how those facts are resolved, could alter the determination that the defendant owed a duty to the plaintiff, those facts must be submitted to the jury with an appropriate instruction. Id.
"A dangerous condition is open and obvious if an average user with ordinary intelligence acting under the same conditions would have been able to discover the danger and the risk presented by the condition upon casual inspection." Grandberry-Lovette, 303 Mich.App. at 576-577, 844 N.W.2d 178 (quotation marks and citation omitted). To properly support a motion for summary disposition on the ground that the dangerous condition at issue was open and obvious, the premises possessor must present evidence that the dangerous condition — as it existed at the time the plaintiff encountered it — was such that reasonable people could not disagree that an average user of ordinary intelligence acting under those conditions would have been able to discover the danger and the risk presented by the condition on casual inspection. Id.; see also Napier, 429 Mich. at 231-232, 414 N.W.2d 862. It is only after the moving party presents such evidence that the burden shifts to the nonmoving party to present evidence to establish a question of fact as to whether an average user of ordinary intelligence would not have been able to discover the hazard on casual inspection. Quinto, 451 Mich. at 362, 547 N.W.2d 314.
KSK failed to present evidence that, if left unrebutted, would establish that it did not have actual or constructive notice of the hazard at issue or that the hazard was open and obvious. Consequently, the burden to establish a question of fact did not shift to Lowrey and the trial court erred when it concluded otherwise. The trial court also erred to the extent that it determined that there was no question of fact as to whether wet stairs constitute an actionable hazard or on the issue of causation. For these reasons, the trial court should have denied KSK's motion.
Accordingly, we reverse the trial court's decision, vacate its order granting summary disposition in KSK's favor, and remand for further proceedings consistent with this opinion. Given our resolution of the issues, we decline to address Lowrey's arguments concerning the spoliation of evidence. We do not retain jurisdiction. As the prevailing party, Lowrey may tax her costs. MCR 7.219(A).
RONAYNE KRAUSE, P.J., and MARKEY, J., concurred with M.J. KELLY, J.
