Lowrey v. LMPS & LMPJ, INC.

• Decision Date: 13 December 2016
• Docket Number: Docket No. 153025.
• Citation: 500 Mich. 1,890 N.W.2d 344
• Parties: LOWREY v. LMPS & LMPJ, INC.
• Court: Michigan Supreme Court

500 Mich. 1
890 N.W.2d 344

LOWREY
v.
LMPS & LMPJ, INC.

Docket No. 153025.

Supreme Court of Michigan.

Decided Dec. 13, 2016.

890 N.W.2d 346

Ernst & Marko Law, Detroit (by Kevin Ernst and Jonathan R. Marko ) and Bendure & Thomas, Grosse Pointe Park (by Mark R. Bendure ) for Krystal Lowrey.

Kallas & Henk PC, Bloomfield Hills (by Constantine N. Kallas and Joseph F. Fazi ) for KSK Hospitality Group, Inc.

PER CURIAM.

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This case concerns the standard for granting a motion for summary disposition and the elements of a premises liability claim. On a snowy night, plaintiff Krystal Lowrey went with friends to Woody's Diner (defendant) for drinks to celebrate St. Patrick's Day. While exiting the diner, she fell on the stairs and injured herself. She brought this premises liability action, and the trial court granted summary disposition in defendant's favor. The Court of Appeals subsequently reversed, concluding that defendant had failed to establish that it lacked notice of the hazardous condition alleged in the complaint, reasoning that defendant had not presented evidence of what a reasonable inspection would have entailed under the circumstances. We conclude that in order to obtain summary disposition under MCR 2.116(C)(10), defendant was not required to present proof that it lacked notice of the hazardous condition, but needed only to show that plaintiff presented insufficient proof to establish the notice element of her claim. We conclude that defendant met its burden because plaintiff failed to establish a question of fact as to whether defendant had notice of the hazardous condition. Accordingly, we reverse the judgment of the Court of Appeals regarding defendant's notice, reinstate the trial court's order granting summary disposition in favor of defendant on that issue, and vacate the remainder of the Court of Appeals' opinion.

I. FACTS AND HISTORY

Plaintiff Krystal Lowrey and her friends went to Woody's Diner for drinks on March 17, 2013, in celebration

500 Mich. 4

of St. Patrick's Day. They arrived at approximately 12:30 a.m. and went to the dance area located on the second floor. Plaintiff and her friends used the back stairs to travel from the dance area to the smoking patio several times without incident while they were at the diner. Plaintiff consumed four shots of alcohol before she and her friends left around 1:45 a.m. The group once again used the back stairs, this time for the purpose of exiting the diner. Plaintiff was about five stairs from the bottom when she fell forward on the stairs and landed approximately two or three steps below. She asserted that she had slipped on a wet step. Plaintiff acknowledged that she had not seen any water on the stairs at any time that night, but assumed that the stairs were wet because her backside was wet after she landed from her fall and a person "can't just slip on nothing." Plaintiff did not know which of her feet had slipped on the stairs, but thought it might have been both feet because she had lost her balance. Plaintiff and her friends testified that many people were using the

890 N.W.2d 347

same stairs that night and that plaintiff and her friends had not heard of anyone else slipping on the stairs or complaining that the stairs were slippery. The manager of the diner testified that she had not received a report of anyone else falling on the stairs that night.

After being diagnosed with and treated for a broken tibia and fibula, plaintiff sued defendant, alleging negligence. The trial court granted defendant's motion for summary disposition under MCR 2.116(C)(10), holding that plaintiff failed to raise a genuine issue of material fact regarding whether defendant had actual or constructive knowledge of the condition of the stairs; alternatively, the court found the hazardous condition to be open and obvious.

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The Court of Appeals reversed and remanded to the trial court, stating that "[w]hen the defendant is convinced that the plaintiff will be unable to support an element of the claim at trial, but is unwilling or unable to marshal his or her own proofs to support a motion under MCR 2.116(C)(10), the defendant's recourse is to wait for trial and move for a directed verdict after the close of the plaintiff's proofs." Lowrey v. LMPS & LMPJ, Inc., 313 Mich.App. 500, 510, 885 N.W.2d 638 (2015). The Court of Appeals also held that defendant had failed to present evidence that it lacked notice of the hazardous condition because it had not presented evidence of what a reasonable inspection would have entailed under the circumstances. Finally, the Court of Appeals ruled that defendant could not invoke the "open and obvious danger" doctrine as a defense because it had failed to present evidence that a reasonable person would have discovered the hazard.

Defendant sought leave to appeal in this Court, challenging the Court of Appeals' analysis of the standard for summary disposition, its analysis of the elements for notice of an alleged dangerous condition, and its application of the open and obvious danger doctrine.

II. STANDARD OF REVIEW

A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) when the affidavits or other documentary evidence, viewed in the light most favorable to the nonmoving party, show that there is no genuine issue as to any material fact and the moving party is therefore entitled to judgment as a matter of law. Quinto v. Cross & Peters Co., 451 Mich. 358, 362, 547 N.W.2d 314 (1996). This Court reviews de novo the grant or denial of a motion for summary disposition to determine if the moving party is entitled

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to judgment as a matter of law. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999).

III. ANALYSIS

There are two issues in the Court of Appeals' opinion that require our attention. The first pertains to the standard for granting a motion for summary disposition under MCR 2.116(C)(10). MCR 2.116 provides in pertinent part:

(B) Motion.

(1) A party may move for dismissal of or judgment on all or part of a claim in accordance with this rule. A party against whom a defense is asserted may move under this rule for summary disposition of the defense. A request for dismissal without prejudice under MCL 600.2912c must be made by motion under MCR 2.116 and MCR 2.119.

* * *

(C) Grounds. The motion may be based on one or more of these grounds,

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and must specify the grounds on which it is based:

* * *

(10) Except 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.

* * *

(G) Affidavits; Hearing.

* * *

(4) A motion under subrule (C)(10) must specifically identify the issues as to which the moving party believes

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there is no genuine issue as to any material fact. When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial. If

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