Lowrey v. LMPS & LMPJ, Inc., Docket No. 323049.

• Decision Date: 10 December 2015
• Docket Number: Docket No. 323049.
• Citation: 313 Mich.App. 500,885 N.W.2d 638
• Parties: LOWREY v. LMPS & LMPJ, INC.
• Court: Court of Appeal of Michigan — District of US

313 Mich.App. 500

885 N.W.2d 638

LOWREY

v.LMPS & LMPJ, INC.

Docket No. 323049.

Court of Appeals of Michigan.

Submitted Dec. 1, 2015, at Detroit.

Decided Dec. 10, 2015, at 9:00 a.m.

The Rasor Law Firm, PLLC, Royal Oak (by Jonathan R. Marko, Southfield), for Krystal Lowrey.

Kallas & Henk PC, Bloomfield Hills (by Joseph F. Fazi, Grosse Pointe), for KSK Hospitality Group, Inc.

Before: RONAYNE KRAUSE, P.J., and MARKEY and M.J. Kelly, JJ.

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 have denied the motion. We also conclude that the other bases for dismissal raised in KSK's motion are without merit. Accordingly, we reverse and remand.

I. BASIC FACTS

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.

II. SUMMARY DISPOSITION

A. STANDARD OF REVIEW

Lowrey argues that the trial court erred when it granted KSK's motion for summary disposition. This Court reviews de novo a trial court's decision on a motion for summary disposition. Barnard Mfg. Co., Inc. v. Gates Performance Engineering, Inc., 285 Mich.App. 362, 369, 775 N.W.2d 618 (2009)

. This Court also reviews de novo whether the trial court properly interpreted and applied the court rules and this state's common law. Brecht v. Hendry, 297 Mich.App. 732, 736, 825 N.W.2d 110 (2012).

B. THE BURDEN OF PRODUCTION

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).¹ Summary disposition does not violate a party's right to a jury trial because that right extends only to cases in which there are genuine issues of fact for the jury. See People's Wayne Co. Bank v. Wolverine Box Co., 250 Mich. 273, 281, 230 N.W. 170 (1930). In considering such motions, courts must still remain “cognizant of the delicate balance between the constitutional right to a jury trial, on the one hand, and the proper judicial exercise of the rules of civil procedure, on the other.” Napier, 429 Mich. at 231, 414 N.W.2d 862.

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 a claim under MCR 2.116(C) (10)

, the moving party must identify the issues about which there is no genuine issue of material fact and present evidence that, if left unrebutted, would establish the moving party's right to summary disposition. See Barnard Mfg., 285 Mich.App. at 369–370, 775 N.W.2d 618. “If the moving party properly supports its motion, the burden ‘then shifts to the opposing party to establish that a genuine issue of disputed fact exists.’ ” Id. at 370, 775 N.W.2d 618, quoting Quinto v. Cross & Peters Co., 451 Mich. 358, 362, 547 N.W.2d 314 (1996). If the moving party fails to identify with the requisite specificity the “issues as to which the moving party believes there is no genuine issue as to any material fact,” MCR 2.116(G)(4), the nonmoving party cannot be faulted for failing to respond, and the trial court should deny the motion. Similarly, if the moving party fails to properly support his or her motion for summary disposition with affidavits, depositions, admissions, or other documentary evidence, the nonmoving party has no obligation to respond and the trial court should also deny the motion. Barnard Mfg., 285 Mich.App. at 370, 775 N.W.2d 618. It is only after the moving party files a properly asserted and supported motion for summary disposition that the nonmoving party may no longer “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.” MCR 2.116(G)(4)

.

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...