Dicks v. The Forbes Co.
| Decision Date | 11 May 2023 |
| Docket Number | 362208 |
| Parties | ALLECIA DICKS, Plaintiff-Appellant, v. THE FORBES COMPANY, LLC, d/b/a SOMERSET COLLECTION MALL, and CURTIS GLASS COMPANY, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Oakland Circuit Court LC No. 2021-186293-NO.
Before: Elizabeth L. Gleicher, C.J., and Noah P. Hood and Allie Greenleaf Maldonado, JJ.
Allecia Dicks slipped and fell on a puddle of water at the Somerset Collection Mall. Evidence supported that the water came from a leaking skylight. Dicks filed suit against the mall and a glass company periodically repaired the skylights. The circuit court determined that the condition was open and obvious and summarily dismissed Dicks's claims against both defendants.
Unlike the mall, the glass company did not owe Dicks any duty of care. The evidence supports that the mall had constructive notice of the leaking skylight and that the condition was not open and obvious. We affirm the dismissal of Dicks's claims against Curtis Glass Company but vacate the dismissal of her claims against The Forbes Company d/b/a Somerset Collection Mall (Somerset) and remand for continued proceedings.
In September 2020, Dicks worked at the Apple Store in Somerset Collection Mall North. She was stationed in a roped-off area in front of the store where she monitored the flow of customers into the store to meet reduced capacity requirements instituted as a COVID-19 protocol. Two carts on the left side of Dicks's work station held various items Dicks needed for her work. At approximately 10:00 a.m., Dicks slipped on a puddle of water near the carts, but did not fall. A third-party contractor hired by Apple cleaned up the puddle and placed a warning sign in the area. Dicks assumed that the puddle was created by a spilled beverage. At approximately 5:30 p.m., Dicks returned to the left side of the work station to complete a task. She slipped and fell on a new puddle of water that had accumulated in the area. Dicks asserted that she was looking where she was walking but did not see the puddle until she was on the shiny white marble floor.
During discovery, evidence revealed a history of leaks from the mall's skylights. Somerset North was constructed in 1996. Somerset's facilities director, Paul Deschepper, opined that Curtis Glass had installed the skylights in Somerset North. Curtis Glass Service Manager Joseph Gyuran, on the other hand, asserted that it was not hired as a Somerset contractor until 2010. Deschepper and Gyuran also disagreed regarding the type of work that Curtis Glass performed for Somerset. Both agreed that Somerset would contact Curtis Glass on an as-needed basis to repair skylight leaks.
Gyuran testified that most of the skylight leaks were due to worn-out caulk. The type of caulk used to seal the Somerset North skylights when they were installed in 1996 begins to crack after 20 to 25 years. Gyuran inspected the skylight outside the Apple Store following Dicks's fall and discovered that the original caulk was still in place.
Dicks filed this negligence action against Somerset and Curtis Glass. Following discovery, both defendants moved for summary disposition under MCR 2.116(C)(10). Curtis Glass contended that it owed no duty to Dicks and both defendants asserted that the allegedly dangerous condition was open and obvious. The circuit court agreed and dismissed Dicks's complaint in its entirety. Dicks now appeals.
We review de novo a circuit court's resolution of a summary disposition motion. Rory v Continental Ins Co, 473 Mich. 457, 464; 703 N.W.2d 23 (2005). Summary disposition is appropriate under MCR 2.116(C)(10) where "there is no genuine issue as to any material fact, and the moving party is entitled to judgment . . . as a matter of law." "A motion under 2.116(C)(10) tests the factual sufficiency of the complaint." Maiden v Rozwood, 461 Mich. 109, 119; 597 N.W.2d 817 (1999). "[T]he circuit court must consider affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion." Joseph v Auto Club Ins Ass'n, 491 Mich. 200, 206; 815 N.W.2d 412 (2012). "Courts are liberal in finding a factual dispute sufficient to withstand summary disposition." Innovative Adult Foster Care, Inc v Ragin, 285 Mich.App. 466, 476; 776 N.W.2d 398 (2009).
Dicks's claim against Curtis Glass sounds in ordinary negligence. "Michigan law distinguishes between claims arising from ordinary negligence and claims premised on a condition of the land." Buhalis v Trinity Continuing Care Servs, 296 Mich.App. 685, 692; 822 N.W.2d 254 (2012). Curtis Glass had no ownership or possessory interest in Somerset Collection Mall that could create a duty in a premises liability action. See Derbabian v S &C Snowplowing, Inc, 249 Mich.App. 695, 702; 644 N.W.2d 779 (2002) ("To be liable under a premises liability theory, plaintiff must show that defendant was a possessor . . . at the time of plaintiff's injury."). Accordingly, any claims against it must arise in ordinary negligence.
Dicks failed to establish that Curtis Glass owed her any duty of care even under ordinary negligence principles. "The threshold question for negligence claims brought against a contractor on the basis of a maintenance contract between a premises owner and that contractor is whether the contractor breached a duty separate and distinct from those assumed under the contract." Fultz v Union-Commerce Assoc, 470 Mich. 460, 461-462; 683 N.W.2d 587 (2004). The court's focus should be on whether the contractor owes a plaintiff any duty at all "without regard to the obligations contained within the contract" between the landowner and the contractor. Loweke v Ann Arbor Ceiling &Partition, Co, LLC, 489 Mich. 157, 171; 809 N.W.2d 553 (2011). "The most important factor to be considered is the relationship of the parties." In re Certified Question from the Fourteenth Dist Court of Appeals of Texas (Miller v Ford Motor Co), 479 Mich. 498, 505; 740 N.W.2d 206 (2007). Whether a duty of care exists depends on whether the nature of the parties' relationship obligated an allegedly negligent defendant to act in a manner benefitting the plaintiff. Id. at 505-506. "Where there is no relationship between the parties, no duty can be imposed...." Id. at 508.
Here, Curtis Glass did not own or possess any part of Somerset Collection Mall. Its employees were not present on the day of the fall. Curtis Glass was simply an independent contractor hired by Somerset on an as-needed basis. It owed no independent duty to anyone within the mall. Accordingly, summary disposition of Dicks's claim against Curtis Glass was proper.
Dicks's claim against Somerset, however, sounds in premises liability. "In a premisesliability action, as in any negligence action, the plaintiff must establish the elements of negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach proximately caused the plaintiff's injuries, and (4) the plaintiff suffered damages." Jeffrey-Moise v Williamsburg Towne Houses Coop, Inc, 336 Mich.App. 616, 626; 971 N.W.2d 716 (2021). "Premises liability is conditioned upon the presence of both possession and control over the land." Merritt v Nickelson, 407 Mich. 544, 552; 287 N.W.2d 178 (1980). "[P]remises liability is conditioned upon the presence of both possession and control over the land because the person in possession is in a position of control and normally best able to prevent any harm to others." Anderson v Wiegand, 223 Mich.App. 549, 555; 567 N.W.2d 452 (1997).
As the owner and occupier of a retail establishment, Somerset owed Dicks, an invitee, a heightened duty of care. Somerset was duty bound to "not only to warn [Dicks] of any known dangers, but the additional obligation to . . . make the premises safe, which require[d] [Somerset] to inspect the premises and, depending upon the circumstances, make any necessary repairs or warn of any discovered hazards." Stitt v Holland Abundant Life Fellowship, 462 Mich. 591, 597; 614 N.W.2d 88 (2000).
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if the owner: (a) knows of, or by the exercise of reasonable care would discover, the condition and should realize that the condition involves an unreasonable risk of harm to such invitees; (b) should expect that invitees will not discover or realize the danger, or will fail to protect themselves against it; and (c) fails to exercise reasonable care to protect invitees against the danger. [Id.]
Dicks created a triable question of fact that Somerset's failure to maintain the premises was both a cause in fact and a proximate cause of her injury. In a premises liability action, "an invitee must show that the premises owner breached its duty to the invitee and that the breach constituted the proximate cause of damages suffered by the invitee." Lowrey v LMPS &LMPJ, Inc, 500 Mich. 1, 8; 890 N.W.2d 344 (2016).[1] "[P]roving proximate cause actually entails proof of two separate elements: (1) cause in fact, and (2) legal cause, also known as 'proximate cause.'" Skinner v Square D Co, 445 Mich. 153, 162-163; 516 N.W.2d 475 (1994). "The cause in fact element generally requires showing that 'but for' the defendant's actions, the plaintiff's injury would not have occurred." Id. at 163. "On the other hand, legal cause or 'proximate cause' normally involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences." Id.
Evidence supported that the puddle was a cause in fact and a proximate cause of Dicks's injury. Dicks slipped on the puddle and...
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