Grandberry-Lovette v. Garascia

Citation844 N.W.2d 178,303 Mich.App. 566
Decision Date02 January 2014
Docket NumberDocket No. 311668.
PartiesGRANDBERRY–LOVETTE v. GARASCIA.
CourtCourt of Appeal of Michigan (US)

OPINION TEXT STARTS HERE

Ravid & Associates, PC, Southfield (by Jeffrey S. Hayes and Keith M. Banka), for plaintiff.

Lupo & Koczkur, PC, Sterling Heights (by Paul S. Koczkur and Kenneth L. Lupo), for defendant.

Before: JANSEN, P.J., and O'CONNELL and M.J. KELLY, JJ.

M.J. KELLY, J.

In this suit to recover damages resulting from a fall, plaintiff, Charlotte Grandberry–Lovette, appeals by right the trial court's order granting a motion for summary disposition under MCR 2.116(C)(10) by defendant Mark Garascia. We conclude that the trial court erred when it granted Garascia's motion for summary disposition. Specifically, because Garascia failed to establish that there was no genuine factual dispute regarding whether he had constructive notice of the defective condition at issue, he was not entitled to have Grandberry–Lovette's claim dismissed on the basis that he did not have such notice. Accordingly, we reverse and remand for further proceedings.

I. BASIC FACTS

Garascia owned a single-family home in 2010 that he leased through a county-operated program to several persons with disabilities. Garascia testified that he had been a licensed residential builder for approximately 20 years and had built his own house. He had previously worked for his father's construction company and sometimes worked as a bricklayer.

Grandberry–Lovette testified that the steps leading to the home's porch were concrete with a decorative brick border. Garascia stated that, approximately 9 to 18 months before the fall at issue, he received a call about the need to repair the steps. When he examined the steps, he noticed that some bricks had come out and others were loose. He cleaned off the mortar from the bricks and removed anything that was loose. He then reapplied the mortar to the bricks and put the steps back together. He inspected the remainder of the steps and “everything else was in satisfactory condition.”

Garascia testified that it was normal for bricks to come loose after Michigan winters: We get the thaw and frost, thaw and frost. They do come loose.” After he repaired the steps, Garascia did not receive any further complaints regarding the steps. He also visited the property several times and did not “observe” any defects. Garascia stated that he just makes a visual inspection when he visits the property, which is usually during the spring and summer months.

In April 2010, Grandberry–Lovette worked as a healthcare aide and had been assigned to assist the residents living at Grascia's rental home during the midnight shift. Grandberry–Lovette arrived at the home shortly before her shift; she parked her truck, grabbed her lunch, and walked toward the home's front entrance. She began to climb the steps to the front porch. When she stepped on the second step, “the bricks came loose.” She testified: “I walked up and when I put my right foot on the step, it crumbled.” She fell forward and suffered various injuries.

Garascia testified that the bricks that he had previously repaired were not the bricks that were involved in Grandberry–Lovette's fall.

Grandberry–Lovette sued Garascia in September 2011. She alleged, in relevant part, that Garascia had a duty to “timely and adequately” inspect the steps and ensure that the steps were in good repair or warn his invitees—including her—about the dangerous condition of the steps, which he did not do. She further alleged that Garascia's breach of these duties proximately caused her injuries.

In May 2012, Garascia moved for summary disposition under MCR 2.116(C)(10). Garascia argued that there was no evidence that he had actual or constructive notice that the steps had any problems. He noted that he had not received any complaints about the steps since he last repaired them and had not himself noticed any problems with the steps during his visits to the property. He also cited Grandberry–Lovette's testimony that she also had not had any problems with the steps before her fall.

In addition, relying on an unpublished opinion per curiam of the Court of Appeals, Garascia argued that he could not be charged with constructive notice of a defective condition that was not visible on casual inspection because, if a condition is of a kind or sort that a plaintiff could not see it, then the defendant cannot be expected to see it either. Garascia also maintained that, to the extent that the dangerous character of the bricks was visible on casual inspection, he had no duty to repair the condition under the open and obvious danger doctrine.

The trial court issued its opinion and order in July 2012. The trial court agreed that there was no evidence that Garascia had actual or constructive knowledge that the bricks at issue had come loose and posed a danger. The trial court also determined that Grandberry–Lovette failed to establish that Garascia's actual inspection regime was inadequate: [T]he record is devoid of any evidence suggesting [Garascia] would or should have discovered the allegedly defective condition had he inspected the steps after December 2009 but before April 9, 2010.” Because Grandberry–Lovettefailed to establish a question of fact regarding whether Garascia had notice of the defective condition, the trial court dismissed her claims.

Grandberry–Lovette now appeals.

II. PREMISES LIABILITY AND NOTICE
A. STANDARDS OF REVIEW

Grandberry–Lovette argues on appeal that the trial court erred when it determined that Garascia established that there was no question of fact that he did not have actual or constructive notice that the steps were defective and granted summary disposition on that basis. 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 the proper interpretation and application of the common law, such as the law governing premises liability. Brecht v. Hendry, 297 Mich.App. 732, 736, 825 N.W.2d 110 (2012).

B. THE DUTY TO INSPECT AND CONSTRUCTIVE NOTICE

The parties do not dispute that Grandberry–Lovette was an invitee at the time of her visit to Garascia's property. An invitee is a person who enters upon another's land with an “implied representation, assurance, or understanding that reasonable care has been used to prepare the premises, and make [it] safe for [the invitee's] reception.” Stitt v. Holland Abundant Life Fellowship, 462 Mich. 591, 597, 614 N.W.2d 88 (2000) (quotation marks and citation omitted; alterations in original). Garascia, therefore, owed Grandberry–Lovette the highest duty of care. Id. He not only had to warn Grandberry–Lovette about any known dangers, but also had a duty “to inspect the premises and, depending upon the circumstances, make any necessary repairs or warn of any discovered hazards.” Id. Because Garascia had a duty to inspect his premises for latent dangers, he could be liable for harm caused by a latent dangerous condition if the dangerous condition was of a kind or sort that “by the exercise of reasonable care” he would have discovered. Id.

The duty to inspect one's premises to ensure that the premises are safe for invitees is inextricably linked to the concept of constructive notice. Even if the premises possessor does not have actual knowledge of a dangerous condition—as would be the case for a dangerous condition created by some third party or through gradual deterioration—Michigan courts have long recognized that the law will impute knowledge of the dangerous condition to the premises possessor if the premises possessor should have discovered the dangerous condition in the exercise of reasonable care. See Siegel v. Detroit City Ice & Fuel Co., 324 Mich. 205, 211–212, 36 N.W.2d 719 (1949); Hulett v. Great Atlantic & Pacific Tea Co., 299 Mich. 59, 68, 299 N.W. 807 (1941) quoting Kroger Grocery & Baking Co. v. Diebold, 276 Ky. 349, 352, 124 S.W.2d 505 (1939) (explaining that “ [n]egligence may consist either in failure on the part of the store proprietor to discover the dangerous condition, though created by a third person, within a reasonable time, or in the creation of the dangerous condition by himself or his agents or servants'); Samuelson v. Cleveland Iron Mining Co., 49 Mich. 164, 170, 13 N.W. 499 (1882) (Cooley, J.) (stating that a premises possessor has the duty to warn of dangerous conditions about which he or she actually knows “or ought to know” and characterizing that concept as “very just and very familiar”). As our Supreme Court explained more than 80 years ago:

A good expression of the rule of liability, applicable in such cases, is found in an English case to the effect that the proprietor of such a structure is not a warrantor or insurer that it is absolutely safe, but that he impliedly warrants that it is safe for the purpose intended, save only as to those defects which are unseen, unknown, and undiscoverable,—not only unknown to himself, but undiscoverable by the exercise of any reasonable skill and diligence, or by any ordinary and reasonable means of inquiry and examination. Such being the nature of the obligation, it is obvious that the proprietor of such a building is under a continuing duty of inspection, to the end of seeing that it is reasonably safe for the protection of those whom he invites to come into it; and that, if he neglects his duty in this respect, so that it becomes unsafe, the question of his knowledge or ignorance of the defect which renders it unsafe is immaterial. [Sullivan v. Detroit & Windsor Ferry Co., 255 Mich. 575, 577, 238 N.W. 221 (1931) (quotation marks and citation omitted).]

Accordingly, the failure to properly inspect may constitute negligence if a reasonable inspection would have revealed the dangerous condition giving rise to an injury.1Hulett, 299...

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