Kortas v. Thunderbowl and Lounge, Docket No. 57201

• Decision Date: 06 January 1983
• Docket Number: Docket No. 57201
• Citation: 120 Mich.App. 84,327 N.W.2d 401
• Parties: Gerald KORTAS and Dorothy Kortas, Plaintiffs-Appellants, v. THUNDERBOWL AND LOUNGE, a Michigan corporation, Defendant-Appellee. 120 Mich.App. 84, 327 N.W.2d 401
• Court: Court of Appeal of Michigan — District of US

Page 401

327 N.W.2d 401

Gerald KORTAS and Dorothy Kortas, Plaintiffs-Appellants, v. THUNDERBOWL AND LOUNGE, a Michigan corporation,

Defendant-Appellee.

Docket No. 57201.

120 Mich.App. 84, 327 N.W.2d 401

Court of Appeals of Michigan.

Submitted June 4, 1982.

Decided Oct. 5, 1982.

Released for Publication Jan. 6, 1983.

[120 MICHAPP 85] Carron & Carron by Paul J. Carron, Detroit, for plaintiffs-appellants; Gromek, Bendure & Thomas by Nancy L. Bosh, Detroit, of counsel.

Fulkerson, Hudson, Moore, Bileti, Pierce & Tennent, P.C. by John M. Lucas, Troy, for defendant-appellee.

Before BRONSON, P.J., and MAHER and WARSHAWSKY ^*, JJ.

WARSHAWSKY, Judge.

Plaintiffs brought this action to recover for injuries sustained when Gerald Kortas slipped and fell on a lane of defendant's bowling alley. The Wayne County Circuit Court granted defendant's motion for summary judgment. Plaintiffs appeal by right.

In a complaint filed on February 20, 1979, plaintiffs alleged that plaintiff Gerald Kortas slipped and fell while bowling at defendant's bowling alley on February 19, 1976. The complaint, based on negligence, alleged that a foreign substance on the alley caused Gerald Kortas's fall, defendant breached its duty to warn of a hazardous condition, defendant knew or should have known of the allegedly hazardous condition and defendant breached a duty to business invitees to provide safe conditions for bowling.

[120 MICHAPP 86] At a hearing held on January 30, 1981, the trial court ruled that there was no genuine issue of material fact and ordered summary judgment in favor of defendant pursuant to GCR 1963, 117.2(3). The trial court relied on Gerald Kortas's deposition and certain interrogatories. The trial court noted Gerald Kortas's statements which indicated that he had not noticed any substance on the floor. The trial court, held that plaintiffs had not produced evidence of what was on the floor, or how it got there, or if it was present at all. Plaintiffs promised to produce an expert witness to describe how bowling alley surfaces are maintained and the results of improper care. Plaintiffs asked for the opportunity to present expert testimony on what could cause such a fall. Nevertheless, the trial court granted summary judgment for defendant.

At a hearing on March 6, 1981, regarding plaintiffs' motion for rehearing to set aside the order, plaintiffs again sought permission to depose an expert witness, noting that defendant's original motion was based largely on the deposition of Gerald Kortas and that discovery was not complete. Counsel for plaintiffs said that he hoped to produce testimony of an expert which would identify the alleged substance on the alley's surface and demonstrate that the substance might be related to preparation of the lanes.

On appeal, plaintiffs argue that the trial judge erred in granting summary judgment because they offered to produce an expert witness to establish the hazardous condition. Defendant argues that the expert could only testify in answer to hypothetical questions.

A motion for summary judgment based on the absence of any genuine issue of material fact tests whether there is factual support for the claim. [120 MICHAPP 87] Lipton v. Boesky, 110 Mich.App. 589, 598, 313 N.W.2d 163 (1981). The court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence then available to it. Rizzo v. Kretschmer, 389 Mich. 363, 374, 207 N.W.2d 316 (1973); Fry v. Ionia Sentinel-Standard, 101 Mich.App. 725, 728, 300 N.W.2d 687 (1980). Before granting summary judgment, the court must give the benefit of every reasonable doubt to the party opposing the motion and must be satisfied that it is impossible for the claim to be supported at trial because of some deficiency which could not be overcome. Rizzo, 389 Mich. at 372, 207 N.W.2d 216; Peeples v. Detroit, 99 Mich.App. 285, 293, 297 N.W.2d 839 (1980).

Summary judgment is premature if granted before discovery on the disputed issue is complete. Durkee v. Cooper of Canada, Ltd., 99 Mich.App. 693, 700, 298 N.W.2d 620 (1980); Goldman v. Loubella Extendables, 91 Mich.App. 212, 218, 283 N.W.2d 695, lv. den. 407 Mich. 901 (1979), and see Johnston v. American Oil Co., 51 Mich.App. 646, 650, 215 N.W.2d 719 (1974). The question is whether further discovery stands a fair chance of uncovering factual support for the litigant's position. Crider v Borg, 109 Mich.App. 771, 772-773, 312 N.W.2d 156 (1981).

In the present case, a decision on the motion for summary judgment should have been postponed until plaintiffs had deposed their expert...