Lavallis v. Oakland Physicians Med. Ctr.

• Decision Date: 09 March 2023
• Docket Number: 359736
• Parties: PAMELA LAVALLIS, Plaintiff-Appellant, v. OAKLAND PHYSICIANS MEDICAL CENTER, LLC, doing business as PONTIAC GENERAL HOSPITAL, Defendant-Appellee. v.
• Court: Court of Appeal of Michigan — District of US

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PAMELA LAVALLIS, Plaintiff-Appellant, v. OAKLAND PHYSICIANS MEDICAL CENTER, LLC, doing business as PONTIAC GENERAL HOSPITAL, Defendant-Appellee.

No. 359736

Court of Appeals of Michigan

March 9, 2023

UNPUBLISHED

Oakland Circuit CourtLC No. 2020-184726-NO

Before: CAVANAGH, P.J., and SERVITTO and GARRETT, JJ.

PER CURIAM.

Plaintiff appeals as of right the order granting summary disposition under MCR 2.116(C)(10)(no genuine issue of material fact) in favor of defendant, Oakland Physicians Medical Center, doing business as Pontiac General Hospital, in this premises liability case.We affirm.

I.BACKGROUND

Plaintiff an "operator" at defendant's hospital system, completed her shift at defendant hospital on October 29, 2018, at approximately 7:15 a.m. Feeling unwell, plaintiff decided to visit urgent care at defendant hospital for treatment.As plaintiff was entering the urgent care's ambulance entrance, she tripped and fell over the 3-inch elevated step at the threshold of the door, sustaining injuries to her right foot, knees, and head.

Plaintiff brought negligence and premises liability claims against defendant.Plaintiff claimed defendant was negligent because it breached its duty to maintain a safe premise and warn plaintiff of hazardous conditions, which directly and proximately caused plaintiff's injuries.Plaintiff further claimed defendant breached its duty to plaintiff, as a business invitee, to exercise reasonable care to protect plaintiff from known dangers or dangers it could have discovered, i.e., the threshold step.Defendant claimed the premises were safe and the entrance to the facility was not known to be a hazardous condition.Defendant further denied it negligently maintained the property and argued any condition that existed was open and obvious to plaintiff.Defendant also asserted it had no duty to warn because there was no hazardous condition on the property.

Defendant ultimately moved for summary disposition under MCR 2.116(C)(10).Defendant argued plaintiff's negligence claim should be dismissed because the complaint related solely to the condition of defendant's land, sounding in premises liability.Defendant further argued its duty to maintain safe premises did not extend to the threshold step because plaintiff used the ambulance entrance to the urgent care on several previous occasions, thus, any allegedly dangerous condition was known to plaintiff.Further, defendant argued the danger of tripping and falling on a step is an open and obvious danger.And, because plaintiff did not argue there were any special aspects of the threshold step that: (1) made it effectively unavoidable, or (2) presented a substantial likelihood of severe injury, plaintiff's premises liability claim should be dismissed with prejudice.

Plaintiff responded that defendant could not rely on the open and obvious doctrine because defendant's negligent maintenance of the threshold step violated numerous statutes and codes.At the very least, plaintiff argued the testimonies of defendant's employees created a genuine issue of material fact whether defendant violated the identified statutes and codes.Plaintiff also argued the threshold step was not open and obvious because at the time plaintiff fell, it was dark outside and despite that plaintiff was paying attention, she was unable to determine the danger of the threshold step.Again, plaintiff claims these facts at least created a genuine issue of material fact precluding summary disposition.Finally, plaintiff argued defendant knew of the dangerous and hazardous nature of the threshold step because defendant's employees previously reported the threshold step presented a hazard to employees and patients, and despite this knowledge, defendant failed to repair the step.

The trial court dismissed plaintiff's negligence claim and found plaintiff's claim, that defendant violated numerous codes and statutes, was without merit because plaintiff failed to articulate adequate legal or factual support for her claims.The trial court, citing numerous cases holding that steps are open and obvious dangers, granted summary disposition because plaintiff(1) did not argue she was unaware of the step at the threshold or that there were any special aspects about the threshold giving rise to a uniquely high likelihood of harm, and (2) present sufficient evidence to create a genuine issue of material fact regarding whether the step was an open and obvious danger.This appeal followed.

II.STANDARD OF REVIEW

"A trial court's decision[concerning a motion for] summary disposition is reviewed de novo."Eplee v City of Lansing, 327 Mich.App. 635, 644; 935 N.W.2d 104(2019).Issues of statutory construction are also reviewed de novo.Estes v Titus, 481 Mich. 573, 578-579; 751 N.W.2d 493(2008).Issues of law are reviewed de novo.Kocher v Dep't of Treasury, 241 Mich.App. 378, 380; 615 N.W.2d 767(2000).

A motion for summary disposition under MCR 2.116(C)(10)"tests the factual adequacy of a complaint on the basis of the entire record, including affidavits, depositions, admissions, or other documentary evidence."Gorman v Am Honda Motor Co, Inc, 302 Mich.App. 113, 115; 839 N.W.2d 223(2013).The moving party may satisfy its burden under MCR 2.116(C)(10) by "submit[ting] affirmative evidence that negates an essential element of the nonmoving party's claim," or by "demonstrat[ing] to the court that the nonmoving party's evidence is insufficient to establish an essential element of the nonmoving party's claim."Quinto v Cross & Peters Co, 451 Mich. 358, 362; 547 N.W.2d 314(1996)(quotation marks and citation omitted).

A trial court's grant of summary disposition under MCR 2.116(C)(10) is proper when the evidence, viewed in the light most favorable to the nonmoving party, shows "there is no genuine issue as to any material fact and the moving party is therefore entitled to judgment as a matter of law."Lowrey v LMPS & LMPJ, Inc, 500 Mich. 1, 5; 890 N.W.2d 344(2016)."A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ."Richardson v Allstate Ins Co, 328 Mich.App. 468, 471; 938 N.W.2d 749(2019)(quotation marks and citation omitted).

III.STATUTORY VIOLATIONS

Plaintiff first argues the trial court erred in granting summary disposition because the open and obvious doctrine of premises liability does not apply when a defendant violates statutes, codes, and ordinances.We disagree.

At the outset, we note that before the trial court, plaintiff argued defendant violated the following provisions of the 2015 International Property Maintenance Code (IPMC): 106.1, 301.2, and 702.For the first time on appeal, plaintiff now claims defendant also violated IPMC provisions 302.3, 304.13, 304.15, and the Michigan Occupational Safety and Health Act (MIOSHA), MCL 408.1009andMCL 408.1011.Issues raised for the first time on appeal in a civil case are not ordinarily subject to review.In re Conservatorship of Murray, 336 Mich.App. 234, 240; 970 N.W.2d 372(2021).

[T]his Court may overlook preservation requirements if the failure to consider the issue would result in manifest injustice, if consideration is necessary for a proper determination of the case, or if the issue involves a question of law and the facts necessary for its resolution have been presented.However, while an appellate court has the inherent power to review an unpreserved claim of error, our Supreme Court has emphasized the fundamental principles that such power of review is to be exercised quite sparingly and that the inherent power to review unpreserved issues is to be exercised only under what appear to be compelling circumstances to avoid a miscarriage of justice or to accord a criminal defendant a fair trial.[Id. at 240-241(quotation marks and citation omitted).]

We decline to consider plaintiff's arguments regarding her newly raised claims of error.

Because plaintiff preserved her argument as it relates to violations of IPMC 106.1, 301.2; and 702, having specifically raised these alleged code violations in the trial court, Redmond v Heller, 332 Mich.App. 415, 430; 957 N.W.2d 357(2020), failure to consider whether defendant violated IPMC 302.3, 304.13, andIPMC 304.15 would not result "in manifest injustice" and are not necessary for a proper determination of plaintiff's case.SeeIn re Conservatorship of Murray, 336 Mich.App. at 240-241.And because it is improper to permit expansion of the record to include arguments that were never presented to the trial court, Barnard Mfg Co v Gates Performance Engineering, Inc, 285 Mich.App. 362, 380-381; 775 N.W.2d 618(2009), we decline to consider plaintiff's arguments defendant violated IPMC 302.3; 304.13; and IPMC 304.15.

With respect to her MIOSHA arguments, although plaintiff was an employee at the time her claim arose, plaintiff has not brought her claim as an employee, but instead as a third party.

MIOSHA and the regulations enacted under MIOSHA apply only to the relationship between employers and employees and therefore do not create duties that run[-]in favor of third parties.Accordingly, MIOSHA does not impose a statutory duty in favor of third parties in the negligence context.Nor do administrative regulations enacted under MIOSHA impose duties in favor of third parties in the negligence context.[Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich.App. 710, 721; 737 N.W.2d 179(2007)(citations omitted).]

Plaintiff admits when she sustained her alleged injuries, she was not acting in her capacity as an employee, rather, she was seeking care from defendant as a business invitee.If plaintiff seeks relief under MIOSHA, then plaintiff may...