Siewert v. Sears, Roebuck & Co.

• Decision Date: 26 June 1989
• Docket Number: Docket No. 104411
• Citation: 441 N.W.2d 9,177 Mich.App. 221
• Parties: Esther SIEWERT, Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 9

441 N.W.2d 9

177 Mich.App. 221

Esther SIEWERT, Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellee.

Docket No. 104411.

Court of Appeals of Michigan.

Submitted Dec. 22, 1988.

Decided Jan. 30, 1989.

Released for Publication June 26, 1989.

Litch, Gordon & Czechowski, P.C. by Walter J. Czechowski, Center Line, for plaintiff-appellant.

Kerr, Russell & Weber by Daniel G. Beyer and Kenneth C. Harrison, Detroit, for defendant-appellee.

Before MacKENZIE, P.J., and CYNAR and KOBZA, ^* JJ.

PER CURIAM.

In this premises liability action, plaintiff appeals as of right from the Macomb Circuit Court's October 22, 1987, order by which it granted summary disposition in favor of defendant and denied plaintiff's motion to amend her complaint. Resolution of this appeal hinges upon whether the trial court abused its discretion in denying plaintiff's motion to amend.

Based on our review of the lower court file, we note that plaintiff filed her complaint on November 10, 1986, alleging that she slipped in defendant's Macomb Mall store in Roseville as the result of defendant's negligence in allowing a liquid substance or a sheet of paper to remain on the floor. Defendant answered, reserving defenses.

According to the December 17, 1986, notice in lieu of pretrial conference, discovery was to be completed within 180 days, i.e., by mid-June, 1987.

Defendant claims and plaintiff does not deny that plaintiff's deposition was taken in March, 1987. At the deposition, ¹ plaintiff testified that she did not recall the floor being wet; although a piece of paper was pointed out to plaintiff by a witness, plaintiff did not believe she slipped on a piece of paper and did not recall seeing anything on the floor when she fell. Plaintiff indicated that she believed she fell for no reason other than that the floor was slippery.

Defendant filed its motion for summary disposition pursuant to MCR 2.116(C)(10) on August 19, 1987, on the ground that plaintiff could demonstrate no causal connection between her fall and any negligence on the part of defendant in maintaining its premises because any such connection was at best speculative, citing Stefan v. White, 76 Mich.App. 654, 257 N.W.2d 206 (1977). On August 24, 1987, plaintiff moved to amend her complaint to aver that plaintiff's fall was caused by a floor that was slippery "as if it had been recently waxed." Plaintiff's proposed first-amended complaint alleged that defendant breached its duty of care with regard to the floor by: (a) allowing cleaner residue to remain on the floor by not cleaning the floor properly; (b) failing to buff the floor properly so as to increase friction; (c) failing to instruct its employees concerning proper cleaning and buffing procedures; (d) failing to maintain the premises in such a was as to control or to prevent falls, potentially dangerous or hazardous conditions; and (e) failing to erect barricades or signs notifying patrons of slippery floor conditions.

The trial court heard both parties' motions on August 31, 1987. At the hearing, at which both parties were represented, defendant stated (and plaintiff did not deny) that mediation had already been held. The trial court denied plaintiff's motion to amend stating that plaintiff was attempting to come "in with a whole new theory" after mediation had taken place. Defendant's motion for summary disposition was taken under advisement pending the trial court's review of plaintiff's deposition.

In its October 6, 1987, opinion, the trial court stated:

Plaintiff has come forward with evidentiary proof that a genuine issue of material fact exists. Instead, plaintiff requests leave to...