Krystal Lowrey v. Lmps & Lmpj Inc ( 2016 )

Michigan Supreme Court
Lansing, Michigan
Syllabus
Chief Justice: Justices:
Robert P. Young, Jr. Stephen J. Markman
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen
This syllabus constitutes no part of the opinion of the Court but has been Reporter of Decisions:
prepared by the Reporter of Decisions for the convenience of the reader. Kathryn L. Loomis
LOWREY v LMPS & LMPJ, INC
Docket No. 153025. Decided December 13, 2016.
Krystal Lowrey filed a complaint in the Oakland Circuit Court against LMPS & LMPJ,
Inc., after she slipped and fell while descending a stairway at Woody’s Diner and sustained a
broken tibia and fibula. She asserted that the stairs were wet and slippery at the time of her fall,
a condition Lowrey insisted Woody’s Diner should have known about and should have remedied
or guarded against, or about which the diner should have warned its patrons. Lowrey
subsequently amended her complaint to name KSK Hospitality Group, Inc., doing business as
Woody’s Diner, as the defendant. Woody’s Diner moved for summary disposition under
MCR 2.116(C)(10). The court, Rudy J. Nichols, J., granted summary disposition in favor of
Woody’s Diner. Lowrey appealed in the Court of Appeals. The Court of Appeals, RONAYNE
KRAUSE, P.J., and MARKEY and M. J. KELLY, JJ., reversed the trial court, explaining that
Woody’s Diner was obligated to establish that it lacked notice of the hazard, which required it to
present evidence showing what a reasonable inspection of the premises would have entailed
under the circumstances the night Lowrey was injured. 313 Mich. App. 500 (2016). Woody’s
Diner applied for leave to appeal in the Supreme Court.
In a unanimous opinion per curiam, the Supreme Court, in lieu of granting leave to
appeal and without oral argument, held:
A premises owner moving for summary disposition of a premises liability claim against it
under MCR 2.116(C)(10) has the burden of demonstrating that the claimant’s evidence is
insufficient to establish an essential element of the claim or presenting affirmative evidence to
negate an element of the claim. The premises owner, however, is not required to proffer
evidence negating an element of the claim if the claimant’s evidence is insufficient to establish
an essential element of the claim. In addition, a premises owner is not liable for injuries arising
from a hazard unless it had actual or constructive notice of the hazard; the premises owner is not
required to show that a routine or reasonable inspection of the premises would have failed to
discover the hazard because it is not required to prove that it lacked actual or constructive notice.
1. A party defending against a motion for summary disposition of its negligence claim in
a premises liability case must raise a genuine issue of fact regarding each element of its claim
including whether the premises owner had actual or constructive notice of the condition that
caused the party’s injury. The premises owner is not required to present evidence to negate one
of the elements of plaintiff’s claim and is therefore not required to prove that it did not have
actual or constructive notice of the hazard. To place that requirement on the premises owner
would improperly shift the burden of proof from the plaintiff to the defendant. In this case,
Woody’s Diner only needed to show that Lowrey’s evidence was insufficient to create a genuine
issue of material fact about whether Woody’s Diner had actual or constructive notice of the
hazard because Lowrey was required to produce enough evidence to create a genuine issue of
material fact on each element of her premises liability claim to withstand Woody’s Diner’s
motion for summary disposition.
2. A premises owner moving for summary disposition of a negligence claim against it is
not required to present evidence of what would constitute a reasonable inspection of the premises
under the circumstances and whether such inspection would apprise the premises owner of the
hazard that caused its patron’s injury. Never has a premises owner, the moving party in the
motion for summary disposition in this case, been required to prove its lack of notice by
describing what kind of inspection it should have conducted and that, even if it had engaged in
such an inspection, it would have remained unaware of the hazard. Rather, Lowrey was required
to present evidence that Woody’s Diner had actual or constructive notice of the wet steps.
Lowrey failed to present any evidence that Woody’s Diner knew or should have known about the
wet steps, and the Court of Appeals improperly reversed the trial court’s grant of summary
disposition in favor of Woody’s Diner.
Court of Appeals judgment regarding notice reversed, remainder of the Court of Appeals
judgment vacated, and trial court order granting summary disposition in favor of Woody’s Diner
reinstated.
©2016 State of Michigan
Michigan Supreme Court
Lansing, Michigan
OPINION
Chief Justice: Justices:
Robert P. Young, Jr. Stephen J. Markman
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen
FILED December 13, 2016
STATE OF MICHIGAN
SUPREME COURT
KRYSTAL LOWREY,
Plaintiff-Appellee,
v No. 153025
LMPS & LMPJ, INC.,
Defendant,
and
KSK HOSPITALITY GROUP, INC.,
doing business as WOODY’S DINER,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
PER CURIAM.
This case concerns the standard for granting a motion for summary disposition and
the elements of a premises liability claim. On a snowy night, plaintiff Krystal Lowrey
went with friends to Woody’s Diner (defendant) for drinks to celebrate St. Patrick’s Day.
While exiting the diner, she fell on the stairs and injured herself. She brought this
premises liability action, and the trial court granted summary disposition in defendant’s
favor. The Court of Appeals subsequently reversed, concluding that defendant had failed
to establish that it lacked notice of the hazardous condition alleged in the complaint,
reasoning that defendant had not presented evidence of what a reasonable inspection
would have entailed under the circumstances. We conclude that in order to obtain
summary disposition under MCR 2.116(C)(10), defendant was not required to present
proof that it lacked notice of the hazardous condition, but needed only to show that
plaintiff presented insufficient proof to establish the notice element of her claim. We
conclude that defendant met its burden because plaintiff failed to establish a question of
fact as to whether defendant had notice of the hazardous condition. Accordingly, we
reverse the judgment of the Court of Appeals regarding defendant’s notice, reinstate the
trial court’s order granting summary disposition in favor of defendant on that issue, and
vacate the remainder of the Court of Appeals’ opinion.
I. FACTS AND HISTORY
Plaintiff Krystal Lowrey and her friends went to Woody’s Diner for drinks on
March 17, 2013, in celebration of St. Patrick’s Day. They arrived at approximately 12:30
a.m. and went to the dance area located on the second floor. Plaintiff and her friends
used the back stairs to travel from the dance area to the smoking patio several times
without incident while they were at the diner. Plaintiff consumed four shots of alcohol
before she and her friends left around 1:45 a.m. The group once again used the back
stairs, this time for the purpose of exiting the diner. Plaintiff was about five stairs from
the bottom when she fell forward on the stairs and landed approximately two or three
steps below. She asserted that she had slipped on a wet step. Plaintiff acknowledged that
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she had not seen any water on the stairs at any time that night, but assumed that the stairs
were wet because her backside was wet after she landed from her fall and a person “can’t
just slip on nothing.” Plaintiff did not know which of her feet had slipped on the stairs,
but thought it might have been both feet because she had lost her balance. Plaintiff and
her friends testified that many people were using the same stairs that night and that
plaintiff and her friends had not heard of anyone else slipping on the stairs or
complaining that the stairs were slippery. The manager of the diner testified that she had
not received a report of anyone else falling on the stairs that night.
After being diagnosed with and treated for a broken tibia and fibula, plaintiff sued
defendant, alleging negligence. The trial court granted defendant’s motion for summary
disposition under MCR 2.116(C)(10), holding that plaintiff failed to raise a genuine issue
of material fact regarding whether defendant had actual or constructive knowledge of the
condition of the stairs; alternatively, the court found the hazardous condition to be open
and obvious.
The Court of Appeals reversed and remanded to the trial court, stating that
“[w]hen the defendant is convinced that the plaintiff will be unable to support an element
of the claim at trial, but is unwilling or unable to marshal his or her own proofs to support
a motion under MCR 2.116(C)(10), the defendant’s recourse is to wait for trial and move
for a directed verdict after the close of the plaintiff’s proofs.” Lowrey v LMPS & LMPJ,
Inc, 313 Mich. App. 500, 510; 885 NW2d 638 (2015). The Court of Appeals also held that
defendant had failed to present evidence that it lacked notice of the hazardous condition
because it had not presented evidence of what a reasonable inspection would have
entailed under the circumstances. Finally, the Court of Appeals ruled that defendant
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could not invoke the “open and obvious danger” doctrine as a defense because it had
failed to present evidence that a reasonable person would have discovered the hazard.
Defendant sought leave to appeal in this Court, challenging the Court of Appeals’
analysis of the standard for summary disposition, its analysis of the elements for notice of
an alleged dangerous condition, and its application of the open and obvious danger
doctrine.
II. STANDARD OF REVIEW
A trial court may grant a motion for summary disposition under MCR
2.116(C)(10) when the affidavits or other documentary evidence, viewed in the light most
favorable to the nonmoving party, show that there is no genuine issue as to any material
fact and the moving party is therefore entitled to judgment as a matter of law. Quinto v
Cross & Peters Co, 451 Mich. 358, 362; 547 NW2d 314 (1996). This Court reviews de
novo the grant or denial of a motion for summary disposition to determine if the moving
party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich. 109, 118;
597 NW2d 817 (1999).
III. ANALYSIS
There are two issues in the Court of Appeals’ opinion that require our attention.
The first pertains to the standard for granting a motion for summary disposition under
MCR 2.116(C)(10). MCR 2.116 provides in pertinent part:
(B) Motion.
(1) A party may move for dismissal of or judgment on all or part of a
claim in accordance with this rule. A party against whom a defense is
asserted may move under this rule for summary disposition of the defense.
A request for dismissal without prejudice under MCL 600.2912c must be
made by motion under MCR 2.116 and MCR 2.119.
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* * *
(C) Grounds. The motion may be based on one or more of these
grounds, and must specify the grounds on which it is based:
* * *
(10) Except as to the amount of damages, there is no genuine issue
as to any material fact, and the moving party is entitled to judgment or
partial judgment as a matter of law.
* * *
(G) Affidavits; Hearing.
* * *
(4) A motion under subrule (C)(10) must specifically identify the
issues as to which the moving party believes there is no genuine issue as to
any material fact. When a motion under subrule (C)(10) is made and
supported as provided in this rule, an adverse party may not rest upon the
mere allegations or denials of his or her pleading, but must, by affidavits or
as otherwise provided in this rule, set forth specific facts showing that there
is a genuine issue for trial. If the adverse party does not so respond,
judgment, if appropriate, shall be entered against him or her.
The moving party may thus 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, 451 Mich. at 362
(quotation marks and citation omitted). This Court has further described the
nonmovant’s burden to avoid summary disposition after the movant has satisfied its
burden through one of these two courses of actions:
Where the burden of proof at trial on a dispositive issue rests on a
nonmoving party, the nonmoving party may not rely on mere allegations or
denials in pleadings, but must go beyond the pleadings to set forth specific
facts showing that a genuine issue of material fact exists. McCart v J
Walter Thompson, 437 Mich. 109, 115; 469 NW2d 284 (1991). If the
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opposing party fails to present documentary evidence establishing the
existence of a material factual dispute, the motion is properly granted.
McCormic v Auto Club Ins Ass’n, 202 Mich. App. 233, 237; 507 NW2d 741
(1993). [Quinto, 451 Mich. at 362-363.]
This Court reaffirmed Quinto and the proper application of MCR 2.116(C)(10) in
Maiden, 461 Mich. at 121, stating that “[a] litigant’s mere pledge to establish an issue of
fact at trial cannot survive summary disposition under MCR 2.116(C)(10). The court rule
plainly requires the adverse party to set forth specific facts at the time of the motion
showing a genuine issue for trial.”
In this case, defendant moved for summary disposition under MCR 2.116(C)(10).
Plaintiff was an invitee of defendant and her negligence claim is based on premises
liability. In order to successfully advance such a claim, 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. Riddle v McLouth Steel Prod Corp,
440 Mich. 85, 96; 485 NW2d 676 (1992). A premises owner breaches its duty of care
when it “knows or should know of a dangerous condition on the premises of which the
invitee is unaware and fails to fix the defect, guard against the defect, or warn the invitee
of the defect.” Hoffner v Lanctoe, 492 Mich. 450, 460; 821 NW2d 88 (2012).
The Court of Appeals recognized that “plaintiff must be able to prove that the
premises possessor had actual or constructive notice of the dangerous condition at
issue[.]” Lowrey, 313 Mich. App. at 510. It also understood that defendant would be
entitled to summary disposition if there was no question of fact that defendant lacked
such notice. Id. Yet, the Court of Appeals determined that “the trial court erred to the
extent that it required [plaintiff] to present evidence to establish a question of fact as to
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whether [defendant] had actual notice[.]” Id. at 512. The Court of Appeals erroneously
shifted the burden to defendant by ruling that because defendant “failed to present
evidence that, if left unrebutted, would establish that it did not have actual or constructive
notice of the condition; [plaintiff] . . . had no obligation to come forward with evidence
establishing a question of fact as to that element . . . .” Id. at 504. Defendant is not
required to go beyond showing the insufficiency of plaintiff’s evidence. The Court of
Appeals erred when it imposed an additional requirement on defendant: to proffer
evidence to negate one of the elements of plaintiff’s claim. As discussed, the rule is well
established that a moving party may be entitled to summary disposition as a result of the
nonmoving party’s failure to produce evidence sufficient to demonstrate an essential
element of its claim. See, e.g., Bernardoni v Saginaw, 499 Mich. 470; 886 NW2d 109
(2016) (granting summary disposition to the defendant because the defendant
demonstrated that the plaintiff’s evidence was insufficient to establish an essential
element of her claim—the defendant’s knowledge of the alleged defect). The Court of
Appeals erred to the extent that its opinion is inconsistent with this standard for deciding
summary disposition motions under MCR 2.116(C)(10).
The second issue we must clarify pertains to the notice element of a premises
liability claim. While the Court of Appeals correctly noted that “[t]o establish a claim of
premises liability, the plaintiff must be able to prove that the premises possessor had
actual or constructive notice of the dangerous condition at issue,” Lowrey, 313 Mich. App.
at 510, the Court of Appeals both improperly shifted the burden to defendant to prove its
lack of notice and imposed a new element necessary to prove such lack of notice:
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[A] premises possessor who moves for summary disposition on the ground
that he or she did not have constructive notice of the dangerous condition
will normally have to present evidence to establish what constitutes a
reasonable inspection under the circumstances to permit an inference that,
given the nature of the hazard, he or she would not have discovered the
hazard even if he or she had performed that inspection. [Lowrey, 313 Mich
App at 515.][1]
However, this Court has never required a defendant to present evidence of a routine or
reasonable inspection under the instant circumstances to prove a premises owner’s lack of
constructive notice of a dangerous condition on its property. The Court of Appeals erred
when it imposed this new condition on premises owners seeking summary disposition.
Rather, as earlier discussed, defendant could establish its entitlement to summary
disposition by demonstrating that plaintiff failed to present sufficient evidence of notice.
To prevail on her claim, plaintiff had to establish that defendant, as a premises owner,
possessed actual or constructive notice of the dangerous condition. We have described
liability based on a premises owner’s notice of a dangerous condition as follows:
The proprietor is liable for injury resulting from an unsafe condition caused
by the active negligence of himself and his employees; and he is liable
when the unsafe condition, otherwise caused, is known to the storekeeper
or is of such a character or has existed a sufficient length of time that he
should have knowledge of it. [Carpenter v Herpolsheimer’s Co, 278 Mich.
697, 698; 271 N.W. 575 (1937) (citation omitted).][2]
1
To the extent that Grandberry-Lovette v Garascia, 303 Mich. App. 566; 844 NW2d 178
(2014), supports the Court of Appeals’ position regarding a defendant’s burden of proof
on a motion for summary disposition or the elements necessary to prove constructive
notice, it was incorrect. See Lowrey, 313 Mich. App. at 512-520.
2
We have described the duty a landowner owes to an invitee as “[an] obligation to also
make the premises safe, which requires the landowner 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 NW2d 88
8
Therefore, in order to show notice, plaintiff had to demonstrate that defendant knew
about the alleged water on the stairs or should have known of it because of its character
or the duration of its presence. See, e.g., Serinto v Borman Food Stores, 380 Mich. 637,
640-641; 158 NW2d 485 (1968) (stating that premises liability exists when the hazard is
“known to the storekeeper or is of such a character or has existed a sufficient length of
time that he should have had knowledge of it”) (emphasis omitted).
We hold that plaintiff failed to proffer evidence sufficient to demonstrate a
question of fact regarding defendant’s actual or constructive notice of the hazardous
condition, and defendant was entitled to summary disposition on this basis. As it relates
to actual notice, plaintiff herself did not see any water on the stairs at any time that night,
and defendant’s manager testified that no customers or employees had reported water on
the stairs or any accidents on the stairs that night. Nor did plaintiff or her friends hear
any other customers expressing concerns about water on the stairs. Plaintiff alleged that
an employee of the bar was standing at the bottom of the stairs and witnessed her fall, but
neither plaintiff nor any of her friends were able to identify the employee. Even
assuming an employee was present, his presence would not by itself have indicated that
he knew of the water on the step before plaintiff’s fall. Thus, plaintiff presented no
evidence that defendant had actual knowledge of the hazardous condition.
(2000). The plaintiff, however, bears the burden of proof of establishing that the
defendant breached this duty of care, i.e., the defendant knew or should have known “of a
dangerous condition on the premises of which the invitee [was] unaware and fail[ed] to
fix the defect, guard against the defect, or warn the invitee of the defect.” Hoffner v
Lanctoe, 492 Mich. 450, 460; 821 NW2d 88 (2012).
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Plaintiff likewise failed to present any evidence of constructive notice, i.e., that the
hazard was of such a character, or had existed for a sufficient time, that a reasonable
premises possessor would have discovered it. Plaintiff and her friends traversed the stairs
several times during the evening without incident, evidence which would tend to support
the conclusion that the hazardous condition that caused plaintiff’s fall had not been
present on the steps for the entirety of the evening. Nor did plaintiff present any evidence
as to when the condition arose. Goldsmith v Cody, 351 Mich. 380, 389; 88 NW2d 268
(1958) (granting summary disposition in favor of the defendant because “[t]he missing
link in [the] plaintiff’s case [was] any proof as to when the [hazardous condition arose]”).
Finally, plaintiff presented no evidence that the hazardous condition in this case was of
such a character that the defendant should have had notice of it. In fact, no evidence
concerning the character of the condition was presented; plaintiff’s assumption that the
stairs must have been wet because her pants were wet after her fall does not support any
particular conclusion concerning the character of the condition. The Court of Appeals
erred by reversing the trial court’s grant of summary disposition to defendant because
plaintiff failed to support an essential element of her claim—defendant’s notice of the
hazardous condition. 3
In summary, the Court of Appeals (1) improperly altered the burden of proof a
moving party must meet to obtain summary disposition under MCR 2.116(C)(10) in a
negligence action based on premises liability; (2) improperly required defendant to
3
Given that defendant is entitled to summary disposition because plaintiff failed to
establish an essential element of her claim, we need not address the Court of Appeals’
open and obvious danger determination. Rather, we vacate that portion of its opinion.
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provide “proof of reasonable inspection” to show that it lacked constructive notice of the
alleged harm; and (3) erred by reversing the trial court’s grant of summary disposition to
defendant. Accordingly, we reverse the judgment of the Court of Appeals regarding
defendant’s notice, reinstate the trial court’s order granting summary disposition in favor
of defendant on that issue, and vacate the remainder of the Court of Appeals’ opinion.
Robert P. Young, Jr.
Stephen J. Markman
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Joan L. Larsen
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