Roberto Trevino v. Pulaski Civic Club ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ROBERTO TREVINO, UNPUBLISHED
September 22, 2022
Plaintiff-Appellant,
v No. 357684
Wayne Circuit Court
PULASKI CIVIC CLUB, LC No. 19-013085-NI
Defendant-Appellee.
Before: RONAYNE KRAUSE, P.J., and JANSEN and SWARTZLE, JJ.
PER CURIAM.
In this premises liability action,1 plaintiff, Roberto Trevino, appeals by right the trial
court’s order granting summary disposition in favor of defendant, the Pulaski Civic Club. We
affirm.
I. BACKGROUND
The Pulaski Civic Club is an organization that was originally founded in 1933 for the
purpose of assisting Polish immigrants. It subsequently evolved to be open to everyone. The
Club’s premises consist of a bar and a “hall.” The hall is a separate room that can be rented out
for events and is partitioned off from the bar on such occasions. One of the amenities in the hall
is a modular stage consisting of six-inch-high sections that can be placed next to or on top of each
other. On the date of the incident, the stage had been configured to be “double stacked,” i.e.,
twelve inches high, for several weeks.
On June 1, 2019, a member of the club rented the hall to host a private birthday party,
during which the hall was partitioned off from the bar. Plaintiff, a member of the club, was hired
by the celebrant’s mother to DJ the party. Plaintiff had used the stage before, but he had never
seen it in a double-stacked configuration. Plaintiff arrived at approximately 3:00 p.m. that day, by
1
Plaintiff originally also alleged a claim for negligence, but he stipulated to the dismissal of that
claim.
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which time the mother of the celebrant was already there. Plaintiff, with the assistance of another
person, set his equipment up on the stage from the front and accessed the stage by stepping up onto
the stage from the front. At approximately 5:00 p.m., plaintiff, while on the stage, discovered a
problem with one of his speakers. Plaintiff attempted to leave the stage by the side, where he saw
what appeared to be a concrete block serving as an improvised “step.” Plaintiff stepped down onto
that block, which “wobbled,” causing him to lose his balance and fall, seriously injuring his wrist.
Plaintiff’s fall was apparently not directly witnessed by anyone.
As it would turn out, the improvised step was in fact two concrete blocks (variously referred
to as patio blocks, cinder blocks, or paver blocks) stacked on top of each other. No one knew
where they came from, and they did not belong to defendant, nor were they placed there by anyone
associated with defendant. There was also almost no evidence of how long they had been there;
the only evidence was the birthday celebrant’s mother’s testimony that the blocks were already
there when she arrived. Plaintiff contends that the improvised step was a hazardous condition of
the premises. He does not allege that defendant created the hazardous condition, nor does he allege
that defendant was actually aware that the improvised step was hazardous. Rather, plaintiff alleges
that defendant was on constructive notice of the hazardous condition because it had a duty to
inspect its premises and it should have become aware of the improvised step before the date of the
birthday party. The trial court granted summary disposition in favor of defendant pursuant to MCR
2.116(C)(10), reasoning that there was insufficient evidence of how long the blocks had been
present or that defendant should have become aware that a dangerous condition existed.
II. STANDARD OF REVIEW
A grant or denial of summary disposition is reviewed de novo on the basis of the entire
record 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). A trial court may properly grant a motion
for summary disposition pursuant to 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.” Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 5; 890 NW2d 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.” West v Gen Motors Corp, 469
Mich 177, 183; 665 NW2d 468 (2003).
The courts should give the non-moving party “the benefit of any reasonable doubt” and
“should be liberal in finding that a genuine issue of material fact does exist.” Lytle v Malady, 458
Mich 153, 176-177; 579 NW2d 906 (1998). However, if a motion for summary disposition has
been properly supported, the nonmoving party may not overcome the motion based on “the mere
possibility that the claim might be supported by evidence produced at trial.” Maiden, 461 Mich at
120-121. Rather, if the moving party has either submitted evidence negating an element of the
nonmoving party’s claim or has shown that the nonmoving party’s evidence is insufficient, the
nonmoving party must affirmatively demonstrate the existence of a genuine question of material
fact. Lowrey, 500 Mich at 7-8. This Court’s “review is limited to the evidence that had been
presented to the circuit court at the time the motion was decided.” Innovative Adult Foster Care,
Inc v Ragin, 285 Mich App 466, 475-476; 776 NW2d 398 (2009).
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III. ANALYSIS
Plaintiff emphasizes that he has not alleged that defendant, or any of its employees or
agents, created the dangerous condition. Rather, plaintiff argues that the trial court erred in
granting defendant’s motion for summary disposition because defendant owed a duty to plaintiff
to inspect its premises for hidden defects, and there was a genuine issue of material fact regarding
whether defendant had constructive notice of the dangerous condition. Defendant’s duty is not
seriously disputed, and we think there is a question of fact whether defendant should have become
aware of the existence of the step. However, we cannot find a question of fact whether defendant
should be charged with knowledge that the step was dangerous.
“In a premises liability action, a plaintiff must prove the elements of negligence: (1) the
defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the
proximate cause of the plaintiff’s injury, and (4) the plaintiff suffered damages.” Buhalis v Trinity
Continuing Care Servs, 296 Mich App 685, 693; 822 NW2d 254 (2012) (quotation marks and
citation omitted). As defendant tacitly concedes, plaintiff was an invitee of defendant because he
was there for a commercial purpose. See Stitt v Holland Abundant Life Fellowship, 462 Mich 591,
604; 614 NW2d 88 (2000). Therefore, defendant owed plaintiff a duty to protect him “from
unreasonable risks of harm posed by dangerous conditions on the owner’s land.” Hoffner v
Lanctoe, 492 Mich 450, 460; 821 NW2d 88 (2012). The premises possessor may be liable for
failing to fix, guard against, or warn against dangerous conditions of which the premises possessor
knows or should know. Id. For an invitee’s claim of premises liability to succeed, “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.” Lowrey, 500 Mich at 8.
A plaintiff may prove a defendant’s liability through active negligence of itself or its
employees. Hampton v Waste Mgt of Mich, Inc, 236 Mich App 598, 604; 601 NW2d 172 (1999).
Here, plaintiff does not rely upon active negligence, but rather upon constructive notice. See
Lowrey, 500 Mich at 8-9. Constructive notice may be established if “the hazard was of such a
character, or had existed for a sufficient time, that a reasonable premises possessor would have
discovered it.” Id. at 11-12. However, a defendant may “establish its entitlement to summary
disposition by demonstrating that plaintiff failed to present sufficient evidence of notice.” Id. at
10. As discussed, there is no evidence that anyone knew how or when the improvised step was
placed next to the stage, nor is there any evidence that defendant or any person acting on
defendant’s behalf placed the step next to the stage. Therefore, plaintiff must demonstrate that
defendant “should have known of [the dangerous condition of the step on which plaintiff fell]
because of its character or the duration of its presence.” Id. at 11. Premises occupiers are obligated
to inspect the premises for dangerous conditions. Albitus v Greektown Casino, LLC, ___ Mich
App ___, ___; ___ NW2d ___ (2021) (Docket No. 356188), slip op at pp 3-4. Nevertheless,
premises owners are only obligated to “act in a reasonable manner to guard against harms that
threaten the safety and security of those who enter their land” and “are not charged with
guaranteeing the safety of every person who comes onto their land.” Hoffner, 492 Mich at 459.
In general, the owner of rented premises ceases to be liable for defects in the premises to
third parties during the tenancy of the renter, unless the defect was present at the time the premises
were rented. See Samuelson v Cleveland Iron Mining Co, 49 Mich 164, 170-171; 13 NW 499(1882); Johnson v McMillan, 69 Mich 36, 39; 36 NW 803 (1888). The evidence establishes that
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the improvised step was not present at the time the stage was set up into a “double stacked”
configuration, and use of the improvised step was unnecessary to get onto the “double stacked”
stage. Nevertheless, the evidence also establishes that the step was already present next to the
stage when the birthday celebrant’s mother arrived some time before 3:00 p.m. It is reasonable to
infer that it had been present for some time by then. The evidence also suggests that the separation
between the bar and the hall is not a permanent structure: one of defendant’s employees indicated
that the separator was a “curtain” that is pulled during private events. Although we are unaware
of the precise layout of the premises, it is nevertheless also reasonably inferable that the step might
have been visible at some point earlier in the day before defendant handed the hall over for the
birthday party. Based on the photograph of the stage provided by plaintiff,2 we think it is
reasonably inferable that the improvised step itself should have been noticed at a casual glance.
We therefore accept that there is a question of material fact whether defendant should have been
on notice of the existence of the improvised step.
However, there is no evidence suggesting that it should have been apparent that the step
was dangerous. Implicit in plaintiff’s argument is the assumption that awareness of the improvised
step would necessarily confer awareness that the improvised step constituted a hazardous
condition. Nevertheless, none of the individuals who noticed the step apparently paid it any mind,
and after plaintiff fell, no one present apparently suspected that the step caused plaintiff’s fall.
Any person who happened to look at the step would have reasonably assumed that someone else
had placed it there for a proper purpose rather than to create a trap. In the photograph, the concrete
blocks appear to be neat and orderly, and plaintiff admitted that the improvised step did not appear
unstable. As noted, premises owners are only expected to act reasonably and are not expected to
guarantee the safety of those who come onto their property. Hoffner, 492 Mich at 459.
Furthermore, premises owners’ duties do “not extend to conditions from which an unreasonable
risk cannot be anticipated.” Williams v Cunningham Drug Stores, Inc, 429 Mich 495; 500; 418
NW2d 381 (1988). Even if it is plausible that defendant might have been expected to notice the
improvised step, it is not clear that defendant should have recognized that the step was dangerous.
In contrast, for example, in Conerly v Liptzen, 41 Mich App 238, 240-241; 199 NW2d 833(1972), the plaintiff was injured in a falling elevator; the premises owner knew that the elevator
was old and had a history of malfunctioning, and this Court noted that the dangers from falling
elevators were obvious. In Butler v Ramco-Gershenson, Inc, 214 Mich App 521, 523-524; 542
NW2d 912 (1995), the plaintiff was injured while working on a construction site when pieces of a
coping block3 fell on him. The defendant was aware that the coping on the wall was in a
deteriorated state. Id. at 536-537. Although not part of this Court’s discussion, the fact that
deteriorated masonry could fall and harm anyone underneath would seem too obvious to be worth
mentioning. In Bannigan v Altland, 166 Mich 491, 492-496; 132 NW 77 (1911), the plaintiff was
2
We recognize defendant’s argument that the photograph has not been authenticated. However,
for purposes of summary disposition, defendant concedes that the photograph may be considered.
At summary disposition, evidence does not need to be admissible in form, but rather must only be
plausibly admissible in substance. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc,
285 Mich App 362, 373-374; 775 NW2d 618 (2009).
3
Coping block refers to masonry that caps or covers a wall.
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injured by a piece of glass falling from the defendant’s building, there was evidence that the
building’s windows were dilapidated, and the jury was instructed that the defect must have existed
long enough for the defendant to have discovered it. Again, the danger that broken windows could
fall and injure someone underneath is obvious. In Powers v Huizing, 9 Mich App 437, 439-440;
157 NW2d 432 (1968), the plaintiff was injured by being thrown from a toboggan following the
toboggan’s encounter with a slush buildup on the defendant’s toboggan chute. The weather had
been unseasonably warm over the preceding two days, and the defendant failed in its duty to
inspect the toboggan chute for dangerous conditions. Id. at 439, 442. The fact that slush buildup
in a toboggan run was a dangerous condition was not disputed. Id. at 442.
Although there is evidence from which it might reasonably be inferred that defendant
should have noticed the improvised step, there is no evidence that the step was obviously
dangerous. In Albitus, the plaintiff was injured when the back of a chair in which he was seated
broke, and this Court found it significant that the chair appeared normal until the plaintiff leaned
back in the chair. Albitus, ___ Mich App at ___, slip op at p 5. At most, the back of the chair
leaned back “a bit further than the others,” which was insufficient to establish that the defendant
should have realized the chair would collapse. Id. Similarly, nothing about the improvised step
here gave any outward indication that it was unstable. Furthermore, there is no evidence that the
step had been present for long enough to charge defendant with knowledge that it was unstable. If
the step had provably been there for a sufficient length of time, we think that, sooner or later,
someone on behalf of defendant should be expected to have used it or tested it. However, because
it is entirely speculative how long the step had been there, we need not consider how long would
be “long enough.” Therefore, the record does not support a reasonable inference that defendant
had constructive notice of the dangerous condition.
Affirmed. Defendant, being the prevailing party, may tax costs. MCR 7.219(A).
/s/ Amy Ronayne Krause
/s/ Kathleen Jansen
/s/ Brock A. Swartzle
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