Lawrence Rivera v. Lowe's Home Center LLC ( 2020 )

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
LAWRENCE RIVERA and KERRIE RIVERA, UNPUBLISHED
November 19, 2020
Plaintiffs-Appellants,
v No. 348032
Wayne Circuit Court
LOWE’S HOME CENTER, LLC, also known as LC No. 18-004467-NI
LOWE’S HOME CENTER, INC., and OUTER
DRIVE-39 DEVELOPMENT COMPANY, LLC,
Defendants-Appellees.
Before: GLEICHER, P.J., and K. F. KELLY and SHAPIRO, JJ.
PER CURIAM.
Plaintiff Lawrence Rivera was struck by a car in the parking lot of a “big box” store and
seriously injured. He alleges that the parking lot did not provide drivers and pedestrians with
appropriately designated crosswalks. The defense countered that there was nothing dangerous
about the parking lot and that the crosswalk was open and obvious—but Rivera hadn’t used it.
Along with a motion for summary disposition on those grounds, defendants produced a
surveillance video that captured the accident. The trial court granted summary disposition based
on the open and obvious danger doctrine.
The centerpiece of any premises liability case is evidence of an unreasonably dangerous
condition on the land. Summary disposition was properly granted because plaintiffs failed to come
forward with evidence supporting that any aspect of the parking lot was dangerous or defective.
I
Plaintiffs Lawrence and Kerrie Rivera, husband and wife, sued defendant Lowe’s Home
Center, Inc., in the Wayne Circuit Court in April 2018. After parking in the store’s lot, the
complaint alleges, they traversed the parking area and “walked onto a crosswalk which was part
of the approach to the store.” A Chevrolet Suburban had stopped within the crosswalk before
plaintiffs entered it. When Lawrence Rivera entered the crosswalk, the complaint continues, he
“was immediately struck by a vehicle operated by Byrl Henry Green, which pinned Plaintiff
between the two vehicles.” Plaintiffs’ complaint asserts that “the crosswalks and markings” were
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“confusing” and “not in compliance with recognized safety standards, and were unreasonably
hazardous and dangerous.”
One month after plaintiffs filed their complaint, Lowe’s removed the case to the United
States District Court for the Eastern District of Michigan based on diversity of citizenship. Less
than a month later, the parties filed a “joint discovery plan” pursuant to FR Civ P 26(a)(1). The
Riveras’ “statement of the case” in the discovery plan echoed the averments in their complaint.
Lowe’s stated that the accident resulted “solely” from the “actions and/or inactions of the at-fault
driver and/or the Plaintiff.” Lowe’s also raised defenses of “the lack of breach of any legal duty,
the open and obvious doctrine, and comparative negligence.”
The joint discovery plan informed the district court that the parties intended to add as a
party-defendant the owner of the property on which the Lowe’s sat, and that plaintiffs had provided
a copy of a surveillance video of the accident to Lowe’s. The parties proposed that plaintiffs would
disclose their experts on September 27, 2018.
As predicted, plaintiffs filed an amended complaint in the federal district court adding as a
defendant Outer Drive 39 Development Co., L.L.C., which the amended complaint identified as
Lowe’s “landlord.” Outer Drive 39’s addition to the case destroyed diversity of citizenship. The
federal district court remanded the action back to the Wayne Circuit Court. The case landed in the
circuit court on September 6, 2018. We mention the dates because they help to elucidate that
summary disposition rests on solid ground.
In November 2018, the circuit court entered a scheduling order providing that discovery
would close in June 2019. In lieu of filing an answer to the amended complaint, on January 15,
2019, Outer Drive 39 filed a motion for summary disposition under MCR 2.116(C)(10). Outer
Drive 39 asserted that Lawrence Rivera had not been struck by a car within the crosswalk, but
rather while he was walking through “the traffic lane for cars turning into parking lanes.” The
Chevrolet Suburban stopped for a pedestrian just short of the marked crosswalk, Outer Drive 39
claimed, and the Riveras continued walking around and behind that vehicle. A car travelling
behind the Suburban did not stop, however, rear-ending the Suburban and hitting Lawrence Rivera.
In support of this version of the events, Outer Drive 39 filed the surveillance video. The video
confirms Outer Drive’s description of the accident.
Relying primarily on Richardson v Rockwood Ctr, 275 Mich. App. 244; 737 NW2d 801
(2007), Outer Drive 39’s motion contended that plaintiffs could not prove that the parking lot
presented an unreasonable risk of harm, and that the sole proximate cause of the accident was
Green’s failure to stop. Lowe’s concurred.
One month later, plaintiffs filed a response brief complaining that discovery had not yet
closed, that defendant’s motion was “premature,” and that “there are other material facts which
will be in dispute.” The brief closed with the promise that: “The Plaintiff’s [sic] expert will very
eloquently discuss all the safety standards that are violated on the Defendant’s premises.” The
circuit court dismissed the case with the brief pronouncement that “it would be open and obvious
under Lugo [v Ameritech Corp, Inc, 464 Mich. 512; 629 NW2d 384 (2001)].”
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II
Plaintiffs challenge the circuit court’s ruling on three grounds: that the circuit court
“jumped the gun and prematurely dismissed the case solely on Lugo” grounds, that plaintiffs
pleaded “special aspects” precluding application of the open and obvious danger defense, and that
the video was inadmissible because it was not “authenticated” under MRE 901(a). None of these
assertions, which we address in reverse order, has merit.
Fundamental summary disposition principles guide our analysis of all three arguments. A
motion bought under MCR 2.116(C)(10) tests the factual sufficiency of a claim. Maiden v
Rozwood, 461 Mich. 109, 119; 597 NW2d 817 (1999). A party may be entitled to summary
disposition if, “[e]xcept as to the amount of damages, there is no genuine issue as to any material
fact . . . .” MCR 2.116(C)(10). The moving party bears the initial burden to demonstrate that it is
entitled to summary disposition. Barnard Mfg v Gates Performance Engineering, Inc, 285 Mich
App 362, 369; 775 NW2d 618 (2009). It meets this burden by “ ‘specifically identify the issues
as to which the moving party believes there is no genuine issue as to any material fact.’ ” Id.,
quoting MCR 2.116(G)(4). And the moving party must support its motion with affidavits,
depositions, admissions, or other documentary evidence that, if unrebutted, would establish a right
to summary disposition. Barnard Mfg, 285 Mich. App. at 369-370.
If the movant properly supports its motion, the burden shifts to the nonmoving party to
establish that a disputed fact exists. Id. at 370, citing Quinto v Cross & Peters Co, 451 Mich. 358,
362; 547 NW2d 314 (1996). The responding party cannot simply rest on the allegations in its
complaint. Coblentz v Novi, 475 Mich. 558, 569; 719 NW2d 73 (2006). “Affidavits, pleadings,
depositions, admissions, or other documentary evidence must be offered to survive summary
disposition.” Id. “Evidence offered in support of or in opposition to the motion can be considered
to the extent that it is substantively admissible.” Veenstra v Washtenaw Country Club, 466 Mich.
155, 163-164; 645 NW2d 643 (2002) (emphasis added), citing MCR 2.116(G)(6). The evidence
need not be admissible in the form in which it is presented. Barnard Mfg, 285 Mich. App. at 373.
A
The videotape was substantively admissible evidence despite that it was not
“authenticated.” Outer Drive 39 was not obligated to lay a foundation for the admission of the
videotape before the circuit court could consider it. See id. Plaintiffs’ authentication argument is
not well taken for a second reason: plaintiffs themselves possessed a copy of the videotape before
the motion was filed; they provided it to Lowe’s during the federal court proceedings. If plaintiffs
had any doubt about the authenticity of the videotape, they had ample opportunity to raise their
concerns. Because it was substantively admissible evidence, the circuit court properly considered
the videotape in evaluating defendants’ motion for summary disposition.
B
Plaintiffs argue that their case should not have been dismissed on open and obvious danger
grounds because the crosswalk that Rivera avoided had “special aspects” rendering it defective
and dangerous, and those aspects proximately caused the accident. Special aspects, a legal term
of art under Michigan law, refers to conditions on the land that create a “uniquely high likelihood
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of harm” or serious injury. Lugo, 464 Mich. at 519. Plaintiffs identified no particular special
aspects in their pleadings, or in response to the motion for summary disposition, or by presenting
any evidence of a special aspect. In Richardson, 275 Mich. App. at 248-249, this Court held that
even those parking lots lacking signs or “other traffic control devices” did not harbor any “special
aspects.” How the parking lot or the crosswalk in this case falls outside of Richardson and could
therefore meet the requirements of the “special aspect” doctrine remains unclear and undeveloped,
even on appeal.
In response to a motion for summary disposition under MCR 2.116(C)(10), the mere
invocation of a term like “special aspects” does not establish a triable issue of fact. Although
summary disposition is generally premature if granted before discovery has been completed, it
may be appropriate nonetheless where “further discovery does not stand a fair chance of
uncovering factual support for the proposition of the party opposing the motion.” Prysak v R L
Polk Co, 193 Mich. App. 1, 11; 483 NW2d 629 (1992). The videotape evidence, combined with
this Court’s opinion in Richardson, compel the conclusion that there were no “special aspects” to
the Lowe’s parking lot. Plaintiffs’ failure to direct this Court or the circuit court to any argument
or evidence suggesting otherwise supports that the hypothetical existence of a special aspect does
not suffice to prevent summary disposition.
C
We agree with plaintiffs that the circuit court erred by relying solely on the open and
obvious danger doctrine to dismiss this case. The circuit court skipped over the first step of the
legal analysis—determining whether the parking lot or the crosswalk was unreasonably dangerous.
Liability for injury to an invitee such as Lawrence Rivera hinges on whether the premises presented
“an unreasonable risk of harm caused by a dangerous condition on the land.” Lugo, 464 Mich. at
516. Rivera presented no evidence whatsoever on this score.
Plaintiffs insist that they planned to present such evidence after discovery closed. We note,
however, that plaintiffs pledged in the federal district court to name experts by September 27,
2018—about five months before plaintiffs filed their circuit court response to defendants’ motion
for summary disposition. The salient question is whether further discovery in the circuit court was
likely to uncover factual support for plaintiffs’ claims. Marilyn Froling Revocable Living Trust v
Bloomfield Hills Country Club, 283 Mich. App. 264, 292-293; 769 NW2d 234 (2009). The court
rules offer a plaintiff seeking to protect his or her position in that regard a foolproof method of
demonstrating that summary disposition is premature. MCR 2.116(H) states:
(1) A party may show by affidavit that the facts necessary to support the party's
position cannot be presented because the facts are known only to persons whose
affidavits the party cannot procure. The affidavit must
(a) name these persons and state why their testimony cannot be procured,
and
(b) state the nature of the probable testimony of these persons and the reason
for the party's belief that these persons would testify to those facts.
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(2) When this kind of affidavit is filed, the court may enter an appropriate order,
including an order
(a) denying the motion, or
(b) allowing additional time to permit the affidavit to be supported by
further affidavits, or by depositions, answers to interrogatories, or other discovery.
Plaintiffs failed to avail themselves of this mechanism for avoiding summary disposition
and instead provided the court a promise to produce evidence later. An affidavit signed by
Lawrence Rivera, for example, might have explained why he found the parking lot confusing. An
affidavit signed by plaintiffs’ alleged expert might have set forth a reason that a jury could consider
the parking lot defective or dangerous. Plaintiffs assert that the parking lot violated safety
standards; production of such standards may have created a genuine issue of material fact.
Standing alone, however, a promise to produce evidence in the future does not suffice to forestall
summary disposition, particularly in a case that had been pending for almost a year. Because
plaintiffs did not provide the circuit court with evidence suggesting that the parking lot presented
a danger, they did not carry their burden.
We affirm.
/s/ Elizabeth L. Gleicher
/s/ Kirsten Frank Kelly
/s/ Douglas B. Shapiro
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