C Sandra Lixey v. L&M Leasing Inc ( 2023 )

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
SANDRA LIXEY, UNPUBLISHED
March 23, 2023
Plaintiff-Appellant,
v No. 361603
Midland Circuit Court
L&M LEASING, INC., LC No. 20-007168-NO
Defendant-Appellee,
and
MI FLOAT, INC.,
Defendant.
Before: GLEICHER, C.J., and O’BRIEN and MALDONADO, JJ.
GLEICHER, C.J. (concurring).
I concur with the result reached by the majority, but write separately to offer a slightly
different analysis.
Plaintiff Sandra Lixey opened a door adjacent to a handwritten sign reading “bathroom,”
with an arrow she assumed pointed toward the door. The door was unlocked. A light illuminating
the area behind the door was broken. The door led to a stairway without a landing. Lixey stepped
into what she thought was a bathroom, fell down the stairs, and suffered a serious injury.
Defendant L&M Leasing, Inc., owned the building. Lixey was on the premises for
treatment with defendant MI Float, Inc., which leased office space in L&M’s building. The sole
issue presented is whether L&M had notice of conditions on the premises that Lixey identifies as
defective and dangerous: the door, the light, and the stairs.
As the majority describes, unrebutted record evidence demonstrates that MI Float created
the dangerous conditions that resulted in Lixey’s injury. Three days before the fall, an MI Float
employee left the basement door unlocked and the light on, which burned out at some point before
the accident. An MI Float employee made and posted the sign. L&M’s summary disposition
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motion asserted that it had no notice of these defects. The burden then shifted to Lixey to produce
evidence or to identify a reasonable inference that L&M possessed actual or constructive notice of
the dangers that led to her injury. See Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 10; 890 NW2d
344 (2016).
Lixey has presented no evidence supporting that L&M knew or should have known of the
unlocked door, the misleading sign, or the unlit stairway. No evidence suggests that L&M
inspected the premises, visited the premises, or had a duty to inspect the premises during the three
days before the accident. Perhaps this is why Lixey’s brief on appeal does not address notice.
Instead, Lixey’s brief focuses on L&M’s access to and control of the basement. Lixey
convincingly establishes that L&M retained possession and control of the basement. The
basement, however, was not defective or dangerous. L&M’s possession and control of the
basement had no bearing on Lixey’s injury. I would affirm on this ground.
Elizabeth L. Gleicher
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