C Loretta Smith v. Empire Property Investments 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
LORETTA SMITH, UNPUBLISHED
August 10, 2023
Plaintiff-Appellant,
v No. 361468
Wayne Circuit Court
EMPIRE PROPERTY INVESTMENTS, INC., LC No. 20-015722-NO
EMPIRE PROPERTY INVESTMENTS, LLC, NEW
CENTURY, LLC, and ELEGANT HOMES
REALITY, INC.,
Defendants,
and
NAWAL YOUSSEF,
Defendant-Appellee.
Before: GLEICHER, C.J., and JANSEN and HOOD, JJ.
GLEICHER, C.J. (concurring).
I concur with the majority’s determination that because defendant lacked actual or
constructive notice of the hole in the porch, summary disposition was warranted. I write separately
to highlight the facts driving my conclusion.
Plaintiff’s counsel conceded at oral argument that no evidence suggests that defendant had
actual notice of the porch’s condition. Defendant purchased the property only a month before the
accident and had never visited it. The inspection report failed to identify the defect and, critical to
my analysis, even the tenant had no idea that the hole was there. During the three months that the
tenant lived in the home, she had never inspected (or apparently even walked on) the back porch.
Indeed, the tenant never saw the hole before her mother’s fall because during most of her tenancy
the porch was covered in snow. The sole remaining question is whether evidence of record
supports that defendant had constructive notice of the defect.
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“Generally, the question of whether a defect has existed a sufficient length of time and
under circumstances that the defendant is deemed to have notice is a question of fact, and not a
question of law.” Banks v Exxon Mobil Corp, 477 Mich 983, 984; 725 NW2d 455 (2007), citing
Kroll v Katz, 374 Mich 364, 371; 132 NW2d 27 (1965). But every fact question must rest on
evidence. No evidence suggested or even hinted that defendant should have known that the hole
existed. I accept that the hole was likely present for a long time, and that the inspection missed it.
But given that the tenant did not know it was there, the inspector missed it, and defendant never
personally set foot on the property, no evidence supports a constructive notice claim. Because no
evidence supports plaintiff’s constructive notice claim, the majority correctly affirms summary
disposition in this case.
/s/ Elizabeth L. Gleicher
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