D'AMBROSIO v. McCready ( 1997 )

Bandstra, J.

Plaintiff appeals as of right from an order granting summary disposition to defendant. Plaintiff sued defendant to recover for injuries sustained in a fall down a staircase located in defendant’s home. Plaintiff claimed that he slipped on a towel left on the steps by defendant.. Defendant moved for summary disposition, claiming that she was entitled to judgment as a matter of law pursuant to MCR 2.116(C)(10) (no genuine issue regarding any material fact). The trial court granted the motion. We affirm.

On the day of the accident, plaintiff went to defendant’s home to help her prepare for a party she was giving for a friend. At the time, plaintiff and defendant had a romantic relationship, and plaintiff had been a guest at defendant’s home on about twenty prior occasions. After various evening activities not relevant to this appeal,¹ the parties returned to defendant’s home. They had a discussion in the laundry room before plaintiff went to sleep in defendant’s upstairs bedroom. He did not see anything lying on the staircase as he ascended. Defendant retired to bed a short time later.

Sometime after midnight, plaintiff awoke and decided to go downstairs to have a cigarette and a glass of water. Defendant remained asleep. The lights, in the upstairs bedroom were off. At the top of the staircase, just outside defendant’s bedroom door, is a landing with a light located in the ceiling above it. That light is activated by a switch located in this landing area. There is some indication in the record that a second switch located in the upstairs landing area activates a light on the first floor of the house. Plaintiff claims that he did not know these switches would activate lights that would illuminate the staircase. Plaintiff did not activate either switch before descending the stairs. The front hail area of the staircase (located on the first floor of the house) was dimly lit from an artificial light burning in the kitchen and the natural moonlight shining in through glass partitions next to the living room door. Plaintiff believed that the staircase was sufficiently illuminated before he descended.

Plaintiff claims that, as he was descending the staircase, he slipped on a blue towel that was located on approximately the fifth step from the bottom of the staircase. Plaintiff claims that defendant left the towel on the step sometime after he went to bed. Defendant denied ever placing or seeing a towel on the steps that night. According to plaintiff, the towel was not visible because, given the lighting conditions that existed, it blended in with the stairs’ wood trim. As a result of the fall, plaintiff sustained severe injuries that left him a quadriplegic.

Both parties and, apparently, the trial court consider plaintiff to have been an invitee. This is incorrect. Notwithstanding the fact that plaintiff was a social guest invited to defendant’s house on the night of the accident, he legally was a licensee. Preston v Sleziak, 383 Mich 442, 451-453; 175 NW2d 759 (1970). In Preston, our Supreme Court adopted § 342 of the Second Restatement of Torts as “best express [ing]” the duty owed by a property owner to a licensee:

“A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,

“(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and

“(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and

“(c) the licensees do not know or have reason to know of the condition and the risk involved.” [Preston, supra at 453, quoting 2 Restatement Torts, 2d, § 342, p 210.]

Under § 342(a), a defendant property owner is potentially liable to a licensee only for harm caused by dangerous conditions that the defendant knows of or of which the defendant has reason to know. This is in contrast to the duty owed to an invitee where a defendant property owner is also liable for harm caused by conditions that would have been discovered “by the exercise of reasonable care . . . .” Restatement, § 343, p 215. The Restatement makes the following distinction between duties owed to licensees and invitees:

One who holds his land open for the reception of invitees is under a greater duty in respect to its physical condition than one who permits the visit of a mere licensee. ... [A] licensee is entitled to expect only that he will be placed upon an equal footing with the possessor himself by an adequate disclosure of any dangerous conditions that are known to the possessor. ... To the invitee the possessor owes not only this duty, but also the additional duty to exercise reasonable affirmative care to see that the premises are safe for the reception of the visitor, or at least to ascertain the condition of the land .... [Restatement, § 343, comment b, p 216.]

Applying this principle to the instant case, we conclude that summary disposition was appropriately granted to defendant. While the determination of a motion brought under MCR 2.116(C)(10) requires that we draw “all reasonable inferences” in plaintiffs favor, Bertrand v Alan Ford, Inc, 449 Mich 606, 618; 537 NW2d 185 (1995), we nonetheless conclude that there was no genuine issue of material fact with respect to defendant’s knowledge regarding the towel.

Accepting plaintiff’s account that there was a towel on the stairs (and rejecting defendant’s contrary claim),² there is insufficient evidence to create a genuine issue of fact whether defendant had knowledge or reason to know that the towel was there. Defendant denies that there was any towel whatsoever. In response, plaintiffs factual account (and resulting theory of culpability) keeps changing. At his deposition, plaintiff claimed the towel he saw was neatly folded, suggesting that it had been deliberately placed on the stairs by defendant. However, on appeal, plaintiff argues that the trial court’s implicit finding that defendant had intentionally and carefully placed the towel on the stairs “is not supported in the record, and furthermore does not make sense.” Instead, plaintiff now argues that defendant inadvertently and unknowingly “dropped or misplaced” the towel. But, at his deposition, plaintiff admitted that he never asked defendant whether this might have occurred. He simply claimed that it was “obvious” from the fact that he and defendant were in the laundry room conversing before he went to bed. However, defendant flatly stated at her deposition that, while a conversation occurred in the laundry room, she never works on laundry late at night and did not do so before the accident.

Defendant could only be liable for dangers of which she knew or had reason to know; she had no obligation to inspect the stairway to protect plaintiff, a licensee, from unknown dangers. Preston, supra. Plaintiffs ever-changing and uncorroborated account presents nothing more than his “pure speculation or conjecture” that defendant knew or had reason to know that a towel was on the stairs presenting a dangerous condition at the time of the accident. See Skinner v Square D Co, 445 Mich 153, 165; 516 NW2d 475 (1994). Summary disposition was appropriately granted.³

In light of our determination that summary disposition was properly granted for this reason, we need not review whether it was also properly granted for the reason employed by the trial court, i.e., that plaintiff’s accident resulted from his failure to turn on an available light and thus make the “casual inspection” required when confronting an open and obvious danger. See Novotney v Burger King Corp (On Remand), 198 Mich App 470, 474-475; 499 NW2d 379 (1993).

Affirmed.

McDonald, P.J., concurred.

1 During the evening, both plaintiff and defendant consumed various alcoholic beverages, but this was not considered by the trial court in issuing the order granting summary disposition to defendant.

2 The evidence that there was a towel at all is extremely slim. Plaintiff, who claimed at his deposition that he saw a towel before falling, also admitted that he does not know where the towel went after the fall, that he did not ask defendant how the towel got there, that he did not mention the existence of the towel or its causing his fall to any of the people at the scene or involved with his care thereafter, and that he only mentioned the existence of the towel to his attorney. Apart from his own account, plaintiff has come forward with no testimony from any person at the scene of the accident suggesting that a towel was involved. Defendant flatly denies the existence of any towel on the stairs.

3 As noted earlier, this case was erroneously treated below as one involving an invitee, and the trial court did not use this reasoning (applicable only to licensees) as the basis for the grant of summary disposition. Nonetheless, we will affirm summary disposition appropriately granted, albeit for the wrong reason. Hawkins v Dep’t of Corrections, 219 Mich App 523, 528; 557 NW2d 138 (1996).