If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

MATTHEW A. STOUT,

Plaintiff-Appellant,

UNPUBLISHED

November 9, 2021

v No. 355608

Muskegon Circuit Court

CINDY M. CHAPMAN, LC No. 20-000826-NI

Defendant-Appellee.

Before: MURRAY, C.J., and M. J. KELLY and O’BRIEN, JJ.

PER CURIAM.

In this premises liability action, plaintiff, Matthew Stout, appeals as of right the trial court’s 

order granting defendant, Cindy Chapman, summary disposition under MCR 2.116(C)(10). We 

affirm.

I. BACKGROUND

This case stems from injuries plaintiff incurred after falling through the stairs leading to 

defendant’s basement. Defendant’s basement is not accessible from her house; the only way to 

access it is through a storm door from the outside. In March 2017, defendant discovered that she 

had a leak in her basement, so she hired plaintiff—an experienced handyman—to conduct repairs. 

Plaintiff went to defendant’s house on March 7, 2017, and during the course of his repairs, he went 

up and down the basement stairs five to seven times without incident. On his last trip down the 

stairs, however, the first or second stair collapsed, and he fell through the stairs, breaking his left 

ankle.

Pictures of the stairs after the collapse were taken on March 22, 2017, and they are included 

in the lower court record. In those photos, the wood for the stringers—the boards on the sides of 

the staircase to which the steps are attached—is clearly aged. The fasteners at the top of the steps

are also visible, and they appear rusty.

Plaintiff returned to the defendant’s basement “months after” his fall, at which time the 

steps that had collapsed were gone. Plaintiff believed that they had been burned by his father, who 

was in a relationship with defendant at the time. The stringers, however, were still at defendant’s 
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house, and plaintiff took them home. Photographs of the stringers, taken in 2020, are included in 

the lower court record. Plaintiff hired an expert to inspect the stringers, and the expert prepared a 

report in which he opined that the stringers were “visibly rotting” and that the deterioration would 

have occurred “over years or decades.” The expert further opined that the rot would have been 

visible because the bottoms of the stringers were rotting and “the front of the staircase had no 

planks on the ‘riser’ portion of the stairs.”

In February 2020, plaintiff filed a complaint against defendant. Eventually, defendant 

moved for summary disposition under MCR 2.116(C)(10), arguing that she did not breach any 

duty of care to plaintiff because she did not have notice of the defective condition of the stairs. 

Following oral argument, the trial court agreed that defendant lacked actual and constructive notice 

and granted defendant’s motion for summary disposition. Plaintiff now appeals.

II. NOTICE

Plaintiff first argues that the trial court erred by concluding that he failed to proffer 

sufficient evidence from which a reasonable juror could conclude that defendant had notice of the 

dangerous condition. We disagree.

A. STANDARD OF REVIEW

Appellate courts review de novo a trial court’s decision on a motion for summary 

disposition. Hoffner v Lanctoe, 492 Mich 450, 459; 821 NW2d 88 (2012). The trial court granted 

defendant’s motion for summary disposition under MCR 2.116(C)(10). “A motion made under 

MCR 2.116(C)(10) tests the factual sufficiency of a claim, and when the proffered evidence fails 

to establish a genuine issue of material fact, the moving party is entitled to judgment as a matter 

of law.” Hoffner, 492 Mich at 459. In reviewing a (C)(10) motion, this Court “considers affidavits, 

pleadings, depositions, admissions, and other evidence submitted by the parties, 

MCR 2.116(G)(5), in the light most favorable to the party opposing the motion.” Maiden v 

Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). A genuine issue of material fact exists 

when, after viewing the evidence in a light most favorable to the nonmoving party, reasonable 

minds could differ on the issue. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 

8 (2008).

B. ANALYSIS

“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.” Estate of 

Trueblood v P&G Apartments, LLC, 327 Mich App 275, 285; 933 NW2d 732 (2019) (quotation 

marks and citation omitted). It is undisputed that plaintiff was an invitee on defendant’s land. “In 

general, a premises possessor owes a duty to an invitee to exercise reasonable care to protect the 

invitee from an unreasonable risk of harm caused by a dangerous condition on the land.” Lugo v 

Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). This duty extends only to 

conditions that the premises possessor knows of or should have known about. Lowrey v LMPS & 

LMPJ, Inc, 500 Mich 1, 8; 890 NW2d 344 (2016). That is, in order to prevail in a premises liability 
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action, the plaintiff must “establish that defendant, as a premises owner, possessed actual or 

constructive notice of the dangerous condition.” Id. at 10. Constructive notice may arise from the 

passage of time, from the type of condition involved, or from a combination of the two elements. 

Banks v Exxon Mobil Corp, 477 Mich 983, 983-984; 725 NW2d 455 (2007). However, “[t]he 

mere existence of a defect or danger is not enough to establish liability . . . .” Kroll v Katz, 374 

Mich 364, 373; 132 NW2d 27 (1965) (quotation marks and citation omitted).

Here, plaintiff did not present any evidence of actual notice. Defendant testified that she 

never noticed any defects in the staircase, and plaintiff, an experienced handyman who walked up 

and down the stairs five to seven times on the day of the accident, similarly never noticed any 

defects. Moreover, during the hearing on defendant’s motion for summary disposition, plaintiff 

conceded that defendant did not have actual knowledge of the allegedly dangerous condition. 

Accordingly, the trial court properly determined that there was no question of fact that defendant 

did not have actual notice of the at-issue condition.

The remaining question, and the crux of plaintiff’s argument on appeal, is whether plaintiff 

submitted sufficient evidence from which a reasonable juror could conclude that defendant had 

constructive notice of the at-issue condition. Again, no one noticed any defects in the staircase 

before it fell, not even plaintiff, an experienced handyman. Plaintiff’s expert nevertheless opined

in his report that, when he observed the stringers, the bottoms of the stringers were visibly rotting, 

and that, based on defendant’s testimony that the bottoms of the stringers were visible, this rot at 

the bottoms of the stringers would have been discovered upon reasonable inspection. In our 

opinion, however, the condition at the base of the steps would not have alerted defendant to the 

danger that the stairs attached to the stringers could collapse. In other words, this evidence does 

not establish a question of fact whether defendant should have known about the dangerous 

condition. We therefore conclude that plaintiff has failed to come forth with sufficient evidence 

to establish a question of fact whether defendant had constructive notice of the dangerous 

condition, so summary disposition in favor of defendant was proper. See Lowrey, 500 Mich at 9 

(explaining that, to be entitled to summary disposition, a “[d]efendant is not required to go beyond 

showing the insufficiency of [the] plaintiff’s evidence”).

Plaintiff argues that the trial court erred by concluding that no reasonable juror could 

conclude that defendant had constructive notice of the defective condition because plaintiff’s 

expert opined that the staircase had been rotting for years. It is true that a plaintiff can establish 

constructive notice if he or she can establish that the defendant “should have known of [the 

condition] because of its character or the duration of its presence.” Lowrey, 500 Mich at 11. See 

also Banks, 477 Mich at 983-984. This is a common-sense principle. It supposes that a defendant 

should have known about a condition because it had existed for such a time or was of such a 

character that someone should have noticed it, like grapes that had been on the floor of a checkout 

lane for an hour, see Clark v Kmart Corp, 465 Mich 416, 421; 634 NW2d 347 (2001), a hole in a 

rug just inside a doorway that numerous people traversed through, see Yarington v Huck, 218 Mich 

100, 103-104; 187 NW 298 (1922), or a hole in pavement that had existed for months, see Cruz v 

City of Saginaw, 370 Mich 476, 481; 122 NW2d 670 (1963); Siegel v Detroit City Ice & Fuel Co, 

324 Mich 205, 211-212; 36 NW2d 719 (1949). In each situation, a reasonable person observing 

the condition clearly could have noticed and been alerted to the dangerous condition upon 

reasonable inspection, and so each case concluded that the defendant had constructive notice of 

the condition because it had existed for such a time or was of such a character that someone should 
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have noticed it. As previously explained, plaintiff has failed to come forth with evidence from 

which a reasonable juror could infer that defendant could have noticed and been alerted to the 

dangerous condition, so the trial court properly granted summary disposition in favor of defendant.

III. VIOLATION OF SCHEDULING ORDER

Plaintiff also argues that the trial court abused its discretion when it considered defendant’s 

motion for summary disposition even though defendant supplemented her allegedly deficient 

motion within 21 days of the hearing date in violation of MCR 2.116(G)(1)(a)(i). We disagree.

A. STANDARD OF REVIEW

The trial court’s decision to rule on a party’s motion for summary disposition even though 

the motion was filed after the scheduling order deadline had elapsed is reviewed for an abuse of 

discretion. See EDI Holdings LLC v Lear Corp, 469 Mich 1021; 678 NW2d 440 (2004). “An 

abuse of discretion occurs when the decision falls outside the range of reasonable and principled 

outcomes.” Pioneer State Mut Ins Co v Wright, 331 Mich App 396, 405; 952 NW2d 586 (2020).

B. ANALYSIS

A motion for summary disposition under MCR 2.116 “must be filed and served at least 21 

days before the time set for the hearing,” unless a different period is set by the trial court. 

MCR 2.116(G)(1)(a)(i). Pursuant to the scheduling order and the adjournment of case evaluation, 

the last day that the trial court would hear a motion for summary disposition was November 12, 

2020. In accordance with MCR 2.116(G)(1)(a)(i), defendant filed her original motion for 

summary disposition on October 22, 2020—21 days before November 12, 2020. Defendant then 

amended her motion on October 27, 2020 to include the transcripts of the depositions. Therefore, 

defendant filed her amended motion for summary disposition only 16 days before the time set for 

the hearing in violation of MCR 2.116(G)(1)(a)(i).

For plaintiff to prevail on his claim that the trial court abused its discretion when it 

considered defendant’s motion for summary disposition despite defendant violating MCR 

2.116(G)(1)(a)(i), plaintiff had to show that the noncompliance resulted in prejudice; otherwise, 

any error was harmless. Accord Baker v DEC Intern, 218 Mich App 248, 262; 553 NW2d 667 

(1996).

On appeal, plaintiff fails to explain how he was prejudiced by the trial court’s decision to 

rule on defendant’s amended motion for summary disposition, despite the motion’s procedural 

deficiencies. Indeed, it is unclear how plaintiff could be prejudiced by defendant merely including 

the correct quotations and citations from the depositions in her amended motion for summary 

disposition. Accordingly, without any showing of prejudice, reversal is not warranted, and there 

is no basis on which to conclude that the trial court abused its discretion by accepting defendant’s 

amended motion for summary disposition.
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Affirmed.

/s/ Christopher M. Murray

/s/ Colleen A. O’Brien