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

MARGARET SHALDA,

Plaintiff

- Appellant, UNPUBLISHED July 29, 2021

v No. 353211 Wayne Circuit Court REDICO, LLC, 150 WEST JEFFERSON OWNER LLC, and CONTINUUM SERVICES, INC, LC No. 19

- 001183

- NO

Defendants

- Appellees.

Before: M ARKEY
, P .J., and M

. J. K ELLY and S WARTZLE , JJ.

S WARTZLE
, J

. ( concurring in part and dissenting in part )

I respect fully concur in part and dissent in part. With respect to the majority’s holdings
that (1) plaintiff’s complaint sound ed in premises liability ; (2) plaintiff waived any argument t o the contrary ; and (3) plaintiff likewise waived any argument that the trial court erred in dismissing Redico, LLC , I fully concur

. I would , however, go further and affirm the trial court’s grant of summary disp osition because the hazard was open and obvious

.
When considering a motion for summary disposition under MCR 2.116(C)(10)

, a judge

must analyze and evaluate the releva nt record evidence, though the judge cannot weigh the evidence or make credibility determinations

, and the judge must draw reasonable inferences in favor of the nonmoving party

. See Smith v Globe Life Ins Co , 460 Mich 446, 457; 597 NW2d 28 (1999) ; see als o Matsushita Elec Indus Co v Zenith Radio Corp , 475 US 574, 587; 106 S Ct 1348; 89 L Ed 2d 538 (1986) (explaining that the purpose of the analogous Federal Rule of Civil
Procedure 56 is to “pierce the pleadings and to assess the pr oof” of the relevant claim)

. To analyze
and evaluate the evidence, a judge must first make sense of it

— and rarely does evidence speak for
itself. As one example, o utside of body

- cam evidence from a police officer or other first responder

, surveillance video hardly ever prese nts itself from the precise vantage point of the person in question. And yet, through our common reason and everyday experience, we can often translate (or extrapolate) the visual evidence and evaluate it from a different perspective. If we refuse to do this, then we resign ourselves to be ing trapped in a rigid perspectivism and might as well do away with MCR 2.116(C)(10) in all but the most obvious (and rare) case.- 2

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S o it is here. The record confirms that t he area outside of the e levator was well lit, nothing
obstructed plaintiff’s view when she exited the elevator , and there was a stark contrast between the light color of the marble floor and the dark color of the floor mat. Admittedly, t he surveillance
video camera wa s elevated and to the side of the elevator . Thus, the evidence from the surveillance
video does not provide this Court with a view from the precise angle that plaintiff had when she
exited the elevator. And yet, using the evid ence from the surveillance video

, as processed t hrough

our common reason and everyday experience

, we can understand what plaintiff saw or should have

seen when she exited the elevator

— a large wrinkle in the carpet.

Accordingly, t he trial court correctly concluded that there was no genuine issue of material fact that an average person of ordinary intelligence would have discovered the wrinkle in the mat upon casual inspection. Because the hazard was open and obvious, the trial cou rt did not err by granting defendants’ motion for summary disposition with respect to her premises

- liability claim

.

/s/ Brock A. Swartzle