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

LISA KASTL,

Plaintiff-Appellant,

UNPUBLISHED

June 27, 2024

v No. 363987

Wayne Circuit Court

GREEKTOWN CASINO, LLC, LC No. 21-010776-NO

Defendant-Appellee.

Before: YATES, P.J., and BORRELLO and GARRETT, JJ.

PER CURIAM.

On New Year’s Eve in 2018, plaintiff, Lisa Kastl, and her husband went to the Greektown 

Casino in Detroit to celebrate. While at the casino, plaintiff drank a substantial amount of alcohol 

and then went to a restroom on the second floor of the casino. Plaintiff fell and hit her head on the 

bathroom floor. Plaintiff filed a claim for premises liability against defendant, Greektown Casino, 

LLC, but the trial court awarded summary disposition to defendant under MCR 2.116(C)(10). The 

trial court ruled that the slippery spot on the bathroom floor was an open and obvious hazard, and 

that plaintiff’s claim was foreclosed by MCL 600.2955a(1) because plaintiff’s intoxication was an 

absolute bar to recovery. The trial court’s application of the open and obvious doctrine no longer 

supports an award of summary disposition in light of Kandil-Elsayed v F & E Oil, Inc, 512 Mich 

95; 1 NW3d 44 (2023), but the voluntary intoxication rationale justifies summary disposition, so 

we shall affirm the award of relief under MCR 2.116(C)(10) on that basis alone.

I. FACTUAL BACKGROUND

On December 31, 2018, plaintiff and her husband visited defendant’s casino in downtown 

Detroit to celebrate New Year’s Eve with dinner and gambling. Plaintiff testified that, while she 

was at the casino, she “drank alcohol” and “had a few drinks.” At roughly 6:00 p.m. that evening, 

plaintiff went to a casino restroom, where she “slipped and fell and banged [her] head” on the floor 

so hard she “saw stars.” According to plaintiff, she walked into the restroom on her own and the 

floor was “cold and wet” after she fell. At the time of her fall, plaintiff was wearing high-heeled 

shoes. She testified that she does not usually wear heels because she broke her foot wearing high 

heels a few years ago. After her fall at the casino, plaintiff suffered pain in her head and neck and 
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had recurring headaches. At her deposition, plaintiff testified she suffers from headaches, which 

she attributed to her accident in the restroom at defendant’s casino.

Elexia Goins, an employee of defendant, was working on the night of the incident and saw 

plaintiff’s fall. Later that evening, Goins drafted a “team member statement” on an incident-report 

form that defendant provided to her. Goins stated that, at about 6:05 p.m., she had been “finishing 

up cleaning [her] restroom” and “was putting [her] cart back into the [restroom] closet” when she

noticed a “handful of guests” enter the restroom. Plaintiff was the last guest of the group entering 

the restroom. As plaintiff entered the restroom, “she tried to move around someone [and] kind of 

tripped over her heel[.]” According to Goins, the “tiling on the floor [was] a slippery texture which 

may have made her balance fall off as well.” An Emergency Medical Technician (EMT) arrived, 

and plaintiff told him how she “tripped over her heels and that ‘[her husband] told her not to wear 

those shoes.’ ” Plaintiff’s husband asked Goins “where was [the] floor blower” when Goins was 

cleaning. Plaintiff then stated: “It wasn’t their fault I slipped, I can’t walk in these shoes, I’m so 

embarrassed.” Plaintiff told the EMT she had taken “percs” and “norcos,” referring to prescription 

painkillers.

According to the EMT, who arrived on the scene at approximately 6:08 p.m., plaintiff had 

suffered injuries to her “head, neck, [and] upper back.” Plaintiff “lost her balance [and] fell when 

she [saw] a floor dryer up against the wall in the ladies [sic] restroom.” During the evaluation by 

the EMT, plaintiff reported that she knew who she was and where she was, but she was confused 

about the date and believed it was Christmas Day. In the EMT’s report, he stated “no” regarding

whether there was “[e]vidence of intoxication.” But the report indicated that, “yes,” plaintiff had 

exhibited an “[a]ltered mental status.” At 6:50 p.m. that evening, a sample of plaintiff’s blood was

drawn for testing. Toxicology results revealed that plaintiff had a blood alcohol content of 0.185 

grams of alcohol per 100 milliliters of blood.1

On August 24, 2021, plaintiff filed a complaint alleging defendant was liable for plaintiff’s 

injuries based on a premises liability theory. On September 12, 2022, defendant filed a motion for

summary disposition, asserting that plaintiff caused her own injuries by tripping on her heels, the 

condition was open and obvious without special aspects, and voluntary intoxication barred plaintiff 

from recovery under MCL 600.2955a(1). After listening to oral arguments on November 10, 2022, 

the trial court ruled from the bench that defendant was entitled to summary disposition under MCR 

2.116(C)(10) because (1) there was not sufficient evidence to establish how long the restroom floor 

had been wet, (2) defendant lacked notice of the condition, and (3) based on plaintiff’s remark that 

she tripped over her heels, plaintiff failed to show that defendant proximately caused her injuries. 

Also, viewing the facts in a light most favorable to plaintiff, the trial court concluded that the floor 

was “wet but passable,” so the open and obvious doctrine foreclosed plaintiff’s premises liability 

claim. Finally, the trial court found unrefuted evidence that plaintiff was intoxicated on the night 

of the incident and that her impaired ability to function contributed at least 50% of the fault for her 

 

1 For reference, the legal limit to drive a vehicle in the State of Michigan is a blood alcohol content 

of 0.08. See MCL 257.625(1)(b). “The level for ‘super drunk’ is .17” under MCL 257.625(1)(c). 

People v Argo, unpublished per curiam opinion of the Court of Appeals, issued December 20, 2018 

(Docket No. 340687), p 1.
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injuries, so her claim was barred under MCL 600.2955a(1). On November 11, 2022, the trial court 

issued a final order in defendant’s favor, and plaintiff then appealed of right.

II. LEGAL ANALYSIS

On appeal, plaintiff first argues that a genuine issue of material fact remains with regard to 

whether defendant caused the condition of the wet floor, thereby imputing notice of that condition 

to defendant. We agree with plaintiff on that point, so the trial court’s summary disposition award 

under MCR 2.116(C)(10) cannot stand on that basis. Second, plaintiff challenges the trial court’s 

conclusion that the lack of any issue of material fact on causation supports the award of summary 

disposition. Again, we agree with plaintiff, so the trial court’s summary disposition award cannot 

rest on that conclusion. Third, plaintiff claims the trial court’s application of the open and obvious 

doctrine has been fully undermined by our Supreme Court’s opinion in Kandil-Elsayed, 512 Mich 

95. Again, we agree with plaintiff, so the award of summary disposition cannot stand on that basis. 

Finally, plaintiff contests the trial court’s ruling that the premises liability claim is barred by MCL 

600.2955a(1). That issue warrants close inspection to determine whether the trial court correctly 

invoked MCL 600.2955a(1) to grant defendant summary disposition under MCR 2.116(C)(10).

This Court reviews “de novo a trial court’s decision on a motion for summary disposition.” 

El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). When assessing 

a motion under MCR 2.116(C)(10), the trial court “must consider all evidence submitted by the 

parties in the light most favorable to the party opposing the motion.” Id. at 160. Only when there 

exists no genuine issue of material fact may the motion be granted. See id. Such a genuine issue 

of material fact exists “when the record leaves open an issue upon which reasonable minds might 

differ.” Id. (quotation marks and citation omitted). With these standards in mind, we must turn to 

the trial court’s decision to apply MCL 600.2955a(1) to bar plaintiff’s premises liability claim on 

the basis of plaintiff’s intoxication. Before doing so, however, we must address a threshold issue 

about the evidence that may be considered in resolving defendant’s summary disposition motion.

A. ADMISSIBLE EVIDENCE

As our Supreme Court has held, a “reviewing court should evaluate a motion for summary 

disposition under MCR 2.116(C)(10) by considering the substantively admissible evidence” in the 

record. Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999). Here, plaintiff contends 

that the trial court erred when, during its analysis of defendant’s motion under MCR 2.116(C)(10), 

it considered a “team member statement” written by defendant’s employee, Elexia Goins, who saw 

plaintiff fall. That “team member statement” includes Goins’s recitation of plaintiff’s comments 

after she fell in the restroom, including plaintiff’s statement that “[i]t wasn’t their fault. I slipped, 

I can’t walk in these shoes, I’m so embarrassed.” Goins heard and then recorded that comment in 

her own handwriting, so she could testify at trial that plaintiff made that statement. If her memory 

failed her, then her “team member statement” could be used to refresh her recollection. See MRE 

612(a). Moreover, Goins’s “team member statement” indicates that plaintiff’s comment was made 

to the EMT, who likewise could testify that plaintiff made that statement.

Plaintiff faults the trial court for deciding that plaintiff’s comments contained in the “team 

member statement” were admissible because they were not hearsay as a party admission pursuant 

to MRE 801(d)(2)(A). Under that rule, a party’s admission is, by definition, not hearsay if “[t]he 
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statement is offered against a party and is . . . the party’s own statement, in either an individual or 

a representative capacity.”

2

 Here, the comments plaintiff made in the restroom after her fall were

her own statements made in her individual capacity. Plaintiff offered no evidence in her deposition 

or elsewhere to contradict her comments recited in the “team member statement” about not being 

able to walk in heels and taking accountability for her fall. Thus, regardless of the admissibility 

of the “team member statement,” plaintiff’s comments are not hearsay if Goins or the EMT testifies 

that plaintiff made those comments, so plaintiff’s comments were properly considered by the trial 

court as party admissions under MRE 801(d)(2)(A).

In any event, the “team member statement” itself is admissible under the business-records 

exception to the hearsay rule, so defendant can introduce the “team member statement” regardless 

of whether Goins or the EMT testifies about what plaintiff said after she fell. Under MRE 803(6), 

which governs business records, the following items are excepted from the bar on the admission 

of hearsay in MRE 802:

A memorandum, report, record, or data compilation, in any form, of acts, 

transactions, occurrences, events, conditions, opinions, or diagnoses, made at or 

near the time by, or from information transmitted by, a person with knowledge, if 

kept in the course of a regularly conducted business activity, and if it was the regular 

practice of that business activity to make the memorandum, report, record, or data 

compilation, all as shown by the testimony of the custodian or other qualified 

witness, or by certification that complies with a rule promulgated by the supreme 

court or a statute permitting certification, unless the source of information or the 

method or circumstances of preparation indicate lack of trustworthiness. The term 

“business” as used in this paragraph includes business, institution, association, 

profession, occupation, and calling of every kind, whether or not conducted for 

profit.

Additionally, under MRE 803(6), “trustworthiness is presumed, subject to rebuttal, when the party 

offering the evidence establishes the requisite foundation.” Solomon v Shuell, 435 Mich 104, 125-

126; 457 NW2d 669 (1990).

Here, the “team member statement” was created on the evening of plaintiff’s fall, as shown 

by the signature and the date at the bottom of the document. The form includes an assertion stating 

that the individual completing the form has been honest and has not included any false information. 

The form itself was furnished by defendant and provides sections for employees to report the date, 

time, and location of the incident, whether there were any witnesses, and a full description of the 

incident. The contents of the “team member statement” are consistent with plaintiff’s testimony 

that she entered the restroom behind a group of people, and then she slipped and hit her head on 

the floor. Likewise, the “team member statement” is consistent with plaintiff’s testimony that she 

had difficulty walking in high heels, and it is also consistent with the EMT’s report that there was 

 

2 The Michigan Rules of Evidence were substantially amended in September 2023, and all those 

amendments went into effect on January 1, 2024. In this opinion, we shall rely on the version of 

the rules of evidence in effect at the time this matter was decided.
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a floor blower on the restroom floor. Additionally, because the trustworthiness of business records 

is presumed, plaintiff has the burden of rebutting that presumption. See Solomon, 435 Mich at 125-

126. Here, plaintiff offered no evidence to support her assertion that the “team member statement”

was created in preparation for litigation. Accordingly, we conclude the “team member statement”

filled out by Goins on the evening of the incident is a trustworthy record and is admissible evidence 

under the MRE 803(6) business-record exception to the hearsay rule. Therefore, the trial court did 

not err by relying on the “team member statement,” including plaintiff’s comments, in awarding 

summary disposition to defendant.

B. INTOXICATION AS A BAR TO RECOVERY

Plaintiff argues that her premises liability claim is not barred by the evidence of her alcohol 

use on the evening of her fall. The trial court based its award of summary disposition to defendant 

on MCL 600.2955a(1), which decrees that plaintiff cannot recover damages if she was voluntarily 

intoxicated and, as a result, she was 50% or more at fault for the accident. Specifically, the statute

says “[i]t is an absolute defense in an action . . . for injury to a person or property that the individual 

upon whose . . . injury the action is based had an impaired ability to function due to the influence 

of intoxicating liquor . . . , and as a result of that impaired ability, the individual was 50% or more 

the cause of the accident or event that resulted in the . . . injury.” MCL 600.2955a(1). Furthermore,

an “[i]mpaired ability to function due to the influence of intoxicating liquor” means that, as a result 

of drinking intoxicating liquor, “the individual’s senses are impaired to the point that the ability to 

react is diminished from what it would be had the individual not consumed liquor . . . .” See MCL 

600.2955a(2)(b). Finally, an individual is “presumed . . . to have an impaired ability to function 

due to the influence of intoxicating liquor . . . if, under 257.625a of the Michigan Compiled Laws, 

a presumption would arise that the individual’s ability to operate a vehicle was impaired.” Id. In

that respect, under MCL 257.625a(6)(a), the amount of alcohol “in a driver’s blood or urine . . . at 

the time alleged as shown by chemical analysis of the person’s blood, urine, or breath is admissible 

into evidence in any civil or criminal proceeding and is presumed to be the same as at the time the 

person operated the vehicle.” And under MCL 257.625a(7)(b), the legal limit to operate a vehicle

is 0.08 grams or more of alcohol content per 100 milliliters of blood.

Here, the toxicology report states that, on the evening of the incident, plaintiff had a blood 

alcohol content of 0.185 grams per 100 milliliters of blood, which easily exceeds the legal limit to 

drive under MCL 257.625a(7)(b). Further, because the blood alcohol content established by the 

toxicology report is presumed to be the same as at the time of the incident, plaintiff is considered 

an impaired individual under MCL 600.2955a. See MCL 257.625a(6)(a). Additionally, plaintiff 

herself testified that, because the report is “from an accredited laboratory,” she had “no reason to 

doubt the lab reports.” Plaintiff also admitted that she used painkillers along with alcohol on the

evening of her fall.

To be sure, the presumption of impairment under MCL 600.2955a(2)(b) may be rebutted,

but plaintiff’s proffered evidence does not rise to the level that rebuts the presumption in her case. 

Plaintiff’s only evidence to rebut the presumption is contained in the EMT’s report, which includes 

a box checked as “no” for evidence of plaintiff’s intoxication. But the EMT’s report also included 

a checked box for “yes” as to plaintiff having an “altered mental status.” Additionally, we agree 

with the trial court that the fact that the EMT did not immediately note plaintiff’s intoxication is 

not enough to rebut the presumption established by the credible toxicology report. Plaintiff herself 
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admitted to drinking alcohol on the evening of the incident and having a history of alcohol abuse. 

Thus, plaintiff did not present sufficient evidence to rebut the presumption of her intoxication on 

the evening of her fall.

Finally, we conclude there is no question of material fact that, as a result of her intoxication, 

plaintiff was at least 50% at fault for her fall. Plaintiff’s blood alcohol content was 0.185, which

qualified her as “super drunk” under Michigan law. See People v Argo, unpublished per curiam 

opinion of the Court of Appeals, issued December 20, 2018 (Docket No. 340687), p 1. In addition, 

plaintiff had taken painkillers and was wearing high-heeled shoes when she fell. An eyewitness, 

i.e., Goins, observed that plaintiff tripped over her own heel when she fell. After the fall, plaintiff 

remarked that she “tripped over her heels” and that her husband “told her not to wear those shoes.” 

As plaintiff put it: “It wasn’t their fault. I slipped, I can’t walk in these shoes, I’m so embarrassed.” 

In light of those candid admissions from plaintiff, coupled with her remarkably high level of blood 

alcohol content, the trial court properly ruled that reasonable minds could not differ with respect 

to whether plaintiff was voluntarily intoxicated and at least 50% at fault for her injuries. Therefore,

based on the language of MCL 600.2955a(1), defendant was entitled to summary disposition under

MCR 2.116(C)(10) on plaintiff’s premises liability claim because of her voluntary intoxication.

Affirmed.

/s/ Christopher P. Yates

/s/ Stephen L. Borrello

/s/ Kristina Robinson Garrett