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

NANCY HARRIS,

Plaintiff-Appellant,

UNPUBLISHED

October 26, 2023

v No. 359280

Oakland Circuit Court

SINGH MANAGEMENT CO, LLC, doing business 

as NORTHRIDGE APARTMENTS ROCHESTER 

HILLS, 

LC No. 2019-178786-NO

Defendant/Cross-Plaintiff-Appellee,

and

ASPEN GROVE LANDSCAPE COMPANIES, 

LLC, doing business as UNITED LAWNSCAPE, 

INC,

Defendant/Cross-Defendant-Appellee,

and

DSSC HOLDINGS, LLC, doing business as 

STONESCAPE DESIGN,

Defendant-Appellee.

Before: HOOD, P.J., and CAMERON and GARRETT, JJ.

PER CURIAM.

Nancy Harris tripped on a piece of rebar protruding from a parking block at her apartment 

complex. She alleged that snowplows operated by United Lawnscape and Stonescape Design

(collectively, “snowplow defendants”) created the hazard and that the property owner, Singh

Management (“Singh”), breached its duty by failing to repair the defect. Each defendant moved 

for summary disposition under MCR 2.116(C)(10), and the trial court granted their motions. The 
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trial court concluded that Harris failed to introduce evidence that Singh had notice of the protruding 

rebar, or that the hazard was caused by a snowplow or actions of defendants’ employees. 

Harris appeals from that decision. Because Harris presented evidence creating a genuine 

issue of material fact that Singh had constructive notice of the hazard, the trial court erred by 

granting summary disposition in Singh’s favor. The trial court did not err, however, by granting 

summary disposition for snowplow defendants because the record evidence does not establish that 

they breached their duty to exercise ordinary care while engaged in snow removal services. We 

therefore affirm in part, reverse in part, and remand for further proceedings.

I. BACKGROUND

Harris was a tenant at the Northridge Apartments complex in Rochester Hills. On the 

morning of May 15, 2019, Harris was walking her dogs. While straddling a parking block at the 

edge of the parking lot, Harris tripped and fell when her flip flop became caught on some exposed 

rebar that extended from the block. She fractured her left arm as a result of the fall. Later that 

day, Harris’s son took photographs of where she fell, including one pictured below.

Harris sued Singh in December 2019 for claims of premises liability, negligence, and 

nuisance. She alleged that Singh breached its duty to warn her of the dangerous condition of which 

it knew or should have known, and breached its statutory duty to keep all common areas fit for 

their intended use. Singh filed a notice of nonparty at fault, alleging that United Lawnscape 

performed snow removal services on the property during the 2019 season and caused the parking 

block to become dislodged.1 Harris amended her complaint, adding a negligence claim against 

United Lawnscape. United Lawnscape then filed its own notice of nonparty at fault, naming its 

 

1 Singh also filed a cross-claim against United Lawnscape. That cross-claim is not at issue in this 

appeal.
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subcontractor Stonescape Design. Once more, Harris amended her complaint to add a negligence 

claim against Stonescape Design.

2

 

Singh, United Lawnscape, and Stonescape Design each moved for summary disposition 

under MCR 2.116(C)(10), requesting that the trial court dismiss the claims in Harris’s second 

amended complaint. On the premises liability claim, Singh argued that it could not be liable for 

Harris’s injuries because it lacked notice of the exposed rebar on that particular parking block. In 

response, Harris argued that Singh had actual notice of the dangerous condition and failed to 

properly repair it. She asserted that snowplow defendants likely created the dangerous condition 

and that the hazard existed when Singh employees inspected the property to document damage 

that the snowplows created.

United Lawnscape argued in its motion for summary disposition that Harris’s negligence 

claim against it was based on speculation and conjecture because Harris had no evidence that it

dislodged the parking block at issue. United Lawnscape asserted that it subcontracted the snow 

removal services for the Northridge complex to Stonescape Design, and as such, did not plow any 

snow there during the winter of 2018-2019. Stonescape Design similarly contended in its motion 

that Harris presented no evidence that its plows damaged the particular parking block that led to 

her fall. In response, Harris argued that snowplow defendants negligently plowed the parking 

blocks out of place and dislodged the rebar, which created a hazard on the premises that did not 

previously exist. 

In a brief opinion and order, the trial court held that Harris failed to present sufficient 

evidence that defendants had actual or constructive notice of the protruding rebar. The trial court 

also concluded that Harris did not introduce any concrete evidence that the protruding rebar was 

caused by a snowplow or by some action of defendants’ employees.3 Accordingly, the court 

granted all three defendants’ motions for summary disposition. Harris moved for reconsideration, 

arguing that the trial court palpably erred by dismissing her claims against all three defendants. 

The trial court denied the motion. This appeal followed.

II. STANDARD OF REVIEW

We review de novo a trial court’s decision on a motion for summary disposition. Loweke 

v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162; 809 NW2d 553 (2011). On de 

novo review, we analyze the legal issue independently, giving “respectful consideration, but no 

 

2 Michigan’s court rules provide that “[a] party against whom a claim is asserted may give notice 

of a claim that a nonparty is wholly or partially at fault.” MCR 2.112(K)(3)(a). “A party served 

with a notice under this subrule may file an amended pleading stating a claim or claims against the 

nonparty within 91 days of service of the first notice identifying that nonparty.” MCR 2.112(K)(4).

3 The trial court’s opinion did not distinguish between each defendant, except to separately note 

that it was granting each defendants’ motion for summary disposition. 
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deference” to the trial court’s conclusion. Wasik v Auto Club Ins Assoc, 341 Mich App 691, 695; 

992 NW2d 332 (2022).

A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency 

of a claim. El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 160; 934 NW2d 665 (2019). 

The moving party has the initial burden to “submit affirmative evidence that negates an essential 

element of the nonmoving party’s claim” or “demonstrate to the court that the nonmoving party’s 

evidence is insufficient to establish an essential element of the nonmoving party’s claim.” Quinto 

v Cross & Peters Co, 451 Mich 358, 361-362; 547 NW2d 314 (1996) (quotation marks and citation 

omitted). Once met, the burden shifts to the nonmoving party to “set forth specific facts showing 

that there is a genuine issue for trial.” MCR 2.116(G)(4). See also Quinto, 451 Mich at 362. “A 

trial court may grant a motion for summary disposition under MCR 2.116(C)(10) when the 

affidavits or other documentary evidence, viewed in the light most favorable to the nonmoving 

party, show that there is no genuine issue as to any material fact and the moving party is therefore 

entitled to judgment as a matter of law.” Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 5; 890 NW2d 

344 (2016). “A genuine issue of material fact exists when the record, giving the benefit of 

reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might 

differ.” Cuddington v United Health Servs, Inc, 298 Mich App 264, 270-271; 826 NW2d 519 

(2012) (quotation marks and citation omitted). “Circumstantial evidence can be sufficient to 

establish a genuine issue of material fact, but mere conjecture or speculation is insufficient.” 

McNeill-Marks v Midmichigan Med Ctr-Gratiot, 316 Mich App 1, 16; 891 NW2d 528 (2016). 

III. CLAIMS AGAINST SINGH

The trial court granted summary disposition for Singh on all of Harris’s claims—nuisance, 

negligence, and premises liability. On appeal, Harris does not discuss the nuisance claim, so we 

decline to address it. Harris also makes no attempt to distinguish the negligence and premises 

liability claims against Singh. “When it is alleged that the plaintiff’s injuries arose from a 

dangerous condition on the land, the claim is one of premises liability rather than one of ordinary 

negligence.” Jeffrey-Moise v Williamsburg Towne Houses Coop, Inc, 336 Mich App 616, 625; 

971 NW2d 716 (2021). Therefore, we treat Harris’s claim against Singh as one of premises 

liability. See id. (“Because plaintiff’s claim is based on defendant’s duty as the possessor of the 

land on which she fell and not on defendant’s ability to conform to a particular standard of care, 

we treat plaintiff’s claim as one of premises liability.”).

On the premises liability claim, Harris argues that a question of fact exists that Singh had 

actual or constructive notice of the protruding rebar. “All negligence actions, including those 

based on premises liability, require a plaintiff to prove four essential elements: duty, breach, 

causation, and harm.” Kandil-Elsayed v F & E Oil Inc, ___ Mich ___, ___; ___ NW2d ___ (2023) 

(Docket No. 162907); slip op at 8. A premises owner owes the greatest duty of care to an invitee. 

Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 597; 614 NW2d 88 (2000). As a tenant, 

it is undisputed that Harris was an invitee on Singh’s property. See Trueblood Estate v P&G 

Apartments, LLC, 327 Mich App 275, 285; 933 NW2d 732 (2019). A premises owner possesses 

a “duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused 

by a dangerous condition of the land.” Kandil-Elsayed, ___ Mich at ___; slip op at 43 (quotation 

marks and citation omitted). This duty of care is breached when the premises owner “knows or 

should know of a dangerous condition on the premises of which the invitee is unaware and fails to 
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fix the defect, guard against the defect, or warn the invitee of the defect.” Lowrey, 500 Mich at 5 

(quotation marks and citation omitted). Thus, to establish that Singh breached its duty, Harris 

“must demonstrate that [Singh] had actual or constructive notice of the dangerous condition at 

issue.” Jeffrey-Moise, 336 Mich App at 627 (quotation marks and citation omitted). 

Constructive notice requires evidence “that the hazard was of such a character, or had 

existed for a sufficient time, that a reasonable premises possessor would have discovered it.”

Lowrey, 500 Mich at 11-12. That is, a question of fact exists for the jury when the defendant

“should have known” about the dangerous condition “because of its character or the duration of 

its presence.” Id. at 11. “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 (2007). “Constructive 

notice may arise not only from the passage of time itself, but also from the type of condition 

involved, or from a combination of the two elements.” Id. at 983, citing Kroll v Katz, 374 Mich 

364, 372; 132 NW2d 27 (1965). The defendant’s burden is not to “present evidence of a routine 

or reasonable inspection . . . to prove a premises owner’s lack of constructive notice of a dangerous 

condition on its property.” Lowrey, 500 Mich at 10. Rather, so long as the defendant shows that 

the plaintiff “failed to present sufficient evidence of notice,” the burden shifts to the plaintiff to 

establish that the defendant, “as a premises owner, possessed actual or constructive notice of the 

dangerous notice.” Id. In sum, once Singh met its burden, Harris had to establish that Singh knew 

about the exposed rebar, or should have known about it because of its character or the duration of 

its presence. Id. at 11. 

In its motion for summary disposition, Singh satisfied its initial burden of showing that 

Harris failed to present sufficient evidence that it had notice of the protruding rebar. Referencing 

deposition testimony from Harris and Bradley Adler, the property’s maintenance supervisor, Singh 

argued that its maintenance employees never received any complaints related to the parking block 

at issue or any parking blocks, nor had Harris ever encountered any issues with parking blocks 

before her fall. The burden then shifted to Harris to point to specific facts establishing that Singh 

knew about the protruding rebar, or should have known about it because of its character or the 

duration of its presence. See id.

First, Harris presented no evidence that Singh had actual notice that this particular parking 

block and rebar were dislodged. Adler testified that he did not recall receiving any complaints 

about rebar sticking out of the ground or out of the parking blocks after the 2018-2019 winter 

season. Adler inspected the property for snow removal damage at the end of March 2019 and 

marked damaged areas on a map, including displaced parking blocks, but the area where Harris

fell was not marked. Evidence that parking blocks became displaced during the snow removal 

season did not establish that any of Singh’s employees actually knew about the hazard at issue.4

 

4 Although Harris primarily argued below that Singh had actual notice of the condition, her

argument on appeal appears to focus solely on constructive notice. “[S]o long as the issue itself is 

not novel, a party is generally free to make a more sophisticated or fully developed argument on 

appeal than was made in the trial court.” Glasker-Davis v Auvenshine, 333 Mich App 222, 228; 

964 NW2d 809 (2020). 
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As for constructive notice, Harris established that Singh knew some parking blocks had 

been displaced during the snow removal season. In an answer to Harris’s interrogatory about 

Singh’s awareness of the rebar, Singh stated:

[Singh] was aware that some parking blocks had been moved off their 

original spots during the snow removal season. The parking blocks were to be 

replaced or repaired by United Lawnscape pursuant to the snow removal contract.

To provide information to United Lawnscape on necessary repairs, Adler inspected the property 

in March 2019 and documented damage on a map of the property that he believed had been caused 

by snowplows during the 2018-2019 season. The map identified several parking blocks that, 

according to Adler, were either “pushed out of place” or “flipped back on their sides.” The parking 

block and exposed rebar that caused Harris’s fall in May 2019 were not identified on the damage 

report. Adler sent the map over e-mail to Singh’s regional facilities director, Chris Pavlinic, with 

the subject line “Snow contractor damages” and a message directed Pavlinic to “the attached map 

of damages caused by United.” This evidence, viewed in the light most favorable to Harris, creates

a material factual dispute about whether a reasonable premises possessor should have discovered 

the protruding rebar “because of its character or the duration of its presence.” Lowrey, 500 Mich 

at 11.

5

 

Beginning with the character of the condition, the hazard at issue was of a similar character 

to conditions that Adler had identified on his inspection of the property in March 2020. As for the 

duration of its presence, Harris introduced evidence that other parking blocks on the Northridge 

property had been moved sometime during the 2018-2019 winter season, and that Adler believed

that snowplows had pushed these parking blocks out of place. Viewed in the light most favorable 

to Harris, a jury could reasonably infer from this evidence that a snowplow also damaged and 

dislodged the rebar on the parking block on which she eventually tripped and fell. A jury could 

also infer that Adler failed to notice the protruding rebar during his March 2019 inspection, and 

that the rebar went undetected for nearly two more months before her fall. Indeed, the longer a 

defect is present, the stronger the evidence of constructive notice. See Clark v Kmart Corp, 465 

Mich 416, 420; 634 NW2d 347 (2001). A reasonable factfinder could thus conclude that the hazard 

existed for a “sufficient length of time” such that Singh should have discovered it. See Banks, 477 

Mich at 984.

6

 

5 On appeal, Harris also highlights deposition testimony from Perrean Dexter, the Northridge 

property site manager, and Michelle Pompetzki, a regional property manager for Singh, as creating 

a question of fact on constructive notice. Because Harris did not present this evidence in response 

to Singh’s motion for summary disposition, we do not consider it in our analysis of constructive 

notice. See Karaus v Bank of New York Mellon, 300 Mich App 9, 15 n 2; 831 NW2d 897 (2012) 

(“[T]his Court’s review of a trial court’s decision on a motion for summary disposition is limited 

to the evidence that was presented to the trial court at the time the motion was decided.”). 

6 Harris also presented evidence of an invoice that purportedly showed that repairs to the parking 

blocks were not made until May 22, 2019, three days after her fall. This invoice does not create a 

genuine issue of material fact because, even viewed in the light most favorable to Harris, the 
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Singh argues that even if a question of fact exists on constructive notice, it is still entitled 

to summary disposition because the protruding rebar was an open and obvious condition. The trial 

court did not rule on this issue, but Singh raised it below. At the time Singh argued that the rebar

was open and obvious, Michigan law provided that a “premises possessor is not required to protect 

an invitee from open and obvious dangers, but, if special aspects of a condition make even an open 

and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake 

reasonable precautions to protect invitees from that risk.” Lugo v Ameritech Corp, Inc, 464 Mich 

512, 517; 629 NW2d 384 (2001). But our Supreme Court recently overruled Lugo, rejecting its 

placement of the open-and-obvious danger doctrine as part of a landowner’s duty and scrapping 

the special-aspects doctrine. Kandil-Elsayed, ___ Mich at ___; slip op at 2.7 Kandil-Elsayed

instead held that “the open and obvious nature of a condition is relevant to breach and the parties’

comparative fault” and “when a land possessor should anticipate the harm that results from an 

open and obvious condition, despite its obviousness, the possessor is not relieved of the duty of 

reasonable care.” Id. Because the state of the law on open and obvious dangers has so recently 

changed, and the parties have not briefed the issue under the standards announced in KandilElsayed, we decline to rule on this issue in the first instance and leave it to the parties to address 

on remand.

8

IV. CLAIMS AGAINST UNITED LAWNSCAPE AND STONESCAPE DESIGN

Harris also argues that the trial court erred by ruling that she failed to present evidence 

establishing a question of fact whether the hazard was caused by a snowplow. 

Harris brought claims of ordinary negligence against snowplow defendants. “To establish 

a prima facie case of negligence, a plaintiff must prove the following elements: (1) the defendant 

owed the plaintiff a legal duty, (2) the defendant breached the legal duty, (3) the plaintiff suffered 

 

invoice contains no indication that it related to work conducted at the Northridge Apartments 

complex. In fact, the invoice contains a written notation for “Stonegate,” which Curtis Taylor, the 

contractor paid on the invoice, testified was a different residential community where he conducted 

repair work. 

7 Kandil-Elsayed was decided as a companion case with Pinsky v Kroger Co of Mich, ___ Mich 

___; ___ NW2d ___ (2023) (Docket No. 163430).

8

In her reply brief, Harris also brings up Singh’s statutory duty to keep the premises fit for their 

intended use under MCL 554.139(1)(a). An issue raised in a reply brief is not properly presented 

for review because reply briefs must be limited to rebuttal of the arguments in the appellee’s brief. 

Bronson Methodist Hosp v Mich Assigned Claims Facility, 298 Mich App 192, 199; 826 NW2d 

197 (2012); MCR 7.212(G). Even if we considered the statutory duty claim, we would conclude 

that it lacked merit. For a parking lot, a premises owner’s obligation under MCL 554.139(1)(a) is

to ensure that vehicles can access parking spaces and that tenants have reasonable access to their 

parked vehicles. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 429; 751 NW2d 8 (2008). 

Because the protruding rebar did not limit vehicle access to parking spots or tenants’ reasonable 

access to their vehicles, Singh did not breach its statutory duty. See id. at 430 (holding that tenants 

were able to use parking lot for its intended purpose despite the accumulation of one to two inches 

of snow).
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damages, and (4) the defendant’s breach was a proximate cause of the plaintiff’s damages.” 

Loweke, 489 Mich at 162. To determine whether a legal duty arises “when two parties enter into 

a contract and a noncontracting third party, i.e., one who is a stranger to the contract, is injured,”

the operative question is “whether the defendant owed a duty to the plaintiff that is separate and 

distinct from the defendant’s contractual obligations.” Id. at 162, 166 (quotation marks and 

citation omitted). For instance, a contracting defendant retains a separate and distinct “commonlaw duty to use ordinary care in order to avoid physical harm to foreseeable persons and property 

in the execution of its undertakings.” Id. at 172.

Harris’s negligence claims against snowplow defendants alleged that they owed her a duty 

“to perform the snow removal services in a manner that did not create a hazardous condition” and 

“to provide snow removal services in a manner that did not create a new hazard on the property, 

that would include damaging the parking blocks causing the rebar to protrude.” Harris was not a 

party to the contract between Singh and United Lawnscape, and the subcontract between 

snowplow defendants. Still, while snowplow defendants did not owe any contractual duty to 

Harris, they owed her a separate and distinct “common-law duty to use ordinary care in order to 

avoid physical harm to foreseeable persons and property in the execution of [snow removal 

services].” Loweke, 489 Mich at 172. Further, Harris’s argument that their snowplows caused the 

damage to the parking blocks that resulted in her fall is, in essence, an argument that they breached 

this common-law duty. Assuming that Harris presented sufficient circumstantial evidence that 

snowplow defendants created the protruding rebar hazard by dislodging a parking block with one 

of their snowplows,9 Harris has not explained how either company breached the duty of ordinary 

care that it owed her. And “where the evidence presented to a court concerning breach generates 

no questions of fact, the issue can be decided by the judge as a matter of law.” Kandil-Elsayed, 

___ Mich at ___; slip op at 10 n 2, citing MCR 2.116(C)(10).

The record evidence supports that dislodged or damaged parking blocks occurred in the 

ordinary course of snow plowing across the winter season. For instance, Dexter testified that in 

her 13 years of experience at Northridge, snow removal contractors damaged parking blocks “quite 

a bit.” She also agreed that every winter season since 2009 or so, she had seen rebar and parking 

blocks displaced. Similarly, Pompetzki agreed that parking blocks were dislodged during removal 

season, rebar became deformed or displaced as a result of snow removal services, and repair 

requests to fix parking blocks were common.10 Thus, it made sense that Adler conducted an endof-season inspection of the Northridge property to identify any damage on the property that he 

believed was caused by snowplows or the snow removal contractors more generally. But besides 

establishing that a snowplow may have caused the protruding rebar to form, Harris presented no 

 

9 We note that it is unclear from Harris’s argument how or why snowplow defendants could both

be liable on a negligence theory. Harris presented no evidence suggesting that plows from both 

companies could be responsible for creating the tripping hazard. Accepting Harris’s position, it 

was either United Lawnscape’s plows or Stonescape Design’s plows that damaged the parking 

block at issue. In any event, we need not resolve that conundrum because Harris failed to establish 

a genuine issue of material fact that either company breached the duty it owed her.

10 Harris referenced testimony from Dexter and Pompetzki in her response to United Lawnscape’s 

motion for summary disposition.
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evidence of the specific nature of snowplow defendants’ conduct that created the hazard. For 

instance, there was no evidence that a snowplow was being driven unreasonably fast or without 

reasonable caution when the parking block at issue was dislodged. Nor was there any evidence 

about the visibility of the parking block when it was moved—i.e., was it covered by snow? Harris 

also presented no expert or documentary evidence suggesting that the occasional dislodging of 

parking blocks was indicative of negligently-performed removalservices. Without other evidence, 

we are unpersuaded that the mere result of a dislodged parking block—and thus the protruding 

piece of rebar—establishes that snowplow defendants negligently plowed the parking lot when the 

incident occurred. Viewed in the light most favorable to Harris, the record evidence does not 

generate any question of fact whether snowplow defendants breached their duty to exercise 

ordinary care by dislodging the single parking block involved in Harris’s fall sometime during the 

2018-2019 winter season. Although the trial court held that Harris presented no evidence that 

snowplows caused the hazard at issue, “we will not reverse a trial court’s decision when it reaches 

the right result, even if it was for the wrong reason.” Bailey v Antrim Co, 341 Mich App 411, 420; 

990 NW2d 372 (2022). We therefore conclude that the trial court did not err by granting summary 

disposition in favor of snowplow defendants.

11

We affirm in part, reverse in part, and remand for further proceedings that are consistent 

with this opinion. 

/s/ Noah P. Hood

/s/ Kristina Robinson Garrett

 

11 Harris also argues that the trial court erred by denying her motion for reconsideration. Because 

we have resolved the claim against Singh in Harris’s favor, it is unnecessary to address this issue 

as to that defendant. And because the trial court did not err by granting snowplow defendants’ 

motions for summary disposition, the trial court necessarily did not err by denying Harris’s motion 

for reconsideration of those decisions.