LOWREY v LMPS & LMPJ, INC

Docket No

. 153025. Decided December 13 , 2016.

Krystal Lowrey filed a complaint in the Oakland Circuit Court against LMPS & LMPJ, Inc

. , after she slipped and fell while descending a stairway at Woody’s D iner and sustained a broken tibia and fibula. She asserted that the stairs were wet and slippery at the time of her fall, a condition Lowrey insist ed Woody’s Diner should have known about and should have remedied or guarded against

, or about which the diner should have warned its patrons. Lowrey subsequently amen ded her complaint to name KSK Hospitality Group, Inc., doing business as Woody’s Diner, as the defendant. Woody’s Diner moved for summary disposition under MCR 2.116(C)(10) . The court, Rudy J. Nichols, J., granted summary disposition in favor of Woody’s Diner

. Lowrey appealed in the Court of Appeals. The Court of Appeals, R ONAYNE K RAUSE , P.J. , and M ARKEY and M. J. K ELLY , JJ ., reversed the trial court, explaining that Woody’s Diner was obligated to establish that it lacked notice of the hazard, which required it to present evidence showing what a reasonable inspection of the premises would have entailed under the circumstances the night Lowrey was injured. 313 Mich App 500 (2016). Woody’s Diner applied for leave to appeal in the Supreme Court.

In a unanimous opinion per curiam

, the Supreme Court , in lieu of granting leave to appeal and without oral argument, held :

A premises owner moving for summary disposition of a premises liability claim against it under MCR 2.116(C)(10) has the burden of demonstrating that the claimant’s evidence is insufficient to establish an essential element of the claim or presenting affirmative evidence to negat e an element of the c laim. The premise s owner, however, is not required to proffer evidence negating an element of the claim if the claimant’s evidence is insufficient to establish an essential element of the claim

. In addition, a premises owner is not liable for injuries arising from a hazard unless it had actual or constructive notice of the hazard ; the premises owner is not required to show that a routine or reasonable inspection of the premises would have failed to discover the hazard because it is n ot required to prove that it lacked actual or constructive notice

.

1. A party defending against a motion for summary disposition of its negligence claim in a premises liability case must raise a genuine issue of fact regarding each element of its claim including whether the premises owner had actual or constructive notice of the condition that caused the party’s injury. The premises owner is not required to present evidence to negate one Michigan Supreme Court Lansing, Michigan 

# Syllabus Chief Justice: Robert P. Young, Jr. Justices: Stephen J. Markman Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader

. Reporter of Decisions: Kathryn L. Loomisof the elements of plaintiff’s claim and is therefore not required to prove that it did not have actual or constructive notice of the hazard. T o place that requirement on the premises owner would improperly shift the burden of proof fr om the plaintiff to the defendant . In this case, Woody’s Diner only needed to show th at Lowrey’s evidence was insufficient to create a genuine issue of material fact about whether Woody’s Diner had actual or constructive notice of the hazard because Lowrey was required to produce enough evidence to create a genuine issue of material fact o n each element of her premises liability claim to withstand Woody’s Diner’s motion for summary disposition.

2. A premises owner moving for summary disposition of a negligence claim against it is
not required to present evidence of what would constitut e a reasonable inspection of the premises under the circumstances and whether such inspection would apprise the premises owner of the hazard that caused its patron’s injury. Never has a premises owner, the moving party in the motion for summary disposition in this case, been required to prove its lack of notice by describing what kind of inspection it sh ould have conducted and that , even if it had engaged in such an inspection, it w ould have remain ed unaware of the hazard. Ra ther, Lowrey was required
to present evidence that Woody’s Diner had actual or constructive notice of the wet steps. Lowrey failed to present any evidence that Woody’s Diner knew or shoul d have known about the wet steps, and the Court of Appeals improperl y reversed the trial court’s grant of summary disposition in favor of Woody’s Diner

. Court of Appeals judgment regarding notice r eversed , remainder of the Court of Appeals judgment vacated

, a n d trial court order granting summary disposition in favor of Woody’s Diner reinstated

.

© 2016 State of MichiganFILED December 13, 2016

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

SUPREME COURT

KRYSTAL LOWREY
,

Plaintiff

- Appell ee ,

v No. 153025

LMPS & LMPJ, INC

. ,

Defendant

, and

KSK HOSPITALITY GROUP, INC., doing business as WOODY ’ S DINER
,

Defendant

- Appellant.

BEFORE THE ENTIRE BENCH

P ER C U RI A M

. This case concerns the standard for granting a motion for summary disposition and

the elements of a premises liability claim

. On a snowy night , plaintiff Krystal Lowre y

went with friends to Woody’s Diner (defendant) for drinks to celebrate St. Patrick ’ s D ay

.
While exiting the diner, she fell on the stairs and injured herself. She brought this Michigan Supreme Court Lansing, Michigan 

# OPINION Chief Justice: Robert P. Young, Jr. Justices: Stephen J. Markman Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen2 premises liability action

, and the trial court granted summary disposition in defendant ’ s

favor. The Court of Appeals subsequently reversed, concluding that def endant had failed

to establish that it lacked notice of the hazardous condition alleged in the complaint,

reasoning that defendant had not presented evidence of what a reasonable inspection

would have entailed under the circumstances. We conclude that in order to obtain

summary disposition under MCR 2.116(C)(10), defendant was not required to present

proof that it lacked notice of the hazardous condition, but needed only to show that

plaintiff presented insufficient proof to establish t he notice element of her claim. We

conclude that defendant met its burden because plaintiff failed to establish a question of

fact as to whether defendant had notice of the hazardous condition

. Accordingly, we

reverse the judgment of the Court of Appeals regarding defendant ’ s notice

, reinstate the

trial court ’ s order granting summary disposition in favor of defendant on that issue, and

vacate the remainder of the Court of Appeals ’ opinion

.

I. FACTS AND HISTORY

Plaintiff Krystal Lowre y and her friends went to Woody ’ s D iner for drinks on
March 17, 2013

, in celebration of St. Patrick ’ s D ay

. They arrived at approximately 12:30

a.m. and went to the dance area located on the second floor. Plaintiff and her friends

used the back stairs to tr avel from the dance area to the smoking patio several times

without incident while they were at the diner. Plaintiff consumed four shots of alcohol

before she and her friends left around 1:45 a

. m. The group once again used the back

stairs, this time for the purpose of exiting the diner. Plaintiff was about five stairs from

the bottom when she fell forward on the stairs and landed approximately two or three

steps below

. She asserted that she had slipped on a wet step. Plaintiff acknowledged that3 she had not see n any water on the stairs at any time that night, but assume d that the stairs

were wet because her b ackside was wet after she landed from her fall and a person “ can ’ t

just slip on nothing. ” Plaintiff did not know which of her feet had slipped on t he stairs,

but thought it might have been both feet because she had lost her balance. Plaintiff and

her friends testified that many people were using the same stairs that night and that

plaintiff and her friends had not hear d of anyone else slipping on th e stai rs or
complaining that the stairs were slippery

. The manager of the diner testified that s he had

not receive d a report of anyone else falling on the stairs that night.

After being diagnosed with and treated for a broke n tibia and fibula , p laintiff sued

defendant , alleging negligence. The trial court granted defendant ’ s motion for summary

disposition under MCR 2.116(C)(10), holding that plaintiff failed to raise a genuine issue

of material fact regarding whether defendant had actual o r constructive knowledge of the

condition of the stairs ; alternatively, the court found the hazardous condition to be open

and obvious.

T he Court of Appeals reversed and remanded to the trial court , stating that

“ [w] hen the defendant is convinced that the plaintiff wil l be unable to support an element

of the claim at trial, but is unwilling or unable to marshal his or her own proofs to support

a motion under MCR 2.116(C)(10), the defendant ’ s recourse is to wait for trial and move

for a directed verdict after the close of the plaintiff ’ s proofs. ” Lowrey v LMPS & LMPJ,

Inc
, 313 Mich App 500, 510; 885 NW2d 638 (2015). T he Court of Appeals also held that

defendant had failed to present evidence that it lacked no tice of the hazardous condition

because it had not present ed evidence of what a reasonable inspection would have

entailed under the circumstances

. Finally, the C ourt of Appeals ruled that defendant4 could not invoke the “ open and obvious danger ” doctrine as a defense because it had

failed to present evidence that a reasonable person would have discovered the hazard.

Defendant sought leave to appeal in this Court

, challenging the Court of Appeals ’

analysis of the standard for summary disposition, its analysis of the elements for notice of

an alleged dangerous condition, and its application of the open and obvious danger

doctrine.

II. STANDARD OF REV IEW

A trial court may grant a motion for summary disposition under MCR

2.116(C)(10) when the affidavits or other documentary eviden ce , 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. Quinto v

Cross & Peters Co , 451 Mich 358, 362 ; 547 NW2d 3 14 (1996 ). This Court reviews de

novo the grant or denial of a motion for summary disposition to determine if the moving

party is entitled to judgment as a matter of law. Maiden v Rozwood , 461 Mich 109, 118 ;

597 NW2d 817 (1999 ).

III. ANALYSIS

There are two issues in the Court of Appeals ’ opinion that require our attention.

The first pertains to the standard for granting a motion for summary disposition under

MCR 2

. 116 (C)(10)

. MCR 2.116 provides in pertinent part:

(B) Motion.

(1) A party may move for di smissal of or judgment on all or part of a claim in accordance with this rule. A party against whom a defense is asserted may move under this rule for summary disposition of the defense. A request for dismissal without prejudice under MCL 600.2912c must be made by motion under MCR 2.116 and MCR 2.119.5 * * *

(C) Grounds. The motion may be based on one or more of these grounds, and must specify the grounds on which it is based:

* * *

(10) Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.

* * *

(G) Affidavits; Hearing.

* * *

(4) A motion under subrule (C)(10) must specifically identify the issues as to which the moving party believes there is no genuine issue as to any material fact. When a motion under subrule (C)(10) is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, judgment, if appropriate, shall be entered against him or her.

The moving party may thus satisfy its burden under MCR 2.116(C)(10) by “ submi t[ting ]

affirmative evidence that negates an essential element of the nonmoving party ’ s claim, ”

or by “ demonstrat[ing ] to the court that the nonmoving party ’ s evidence is insufficient to

establish an essen tial element of the nonmoving party ’ s claim

. ” Quinto
, 451 Mich at 362

(quotation marks and citation omitted)

. This Court has further described the

nonmovant ’ s burden to avoid summary disposition after the movant has satisfied its

burden through one of the se two courses of actions :
Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the nonmoving party may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists. McCart v J Walter Thompson , 437 Mich 109, 115 ; 469 NW2d 284 (1991). If the6 opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted. McCormic v A uto Club Ins Ass ’ n , 202 Mich App 233, 237 ; 507 NW2d 741 (1993). [ Quinto
, 451 Mich at 362

- 3 63.]

This Court reaffirmed Quinto and the proper application of MCR 2.116(C)(10) in

Maiden , 461 Mich at 121 , stating that “ [a] litigant ’ s mere pledge to establish an issue of

fact at trial cannot survive summary disposition under MCR 2.116(C)(10). The court rule

plainly requires the adverse party to set forth specific facts at the time of the motion

showing a genuine issue for trial. ”

In this case , d efendant moved for summary disposition under MCR 2.116(C)(10)

.
Plaint iff was an invitee of defendant and h er negligence claim is based on premi ses
liability. In order to successfully advance such a claim, an invitee must show that the

premises owner breached its duty to the invitee and that the breach constituted the

proximate cause of damages suffered by the invitee. Riddle v McLouth Steel Prod Corp

, 440 Mich 85, 96 ; 485 NW2d 676 (1992). A premi ses owner breaches its duty of care

when it “ knows or should know of a dangerous condition on the premises of which the

invitee is unaware and fails to fix the defect, guard against the defect, or warn the invitee

of the defect. ” Hoffner v Lanctoe , 492 Mi ch 450, 460 ; 821 NW2d 88 (2012).

The Court of Appeal s recognized that “ plaintiff must be able to prove that the

premises possessor had actual or constructive notice of the dangerous condition at

issue [

. ] ” Lowrey , 313 Mich App at 510

. It also understood that defendant would be

entitled to summary disposition if there was no question of fact that defendant lacked

such notice. Id

. Yet, the Court of Appeals determined that “ the trial court erred to the

extent that it required [plaintiff] t o present evidence to establish a question of fact as to7 whether [defendant] had actual notice [

. ] ” Id

. at 512. The Court of Appeals erroneously

shifted the burden to defendant by rul ing that because defendant “ failed to present

evidence that, if left unrebutted, would establish that it did not have actual or constructive

notice of the condition; [plaintiff]

. . . had no obligation to come forward with evidence

establishing a question of fact as to that element

. . . . ” Id. at 504

. D efendant is not

required to go beyond showing the insufficiency of plaintiff ’ s evidence

. The Court of

Appeals erred when it imposed an additional requirement on defendant : to proffer

evidence to negate one of the elements of plaintiff ’ s claim. As discussed, t he rule is well

established that a moving party may be entitled to summary disposition as a result of the

non moving party ’ s failure to pro duce evidence sufficient to demonstrate an essential

elemen t of its claim

. See , e.g., Bernardoni v Saginaw
, 499 Mich 470 ; 886 NW2d 109

(2016) ( granting summary disposition to the defendant because the defendant

demonstrated that the plaintiff ’ s evidence was insuffi cien t to establish an essential

element of her claim

— the defendant ’ s knowledge of the alleged defect)

. The Court of

Appeals erred t o the extent that its opinion is inconsistent with this standard for deciding

summary disposition motions under MCR 2

. 116(C) (10).

The second issue we must clarify pertains to the notice element of a premises

liability claim

. While the Court of Appeals correctly noted that “ [t]o establish a claim of

premises liability, the plaintiff must be able to prove that the premises possessor h ad

actual or constructive notice of the dangerous condition at issue

, ” Lowrey , 313 Mich App

at 510 , the Court of Appeals both improperly shifted the burden to defendant to prove its

lack of notice and imposed a new element necessary to prove such lack of n otice:8 [A] premises possessor who moves for summary disposition on the ground that he or she did not have constructive notice of the dangerous condition will normally have to present evidence to establish what constitutes a reasonable inspection under the circumstan ces to permit an inference that, given the nature of the hazard, he or she would not have discovered the hazard even if he or she had performed that inspection. [ Lowrey , 313 Mich App at 515

. ] [ 1 ]

However, this Court has never required a defendant to present evidence of a routine or

reasonable inspection under the instant circumstances to prove a premises owner’s lack of

constructive notice of a dangerous condition on its property. The Court of Appeals erred

when it imposed this new condition on premi ses owners seeking summary disposition.

Rather, as earlier discussed , defendant could establish its entitlement to summary

disposition by demonstrating that plaintiff failed to present sufficient evidence of notice.

To prevail on her claim, plaintiff had to establish that defendant

, as a premises owner

, possessed actual or constructive notice of the dangerous condition. We have described

liability based on a premise s owner ’ s notice of a dangerous condition as follows :
The proprietor is liable for injury resulting from an unsafe condition caused by the active negligence of hi mself and his employees; and he is liable when the unsafe condition

, otherwise caused

, is known to the storekeeper or is of such a character or has existed a sufficient length of time that he should ha ve knowledge of it

. [ Carpenter v Herpolsheimer ’ s Co , 278 Mich 697, 698 ; 271 NW 575 (1937) (citation omitted) .] [ 2 ]

1 To the extent that Grandberry

- Lovette v Garascia , 303 Mich App 566 ; 844 NW2d 178 (2014)

, supports t he Court of Appeal s ’ position regarding a defendant’s burden of proof on a motion for summary disposition or the elements necessary to prove constructive
not ice , it was incorrect

. See Lowrey , 313 Mich App at 512

- 520.

2 We have described the duty a landowner owes to an invitee as “[an] obligation to also make the premises safe, which requires the landowner to inspect the premises and depending upon the circu mstances, make any necessary repairs or warn of any discovered hazards.” Stitt v Holland Abundant Life Fellowship , 462 Mich 591, 597 ; 614 NW2d 889 Therefore, in order to show notice, plaintiff had to demonstrate that defendant knew

about the alleged water on the stairs or should have known of it because of its character

or the duration of its presence. See
, e.g. , Serinto v Borman Food Stores , 380 Mich 637,

640

- 6 41 ; 158 NW2d 485 (1968) ( stating that p remises liability exists when the hazard is

“ known to the storekeeper or is of such a character or has existed a sufficient length of

time that he should have had knowledge of it ” ) (emphasis omitted)

.

We hold that plaintiff failed to proffer evidence sufficient to demonstrate a

question of fact regarding defendant ’ s actua l or constructive notice of the hazardous

condition

, and defendant was entitled to summary disposition on this basis. As it relates

to actual notice, p laintiff herself did not see any water on the stairs at any time that night,

and defendant’s manager testified that no customers or employees had reported water on

the stairs or any accidents on the stairs that night. Nor did p laintiff or her friends hear

any other customers expressing concerns about water on the stairs. Plaintiff alleged that

an employee of the bar was standing at the bottom of the stairs and witnessed her fall, but

neither plaintiff nor any of her friends were able to identify the employee. Even

assuming an employee was present

, his presence would not by itself have indicate d that

he knew of t he water on the step before plaintiff ’ s fall. Thus

, plaintiff presented no

evidence that defendant had actual knowledge of the hazardous condition.

(2000). The plaintiff, however, bears the burden of proof of establishing that the defendant breached this d uty of care , i.e.

, the defendant knew or should have known “ of a dangerous condition on the premises of which the invitee [was] unaware and fail [ed] to fix the defect, guard against the defect, or warn the invitee of the defect.” Hoffner v Lanctoe , 492 Mich 450, 460; 821 NW2d 88 (2012).10 Plaintiff likewise failed to present any evidence of constructive notice, i.e., that the

hazard was of such a character

, or had existed for a sufficient time

, that a reasonable

premises possessor would have discovered it. Plaintiff and her friends traversed the stairs

several times during the evening without incident

, evidence which would tend to support

the conclusion that the hazardous condition that caused plaintiff’s fall had not been

present on the steps for the entire ty of the evening. Nor did p laintiff present any evidence

as to when the condition arose. Goldsm ith v Cody , 351 Mich 380, 389; 88 NW2d 268

(1958) (granting summary disposition in favor of the defendant because “ [ t ] he missing

link in [the] plaintiff ’ s case [was] any proof as to when the [hazardous condition arose] ” ).

Finally, plaintiff presented no e vidence that the hazardous condition in this case was of

such a character that the defendant should have had notice of it . In fact, no evidence

concerning the character of the condition was presented; plaintiff’s assumption that the

stairs must have been wet because her pants were wet after her fall does not support any

particular conclusion concerning the character of the condition. The Court of Appeals

erred by reversing the trial court ’ s grant of summary disposition to defendant because

plaintiff failed to support an essential element of her claim

— defendant ’ s notice of the

hazardous condition. 3

In summary, the Court of Appeals (1) improperly altered the burden of proof a

moving party must meet to obtain summary disposition under MCR 2.116(C)(10) in a

neg ligence action based on premises liability ; (2) improperly required defendant to

3 Given that defendant is entitled to summary disposition because plaintiff fail ed to establish an essential element of her claim, we need not address the Court of Appeal s ’ open and obvious danger determination . R ather

, we vacate that portion of its opinion

.11 provide “ proof of reasonable inspection ” to show that it lacked constructive notice of the

alleged harm; and (3) erred by reversing the trial court ’ s grant of summary disposit ion to

defendant . Accordingly, we reverse the judgment of the Court of Appea ls regarding

defendant ’ s notice

, reinstate the trial court ’ s order granting summary disposition in favor

of defendant on that issue, and vacate the remainder of the C ourt of Appea ls ’ opinion.

Robert P. Young, Jr. Stephen J. Markman Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen