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A Better Partnership
December 14, 2015

COA - Slip and fall plaintiff did not have burden to present evidence establishing a question of fact in defendant’s motion for summary disposition

A defendant does not meet “his or her burden of production . . . by simply stating a belief that the plaintiff will be unable to present evidence to establish an element at trial,” according to the Court of Appeals decision in Lowrey v. LMPS & LMPJ, Inc. and KSK Hospitality Group, Inc., d/b/a Woody’s Diner, No. 323049.  The COA held that the trial court erred when it granted KSK Hospitality Group, Inc.’s (“KSK”) motion for summary disposition when the trial court concluded that Lowrey failed to present evidence that KSK had actual or constructive notice of the slippery stairs on which Lowrey was injured.  Because KSK had failed to present evidence “that, if let unrebutted, would establish that it did not have actual or constructive notice of the condition,” KSK’s motion should have been denied.
On a snowy night in early 2013, Lowrey and her friends went to KSK’s bar.  Upon arrival, Lowrey went upstairs to the bar’s dance area and during the course of the evening took multiple trips up and down the stairs for smoke breaks.  Lowrey’s friend testified that, due to the snowy conditions and people coming in and out of the bar, the stairs were wet, but it was dark in the bar, so it was difficult to see if the steps at the bottom of the stairs were wet and slippery.  On her way to leave, Lowrey had descended about three-quarters of the way down, slipped on the stairs, fell and broke her leg.  Lowrey sued KSK for damages arising out of her fall at the bar.  KSK moved for summary disposition under MCR 2.116(C)(10).  The trial court granted KSK’s motion and determined that Lowrey had not presented evidence that KSK had actual or constructive notice of the slippery stairs.  It also determined that KSK was entitled to summary disposition based on other arguments in KSK’s motion.  Lowrey appealed.
Under MCR 2.116(C)(10), the moving party must present evidence that, if left unrebutted, would establish its right to summary disposition.  If that burden is met, the trial court has the authority to dismiss the claim of the non-moving party.  In this case, as to actual notice of the slippery stairs, the Court of Appeals found that KSK did not present evidence that would allow a reasonable jury to conclude that “KSK did not actually know that the steps were wet and slippery.”  Therefore, the trial court erred and KSK was not entitled to summary disposition on this issue, due to a lack of evidentiary support.  As to the question of constructive notice, the Court again found that KSK did not present evidence sufficient to meet its burden as the moving party. 
The Court then addressed KSK’s alternative arguments for summary disposition.  KSK argued that Lowrey could not establish the causation element of her claim, nor that the stairs were a dangerous condition.  In addition, KSK argued that it had no duty to warn because the slippery stairs were open and obvious.  The Court of Appeals held that, based on the evidence presented, there was a question of fact on the issue of causation, as well as to whether the stairs were a dangerous condition.  Further, under the open and obvious danger doctrine, the Court concluded that KSK failed to present evidence “that an average patron ‘with ordinary intelligence acting under the same conditions would have been able to discover the danger and risk presented by the condition upon casual inspection.’ ”  Accordingly, the Court reversed the trial court’s grant of KSK’s motion for summary disposition and remanded the case for further proceedings.  

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