Elizabeth Beitel v. David Alan Beitel
333924
| Mich. Ct. App. | Nov 21, 2017Background
- Elizabeth fell on ice in the right/rear tire ruts of her ex-husband David’s three-car driveway after returning from an evening concert; she broke bones in her right leg.
- Earlier that day David shoveled much of the driveway but left the bottom-right section (near the road) with compressed-snow ruts that had formed ice.
- David admitted at deposition he knew about that ice, planned to remove it later with a spade shovel, and did not warn Elizabeth.
- At the time of the fall the area behind David’s truck was dark; Elizabeth testified she did not see ice before falling.
- David moved for summary disposition only on the ground that he lacked actual or constructive notice of the ice; he did not argue the condition was open and obvious in his motion.
- The trial court granted summary disposition for David, ruling the ice was open and obvious (i.e., Elizabeth should have seen it), and held David owed no duty to the licensee to make the premises safe; the Court of Appeals reversed in part, vacated in part, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether David had notice of the icy ruts | David admitted he knew of the ice and did not warn Elizabeth; that admission establishes notice and liability | David’s (written) motion asserted no actual or constructive notice of the ice | Court of Appeals: David’s filings and deposition established his knowledge; trial court erred by not granting partial summary disposition for plaintiff on notice |
| Whether the ice was an open and obvious danger | Elizabeth: area was dark and condition was not visible to her behind the truck; she had no reason to expect ice | Trial court/defense at hearing: plaintiff should have seen the ice when she first parked; alternative routes existed | Court of Appeals: open-and-obvious was not raised in defendant’s motion; trial court erred to decide that unbriefed issue without giving plaintiff notice — vacated and remanded for further proceedings |
| Whether the trial court could decide an unraised theory at the summary-disposition hearing | Plaintiff argued she lacked notice the court would decide open-and-obvious and thus was denied opportunity to present evidence | Defense implicitly relied on avoidance/alternative-route arguments at hearing but did not brief open-and-obvious | Court of Appeals: procedural rules and due process (MCR 2.116(G)(4) and precedent) require the moving party to identify issues and give opposing party opportunity to respond; reversal/vacatur warranted |
| Burden-shifting and evidentiary support for a (C)(10) motion | Plaintiff argued burden had shifted because defendant failed to support his notice denial and his evidence showed notice | Defendant presented no supporting affidavits/deposition citations in his brief and abandoned the notice theory at argument | Court of Appeals: defendant failed to comply with MCR 2.116(G)(3)-(4); only after proper evidentiary support could burden shift — plaintiff entitled to partial summary disposition on notice issue |
Key Cases Cited
- Beaudrie v Henderson, 465 Mich 124 (standard of review for (C)(10) and viewing evidence for nonmoving party)
- Allison v AEW Capital Mgt, LLP, 481 Mich 419 (summary disposition (C)(10) standard)
- Stitt v Holland Abundant Life Fellowship, 462 Mich 591 (duty owed to licensees: warn only of known hidden dangers)
- Pippin v Atallah, 245 Mich App 136 (no duty to licensee for open and obvious conditions)
- Price v Kroger Co of Mich, 284 Mich App 496 (test for open and obvious danger)
- Barnard Mfg Co v Gates Performance Eng’g, 285 Mich App 362 (burden shifting requires movant’s compliance with evidentiary support rules)
- Al-Maliki v LaGrant, 286 Mich App 483 (court may not decide unbriefed issues at summary disposition without giving parties notice and opportunity to respond)