Lead Opinion
In this suit to recover damages resulting from a fall, plaintiff, Charlotte Grandberry-Lovette, appeals by right the trial court’s order granting a motion for summary disposition under MCR 2.116(C)(10) by defendant Mark Garascia. We conclude that the trial court erred when it granted Garascia’s motion for summary disposition. Specifically, because Garascia failed to establish that there was no genuine factual dispute regarding whether he had constructive notice of the defective condition at issue, he was not
I. BASIC FACTS
Garascia owned a single-family home in 2010 that he leased through a county-operated program to several persons with disabilities. Garascia testified that he had been a licensed residential builder for approximately 20 years and had built his own house. He had previously worked for his father’s construction company and sometimes worked as a bricklayer.
Grandberry-Lovette testified that the steps leading to the home’s porch were concrete with a decorative brick border. Garascia stated that, approximately 9 to 18 months before the fall at issue, he received a call about the need to repair the steps. When he examined the steps, he noticed that some bricks had come out and others were loose. He cleaned off the mortar from the bricks and removed anything that was loose. He then reapplied the mortar to the bricks and put the steps back together. He inspected the remainder of the steps and “everything else was in satisfactory condition.”
Garascia testified that it was normal for bricks to come loose after Michigan winters: “We get the thaw and frost, thaw and frost. They do come loose.” After he repaired the steps, Garascia did not receive any further complaints regarding the steps. He also visited the property several times and did not “observe” any defects. Garascia stated that he just makes a visual inspection when he visits the property, which is usually during the spring and summer months.
In April 2010, Grandberry-Lovette worked as a healthcare aide and had been assigned to assist the residents living at Grascia’s rental home during the
Garascia testified that the bricks that he had previously repaired were not the bricks that were involved in Grandberry-Lovette’s fall.
Grandberry-Lovette sued Garascia in September 2011. She alleged, in relevant part, that Garascia had a duty to “timely and adequately” inspect the steps and ensure that the steps were in good repair or warn his invitees—including her—about the dangerous condition of the steps, which he did not do. She further alleged that Garascia’s breach of these duties proximately caused her injuries.
In May 2012, Garascia moved for summary disposition under MCR 2.116(C)(10). Garascia argued that there was no evidence that he had actual or constructive notice that the steps had any problems. He noted that he had not received any complaints about the steps since he last repaired them and had not himself noticed any problems with the steps during his visits to the property. He also cited Grandberry-Lovette’s testimony that she also had not had any problems with the steps before her fall.
In addition, relying on an unpublished opinion per curiam of the Court of Appeals, Garascia argued that he could not be charged with constructive notice of a defective condition that was not visible on casual inspection because, if a condition is of a kind or sort that a plaintiff could not see it, then the defendant cannot be
The trial court issued its opinion and order in July 2012. The trial court agreed that there was no evidence that Garascia had actual or constructive knowledge that the bricks at issue had come loose and posed a danger. The trial court also determined that Grandberry-Lovette failed to establish that Garascia’s actual inspection regime was inadequate: “[T]he record is devoid of any evidence suggesting [Garascia] would or should have discovered the allegedly defective condition had he inspected the steps after December 2009 but before April 9, 2010.” Because Grandberry-Lovette failed to establish a question of fact regarding whether Garascia had notice of the defective condition, the trial court dismissed her claims.
Grandberry-Lovette now appeals.
II. PREMISES LIABILITY AND NOTICE
A. STANDARDS OF REVIEW
Grandberry-Lovette argues on appeal that the trial court erred when it determined that Garascia established that there was no question of fact that he did not have actual or constructive notice that the steps were defective and granted summary disposition on that basis. This Court reviews de novo a trial court’s decision on a motion for summary disposition. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775 NW2d 618 (2009). This Court also reviews de novo the proper interpretation and application of the common law, such as the law governing
B. THE DUTY TO INSPECT AND CONSTRUCTIVE NOTICE
The parties do not dispute that Grandberry-Lovette was an invitee at the time of her visit to Garascia’s property. An invitee is a person who enters upon another’s land with an “implied representation, assurance, or understanding that reasonable care has been used to prepare the premises, and make [it] safe for [the invitee’s] reception.” Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 597; 614 NW2d 88 (2000) (quotation marks and citation omitted; alterations in original). Garascia, therefore, owed Grandberry-Lovette the highest duty of care. Id. He not only had to warn Grandberry-Lovette about any known dangers, but also had a duty “to inspect the premises and, depending upon the circumstances, make any necessary repairs or warn of any discovered hazards.” Id. Because Garascia had a duty to inspect his premises for latent dangers, he could be liable for harm caused by a latent dangerous condition if the dangerous condition was of a kind or sort that “by the exercise of reasonable care” he would have discovered. Id.
The duty to inspect one’s premises to ensure that the premises are safe for invitees is inextricably linked to the concept of constructive notice. Even if the premises possessor does not have actual knowledge of a dangerous condition—as would be the case for a dangerous condition created by some third party or through gradual deterioration—Michigan courts have long recognized that the law will impute knowledge of the dangerous condition to the premises possessor if the premises possessor should have discovered the dangerous condition in the exercise of reasonable care. See
A good expression of the rule of liability, applicable in such cases, is found in an English case to the effect that the proprietor of such a structure is not a warrantor or insurer that it is absolutely safe, but that he impliedly warrants that it is safe for the purpose intended, save only as to those defects which are unseen, unknown, and undiscoverable,— not only unknown to himself, but undiscoverable by the exercise of any reasonable skill and diligence, or by any ordinary and reasonable means of inquiry and examination. Such being the nature of the obligation, it is obvious that the proprietor of such a building is under a continuing duty of inspection, to the end of seeing that it is reasonably safe for the protection of those whom he invites to come into it; and that, if he neglects his duty in this respect, so that it becomes unsafe, the question of his knowledge or ignorance of the defect which renders it unsafe is immaterial. [Sullivan v Detroit & Windsor Ferry Co, 255 Mich 575, 577; 238 NW 221 (1931) (quotation marks and citation omitted).]
Accordingly, the failure to properly inspect may constitute negligence if a reasonable inspection would have revealed the dangerous condition giving rise to an
In modern cases, the failure to properly inspect is most often framed as one involving constructive notice. When a premises possessor fails to inspect his or her property, or conducts an inadequate inspection, the law will impute knowledge of the dangerous condition to the premises possessor if the dangerous condition is of such a character or has existed for a sufficient time that a reasonable premises possessor would have discovered it. See Clark v Kmart Corp, 465 Mich 416, 419-421; 634 NW2d 347 (2001), citing Serinto v Borman Food Stores, 380 Mich 637, 640-641; 158 NW2d 485 (1968), and Hulett, 299 Mich at 68. Stated another way, a premises possessor cannot avoid liability for the harms caused by a dangerous condition on his or her property by claiming ignorance of its existence if in the exercise of reasonable care the premises possessor should have discovered it.
While seeking summary disposition, Garascia presented evidence that he did not have actual knowledge that the bricks in the steps had become loose. However, as the moving party, Garascia also had to establish that it was beyond genuine factual dispute that he lacked constructive notice of the defective condition. See MCR 2.116(G)(4) (stating that the moving party has the initial burden to identify the issues about which it believes there are no genuine issues of material fact for
With regard to whether he had constructive notice, Garascia argued in his motion that “[n]o liability could be found” for the defective stairs because, if “the defect was visible and should have been known” to him, “it was .. . visible to [Grandberry-Lovette], as well, and therefore open and obvious.” That is, he essentially argued that his duty to inspect his premises was coextensive with Grandberry-Lovette’s personal duty to take reasonable steps to avoid open and obvious hazards. Therefore, he maintained, in the absence of evidence that the step’s dangerous condition was latent and that he created the condition or that someone told him about it, he would never have a duty to repair the defective steps; either he had no duty because the hazard was so readily observable that he had the right to expect his invitees to avoid it or he had no duty because the hazard was so latent that he could not have had notice of its existence before the incident at issue. Garascia’s understanding of constructive notice arising from the duty to inspect, however, is not an accurate statement of Michigan’s common law.
A premises possessor has no duty to rectify dangerous conditions that are “ ‘so obvious that the invitee might reasonably be expected to discover them ....’” Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001), quoting Riddle v McLouth Steel Prod Corp, 440 Mich 85, 96; 485 NW2d 676 (1992). Accordingly, the open and obvious danger doctrine will “ ‘cut off liability if the invitee should have discovered the condition and realized its danger.’ ” Lugo, 464 Mich at 516, quoting Bertrand v Alan Ford, Inc, 449 Mich 606, 611; 537 NW2d 185 (1995). A dangerous condition is
The premises possessor’s duty to inspect, in contrast, is not invariably limited to “casual” observation.
C. SUMMARY DISPOSITION
In his motion for summary disposition, Garascia presented evidence that he did not have actual knowledge that the stairs had fallen into disrepair; specifically, he presented evidence that, if believed, would show that he did not create the defective condition and that no one informed him of the dangerous condition before Grandberry-Lovette’s fall.
With regard to constructive notice, Garascia presented evidence that Grandberry-Lovette did not notice that the bricks at issue had become loose. He then argued that this was evidence that he too would not have discovered the danger had he done an inspection. He did not discuss or present any evidence concerning his actual inspection regime and whether that regime would have revealed the dangerous condition. He also did not discuss or present any evidence that the hazard might have developed within such a short time that, even with a reasonable inspection regime, he would not have discovered that the bricks had come loose. He essentially relied on Grandberry-Lovette’s inability to discover the hazard on casual inspection to establish that he too, as a reasonably prudent premises possessor, would not have discovered that the bricks had come loose. This evidence, even if left unrebutted, was insufficient to establish that a reasonably prudent premises possessor would not have discovered the step’s condition.
Garascia testified that he had years of experience as a builder and had performed work as a bricklayer. He also testified that the brickwork on the steps at issue had in the past deteriorated and come loose. This, he explained, was normal in Michigan because the freeze-thaw cycle causes brickwork to deteriorate and come loose: “It happens to everybody.” Indeed, he repaired
Garascia acknowledged that he knew that brickwork deteriorated under Michigan’s freeze-thaw cycle and that the only way to ensure that the bricks were secure was to physically inspect them. Despite this, when he repaired several loose bricks 9 to 18 months before Grandberry-Lovette fell, he did not physically inspect the remaining bricks; instead, he only performed a visual inspection. Given the evidence that several bricks had already come loose approximately 9 to 18 months before the fall at issue and that it is normal for brickwork to deteriorate gradually over a span of freeze-thaw cycles (that is, during the winter months— the very time that Garascia typically did not visit the property), a reasonable jury could find that the bricks at issue were already loose at that time of the repair, or in the process of coming loose. It could also find that a
Even assuming that the steps were in satisfactory condition after Garascia’s repair, there was evidence from which a reasonable jury could conclude that the bricks at issue must have come loose over the winter before Grandberry-Lovette’s fall and could have been discovered during a physical inspection. Garascia testified that even a properly performed repair can deteriorate over 9 to 18 months and that the “normal” cause of deterioration is the freeze-thaw cycle. Although he also stated that breaking ice and applying salt can contribute to the loosening of bricks, those activities are routine during Michigan winters. Hence, a jury could find that a reasonably prudent premises possessor would understand that—in addition to the deterioration caused by the freeze-thaw cycle in a typical Michigan winter—the premises possessor’s lessees might further cause deterioration by applying salt and breaking ice. It follows that the jury might find that a reasonably prudent premises possessor would for that reason physically inspect the brickwork during and after every winter. Moreover, Grandberry-Lovette testified that the bricks “crumbled” when she stepped on them. The fact that the bricks crumbled suggests that the mortar had deteriorated from exposure to the freeze-thaw cycle. Accordingly, a reasonable jury could find that the deteriorated condition of the brickwork occurred over time and could for that reason have been discovered long before Grandberry-Lovette’s fall. Because Garascia testified that he did not inspect the brickwork during the winter months or in the spring immediately before Grandberry-Lovette’s fall, a reasonable jury could find that he breached his duty by failing to inspect the brickwork after the period when it was
III. CONCLUSION
The trial court erred when it determined that the undisputed evidence showed that Garascia did not have actual or constructive notice that the steps at issue were defective. Because Garascia failed to present evidence that a reasonably prudent premises possessor operating under the same conditions as Garascia would not have discovered the dangerous character of the steps, Grandberry-Lovette did not have the burden to come forward with evidence to establish a question of fact on that issue and the trial court should have denied Garascia’s motion on that basis. In any event, as Grandberry-Lovette showed in her response to Garascia’s motion, given Garascia’s testimony, there was at least a question of fact regarding whether he would have discovered the danger posed by the steps with a reasonable and timely inspection. Therefore, the trial court erred when it granted summary disposition in Garascia’s favor on the ground that the undisputed facts showed that he did not have constructive notice of the defect.
It is curious that this duty could be referred to by the dissent as novel, given its long and venerable pedigree.
We are cognizant of only one published authority that has characterized a premises possessor’s duty to inspect as a “casual” duty. See Raatikka v Jones, 81 Mich App 428, 431; 265 NW2d 360 (1978). That case, however, involved the statutory duty imposed under the Michigan housing law rather than the common law. And, to the extent that the opinion can be read as stating the duty imposed under our common law,
The party bringing a motion under MCR 2.116(C)(10) must identify the issues that he or she believes are not in dispute, MCR 2.116(G)(4), and must support that contention with evidence, MCR 2.116(G)(3). A defendant may not support a motion under MCR 2.116(0(10) by merely asserting his or her belief that the plaintiff will ultimately be unable to establish an element at trial. In such a situation, the nonmoving party has no obligation to respond and the trial court should deny the motion. Barnard Mfg, 285 Mich App at 370.
To the extent that Garascia’s assertion that he lacked constructive knowledge of the defective condition is belied by his own testimony regarding the state of the brickwork and the freeze-thaw cycle, we note that the trial court was required to consider all admissible evidence then filed in the action, and not merely that evidence tending to support Garascia’s position. Barnard Mfg, 285 Mich App at 377, quoting MCR 2.116(G)(5) (“Accordingly, if a party refers to and relies on an affidavit, pleading, deposition, admission, or other documentary evidence, and that evidence is ‘then filed in the action or submitted by the parties,’ the trial court must consider it.”).
Dissenting Opinion
(dissenting). I respectfully dissent. The majority invents a novel duty that requires premises possessors to predict when and whether Michigan weather might cause decorative bricks to loosen. I am unconvinced that Michigan law requires any premises possessor to be meteorologically clairvoyant about masonry. In my view, the majority opinion creates a new doctrine of anticipatory notice, which has never been recognized in Michigan. I decline to apply this new doctrine. Instead, I accept the trial court’s application of the well-recognized doctrine of constructive notice, and I would affirm the grant of summary disposition in favor of defendant.
Plaintiff argues, and the majority holds, that there is a genuine issue of material fact regarding whether defendant had notice of any wobbling in the decorative brick on the porch steps. I find no factual issue. Premises possessors may be liable for injuries that result from a dangerous condition on their premises if they have actual notice of the condition or if the condition is of such a kind or sort that the law ascribes constructive notice of the condition to the premises possessor. See, generally, Clark v Kmart Corp, 465 Mich 416, 419; 634 NW2d 347 (2001). A premises possessor has constructive notice of a dangerous condition if the condition is “of such a character or has existed a sufficient length of time that he
The record contains nothing to create a factual issue about constructive notice. Although the record indicates that defendant had repaired the steps once, there is no indication that the bricks routinely became loose. Plaintiff argues that because defendant once repaired part of the steps, defendant forever had constructive notice that any part of the steps could be defective. However, plaintiff presented no evidence to establish that defendant was aware of a defect in any part of the steps at the time of plaintiffs fall. I cannot find that defendant’s prior repair of the steps gave him constructive notice that a future defect might occur. Nor can I find that the prior repair created a continual duty to scrutinize the steps.
Plaintiff asserts that a question of fact existed regarding whether defendant had actual notice of the defect in the steps because he previously repaired another section of the steps and, therefore, knew of the bricks’ propensity to break free from the concrete steps. However, general knowledge that bricks may become loose does not constitute actual notice of the condition that caused plaintiff’s fall. See, generally, Altairi v Alhaj, 235 Mich App 626, 640; 599 NW2d 537 (1999). Thus, the evidence, even when viewed in the light most favorable to plaintiff, did not create a genuine issue of material fact with regard to whether defendant had actual notice of the alleged defect in the steps.
The majority’s new duty requires defendant to prove a negative, i.e., that an inspection by a reasonably prudent premises possessor “would not have revealed the dangerous condition at issue.” Ante at 579 (emphasis added). If, as the majority seems to suggest, a wobbly brick is not apparent from a visual inspection, I cannot see how premises possessors could possibly prove that they fulfilled the new duty.