Plaintiff appeals as of right from an order of the circuit court dated February 18, 1986, granting defendant’s motion for summary disposition. MCR 2.116(C)(10).
Plaintiff filеd a complaint seeking damages for injuries sustained on April 9, 1984, when he slipped on a puddle of oil located in a pаrking lot owned by the defendant. According to the plaintiff, the oil puddle was rather small, but was surrounded by an oil stain 2Vz feet in diameter. Plаintiff also indicated that he did not notice the oil spill prior to his fall.
In ruling on the defendant’s motion, the trial court noted that in a sliр and fall accident defendant is liable to plaintiff, as a business invitee, "for injury resulting from an unsafe condition either caused by the active negligence of himself and his employees or, if otherwise caused, where known to the storekeeper or is of such a character or has existed a sufficient length оf time that he should have had knowledge of it.”
Serinto v Borman Food Stores,
Plaintiff attacks the trial court’s ruling by proрosing the following theory. Noting that the oil stain was much larger than the actual puddle itself, plaintiff concludes that the stain must have resulted from the evaporation of the oil spill. Given the nаturally slow rate of evaporation,
However, as provided in MCR 2.116(G)(4), when a motion for summary disposition under rule 2.116(C)(10) is made and supported as provided in the rule, "an adverse party may nоt rest upon the mere allegations or denials of his or her рleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial.” Plaintiff’s evaporation theory was completely unsupported by any expert testimony, either by deposition or affidavit, and thus amоunts to no more than sheer speculation and conjeсture.
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Since "[m]ere conjecture does not meet the burden of the opposing party to come forward with affidavits or some other evidentiary proof to establish that there exists a genuine issue of material fact,”
Szidik v Podsiadlo,
Affirmed.
Notes
We also note that, while plaintiff’s theory has a certain logical consistency, there exists an equally plausible explanation for the dispаrity in the size of the puddle and the stain, that being the propensity of oil to saturate the surrounding pavement after it has been spilled. Assuming that saturation occurs at a much faster rate than еvaporation, the spill may have been present in the dеfendant’s parking lot for only a brief time before the plaintiff’s fall. While it might be said that, without expert testimony, speculation is also required to conclude that saturation occurs at a fаster rate than evaporation, such an argument merely points out the fact that plaintiff has failed to "establish circumstances 'such as to take the case out of the realm of conjecture’ and into 'the field of legitimate inferences from established facts,’ ”
Whitmore v Sears, Roebuck & Co,