Gift of the Magi-ority: Supreme Court Hands Premises Owners Golden Opinion on Notice Defense

Premises owners in Michigan received an early Christmas gift from the Michigan Supreme Court, in the form of a unanimous opinion rejecting the requirement to show a reasonable inspection when claiming lack of notice of a hazardous condition.

In Lowrey v. LMPS & LMPJ, Inc., Docket No. 153025 (Dec. 13, 2016), the plaintiff alleged that she slipped and fell on the wet stairs of the defendant’s bar on St. Patrick’s Day, breaking her tibia and fibula. 

The defense moved for summary disposition under MCR 2.116(C)(10), arguing it lacked actual or constructive notice of the alleged hazard, and that the hazard was open and obvious. 

The trial court’s grant of summary disposition on both grounds was reversed in a published opinion by the Michigan Court of Appeals, 313 Mich App 500; 885 NW2d 638 (2015). The appellate court held that the defense had failed to present evidence of whether a reasonable inspection of the premises would have given the owner constructive notice of the condition, and further holding that the defense was not entitled to summary disposition based on the plaintiff’s lack of proofs as to notice.

In reversing the appellate court, the Supreme Court made three rulings which are more precious to premises owners than gold, frankincense or myrrh:

1. A premises owner moving for summary disposition under MCR 2.116(C)(10) based on lack of notice is not required to prove that it lacked actual or constructive notice, and is therefore not required to show that a routine or reasonable inspection of the premises would have failed to discover the hazard. The burden remains on the claimant to present evidence that the premises owner had actual or constructive notice of the hazard.

2. A defendant moving for summary disposition can satisfy its burden by either submitting evidence to negate an essential element of the plaintiff’s claim, or by demonstrating the insufficiency of the plaintiff’s proffered evidence to establish the element of the claim. The burden is on the plaintiff to produce enough evidence to create a genuine issue of material fact on each element of her claim to withstand summary disposition.

3. To the extent the prior decision of the appellate court in Grandberry-Lovette v. Garascia, 303 Mich App 566; 844 NW2d 178 (2014) is contrary to the above two holdings; it was incorrect.

Having set straight the parties’ respective burdens on summary disposition in premises liability and other cases, the Supreme Court can now settle down for a well-deserved long winter’s nap. Click here for to view Plunkett Cooney's Rapid Report on Lowrey.

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