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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

In <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/SCT/153025_51_01.pdf" target="_blank" rel="noreferrer noopener">Lowrey v. LMPS &amp; LMPJ Inc, No. 153025</a>, the Michigan Supreme Court, without oral argument, held the Court of Appeals erred when it both improperly shifted the burden to defendant to prove its lack of notice of a hazardous condition and imposed a new element necessary to prove such lack of notice thereby improperly imposing a new requirement on premises owners seeking summary disposition. Accordingly, the Court reversed the judgment of the Court of Appeals regarding defendant’s notice, reinstated the trial court’s order granting summary disposition in favor of defendant on that issue, and vacated the remainder of the Court of Appeals’ opinion.

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Plaintiff Lowrey slipped and fell on defendant’s premises - Woody’s Diner. Plaintiff acknowledged she had not seen any water on the stairs, but assumed the stairs were wet because her backside was wet after she landed from her fall. After being diagnosed with and treated for a broken tibia and fibula, plaintiff sued defendant, alleging negligence. The Michigan Supreme Court held the plaintiff, and not the defendant was required to present evidence that defendant had actual or constructive notice of the wet steps. The plaintiff failed to present any evidence that the defendant knew or should have known about the wet steps.

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The Court held in order to obtain summary disposition under MCR 2.116(C)(10), defendant was not required to present proof that it lacked notice of the hazardous condition, but needed only to show that plaintiff presented insufficient proof to establish the notice element of her claim. The Court concluded that defendant met its burden because plaintiff failed to establish a question of fact as to whether defendant had notice of the hazardous condition.

Therefore, the Court of Appeals erroneously shifted the burden to defendant by ruling that because defendant “failed to present evidence that, if left unrebutted, would establish that it did not have actual or constructive notice of the condition. Defendant is not required to go beyond showing the insufficiency of plaintiff’s evidence. The Court of Appeals erred when it imposed an additional requirement on defendant: to proffer evidence to negate one of the elements of plaintiff’s claim.

Therefore, in order to show notice, plaintiff had to demonstrate that defendant knew about the alleged water on the stairs or should have known of it because of its character or the duration of its presence. Serinto v Borman Food Stores, 380 Mich 637, 640-641; 158 NW2d 485 (1968). The Court held the plaintiff failed to proffer evidence sufficient to demonstrate a question of fact regarding defendant’s actual or constructive notice of the hazardous condition, and defendant was entitled to summary disposition on this basis.

Accordingly, the Court of Appeals (1) improperly altered the burden of proof a moving party must meet to obtain summary disposition under MCR 2.116(C)(10) in a negligence action based on premises liability; (2) improperly required defendant to provide “proof of reasonable inspection” to show that it lacked constructive notice of the alleged harm; and (3) erred by reversing the trial court’s grant of summary disposition to defendant. Accordingly, the Michigan Supreme Court unanimously reversed the judgment of the Court of Appeals regarding defendant’s notice, reinstated the trial court’s order granting summary disposition in favor of defendant on that issue, and vacated the remainder of the Court of Appeals’ opinion.

Partner

Jason L. Byrne

Labor and Employment

MSC: Onus is on plaintiff not defendant, to prove notice of hazard in slip and fall case

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MSC: Onus is on plaintiff not defendant, to prove notice of hazard in slip and fall case

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