John T Courtright v. Indianwood Golf & Country Club Inc ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JOHN T. COURTRIGHT, UNPUBLISHED
September 3, 2020
Plaintiff-Appellant,
v No. 350773
Oakland Circuit Court
INDIANWOOD GOLF & COUNTRY CLUB, INC., LC No. 2018-168464-NO
Defendant-Appellee.
Before: GLEICHER, P.J., and STEPHENS and RIORDAN, JJ.
PER CURIAM.
Plaintiff suffered a serious injury when he fell out of his motorized wheelchair at a wedding
reception on defendant’s premises. The accident occurred as plaintiff’s wheelchair negotiated a
small step leading down from the dance floor to an outdoor patio. Plaintiff fell forward from his
chair, striking his face on the patio’s surface. Defendant successfully sought summary disposition
on the ground that the step was open and obvious. We affirm for a different reason: plaintiff failed
to present any evidence that the step constituted a dangerous condition or presented an
unreasonable risk of injury.
I
At approximately 11 p.m., plaintiff danced with his cousins while seated in his wheelchair.
After a song ended, he joined a group of people who were walking from the dance floor out to the
patio through a large open doorway. Plaintiff had been on the patio earlier, in daylight; at that
time, however, he accessed the patio through a different door equipped with a ramp. Plaintiff did
not realize that at the doorway he used in the evening, a small step led down from the dance floor
to the patio. He testified that the lighting conditions made it impossible for him to appreciate the
height discrepancy between the dance floor and the patio.
As plaintiff’s wheelchair went over the step, plaintiff slid forward out of his seat and onto
the ground. He suffered a laceration to his forehead and a fractured femur. His complaint alleges
that defendant negligently failed to protect him from and warn him about the “unreasonable risk
of harm caused by dangerous conditions present upon” the premises. He additionally averred that
the step violated two building codes.
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Defendant moved for summary disposition pursuant to MCR 2.116(C)(10) on the ground
that the allegedly dangerous condition was open and obvious. The trial court agreed and granted
summary disposition on that ground. This appeal ensued.
II
We review de novo a trial court’s decision regarding a motion for summary disposition.
El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). A motion under
MCR 2.116(C)(10) tests whether a claim is factually sufficient. Id. at 160.
When considering such a motion, a trial court must consider all evidence submitted
by the parties in the light most favorable to the party opposing the motion. A
motion under MCR 2.116(C)(10) may only be granted when there is no genuine
issue of material fact. A genuine issue of material fact exists when the record leaves
open an issue upon which reasonable minds might differ. [Id. (quotation marks and
citations omitted).]
A plaintiff prosecuting a premises liability case must establish the elements of any
negligence claim, including that the defendant owed a duty to the plaintiff and that the defendant
breached that duty. Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 693; 822 NW2d
254 (2012). Generally, a landowner owes a duty to exercise reasonable care to protect an invitee
from an unreasonable risk of harm caused by a dangerous condition on the land. Id. But “[a]
possessor of land is not an absolute insurer of the safety of an invitee.” Id. (quotation marks and
citation omitted).
As a general rule, steps and differing floor levels are not “ordinarily actionable unless
unique circumstances surrounding the area in issue” make the situation unreasonably dangerous.
Bertrand v Alan Ford, Inc, 449 Mich 606, 614; 537 NW2d 185 (1995) (emphasis in original). The
Supreme Court explained in Bertrand that “steps are the type of everyday occurrence that people
encounter,” and that most of the time, “a reasonably prudent person will look where he is going,
will observe the steps, and will take appropriate care for his own safety.” Id. at 616. Possessors
of land are under no affirmative obligation “to make ordinary steps ‘foolproof.’ Therefore, the
risk of harm is not unreasonable.” Id. at 616-617. But if the steps are unusual “because of their
‘character, location, or surrounding conditions,’ ” a duty of reasonable care emerges. Id. at 617.
“If the proofs create a question of fact that the risk of harm was unreasonable, the existence of duty
as well as breach become questions for the jury to decide.” Id.Plaintiff failed to present any substantively admissible evidence substantiating that the step
was unusual or that it presented an unreasonably dangerous condition.
When opposing a motion for summary disposition under MCR 2.116(C)(10), “an adverse
party may not rest upon the mere allegations or denials of his or her pleading, but must, by
affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a
genuine issue for trial.” MCR 2.116(G)(4). Only “the substantively admissible evidence actually
proffered in opposition to the motion” may be considered. Maiden v Rozwood, 461 Mich 109,
121; 597 NW2d 817 (1999); MCR 2.116(G)(6). This requirement means that “only evidence
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whose content or substance is admissible can” be considered in reviewing a motion for summary
disposition under subrule (C)(10). Maiden, 461 Mich at 123.
The single step at issue is an ordinary, everyday step. Plaintiff asserts that the darkness of
the evening rendered the step difficult to discern. Defendant submitted evidence that the doorway
to the patio was illuminated by six 25-watt bulbs, and that the patio itself was lit by three 25-watt
bulbs. Plaintiff did not provide any contrary evidence. Thus, this case is readily distinguishable
from Blackwell v Franchi, 318 Mich App 573; 899 NW2d 415 (2017), in which we held that an
eight-inch drop into an unlit interior room potentially constituted an unreasonably dangerous
condition. The step at issue here was of normal height and was not shrouded in darkness.
Plaintiff further alleges that the step failed to meet various building code provisions, but in
support of this allegation and in opposition to summary disposition he submitted only an unsigned
report from a purported expert. Because the report was not in a substantively admissible form, we
cannot consider it.
The expert’s letter was neither signed nor notarized. Plaintiff offers no argument and cites
no authority supporting that a letter in such form may be considered as substantively admissible
evidence in opposition to a motion for summary disposition. We have held that “an unsworn,
unsigned affidavit may not be considered by the trial court on a motion for summary disposition.”
Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 120; 839 NW2d 223 (2013). An
unsigned, unsworn report is a step beyond that—and one we will not cross to save plaintiff’s case.
We affirm.
/s/ Elizabeth L. Gleicher
/s/ Cynthia Diane Stephens
/s/ Michael J. Riordan
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