Premises Liability

November 8, 2017

Michigan Appeals Court Affirms Holding for Defendant in Applebee’s Slip-and-Fall Case

Plaintiff appealed trial court’s grant of summary disposition in favor of defendant in a premises liability slip-and-fall action. Plaintiff was a business invitee at defendant’s Applebee’s Restaurant, walked to the restroom, and on her way back slipped and fell on an area of tiled flooring in front of the kitchen. After her fall, plaintiff noticed an oily residue on her hands and knees. Plaintiff contends that defendant knew or should have been aware of the condition of the floor and failed to properly maintain the premises. The trial court granted summary disposition upon concluding that plaintiff had failed to establish a genuine question of fact whether defendant had notice of or created the dangerous condition. The Michigan Court of Appeals affirmed.The appeals court first noted that the trial court properly deemed this a premises liability action rather than a negligence action, because plaintiff’s injury arose from an allegedly dangerous condition on the land. A plaintiff in a premises liability action has the burden to prove (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff’s injury, and (4) the plaintiff suffered damages. A premises owner breaches its duty of care when it knows or should know of a dangerous condition on the premises of which the invitee is unaware and fails to fix the defect, guard against the defect, or warn the invitee of the defect. When there is no evidence to show that a defendant had actual knowledge of the condition, the issue is whether defendant had constructive notice. Constructive notice is established if the evidence demonstrates that the condition is of such a character, or has existed for a sufficient length of time, that the landowner should have had knowledge of it. When the landowner or his agent creates the dangerous condition, active negligence exists, and proof of notice is not required.

Plaintiff did not assert that defendant had actual knowledge of the condition of the floor. The appeals court concluded plaintiff failed to prove that defendant had constructive notice of the defect by presenting evidence that the hazard was of such a character, or had existed for a sufficient time, that a reasonable premises possessor would have discovered it. By her own testimony, she had traversed the same area of the floor on her way to the restroom without noticing anything wrong, and she opined that it was “different” on the way back when she fell. Indeed, plaintiff did not observe any grease on the floor at all, but rather only on her hands and knees; other witnesses testified that they inspected the area after the fall and saw no grease or oil on the floor.

Plaintiff argued that the floor had by defendant’s admission not been cleaned for many hours. However, although the residue on plaintiff’s hands and knees was sufficient to raise a question of fact as to whether there was residue on the floor when she fell, it was pure speculation when it was deposited, and based on her noticing a difference on her way back from the restroom and her own description of how difficult it was to get up after her fall, the evidence strongly implied that any such residue could not have been deposited longer ago than her trip to the restroom. Furthermore, its invisibility to her and to the other witnesses also suggested that defendant should not have been aware of its presence until plaintiff fell.

September 20, 2017

Michigan Man Sues Hip-Hop Group For Concert Injury

by Neumann Law Group

A Michigan man has filed suit against an Atlanta-based hip-hop duo for hitting his nose with a water bottle during a show. Court documents signify that the plaintiff–who has not been identified–attended a show in October 2016, at which the rappers recklessly launched full water bottles into the audience. One hit the plaintiff directly in the face, allegedly leaving him with a migraine and permanent scarring.The plaintiff claimed the water bottle was catapulted forcefully enough to rip off a “chunk of his face.” He was sent via ambulance to the hospital, where they determined that he would be permanently disfigured and scarred. He filed suit for assault, battery, and negligence. He is seeking damages for medical fees, as well as punitive damages.

This isn’t the only lawsuit of its kind. Also this month, one of Katy Perry’s stagehands claimed she lost a toe while working on Perry’s tour. Christina Fish was hired for Perry’s 2014 international tour. At a North Carolina show, a wall Fish was asked to move got stuck and rolled over her foot. Her toe allegedly became gangrenous and eventually needed to be amputated. Fish is suing Perry, Live Nation, and several production companies for damages.

Likewise, a woman who was allegedly raped at a Future and Drake concert last year is suing both rappers (among other defendants) for $25 million. She claims the defendants’ negligence caused the rape. According to the federal lawsuit, the woman (identified as Jane Doe) claimed that during an August 2016 concert in Nashville, she was approached by a man associated with the venue who offered to take her backstage. As the woman followed the man backstage, the lawsuit claimed, he suddenly pushed her to the ground and “violently assaulted her, shattering her cell phone and causing severe physical and psychological injury.” The lawsuit claims that her attacker had a public history of assault, and therefore the defendants should have known that employing him could “pose unreasonable risk to others.”

July 6, 2017

Michigan Appeals Court Holds Plaintiff Failed to Prove Defendant Had Notice of Dangerous Condition in Slip and Fall Case

by Neumann Law Group

A plaintiff appealed an Oakland Circuit Court order granting summary disposition in favor of the defendant in a premises liability action. Holding the plaintiff failed to establish that he was the defendant’s tenant or that the defendant had notice of the alleged dangerous condition, the Michigan Appeals Court affirmed.In February 2014, the plaintiff drove to the defendant’s clubhouse to pay rent. As he walked back toward his car, he slipped on a patch of ice, fell, and was seriously injured. The plaintiff sued the defendant property owner/manager for negligence and a violation of his statutory duties. The defendant moved for summary disposition, arguing that it had no actual or constructive knowledge of the ice. The defendant further asserted that neither of the statutory violations alleged by the plaintiff applied. The trial court agreed, granted the defendant’s motion, and dismissed the plaintiff’s complaint. The plaintiff appealed.

April 12, 2017

Michigan Appeals Court Holds Club Owner Not Liable For Actions of Off-Duty Bouncer

by Neumann Law Group

The Michigan Court of Appeals recently affirmed an order of the circuit court granting summary disposition in favor of a defendant club owner in a case involving a physical fight at the defendant’s strip club.After a fight broke out between two of the club’s dancers, a bouncer became involved in the altercation, assisting in separating the combatants and bystanders. He worked at the club as a part-time bouncer but was present in the club as a patron at the time of the altercation. The plaintiff was performing as a dancer at the time and was a bystander to the altercation. She sustained an injury to her arm, which she alleged was caused by the bouncer when he seized her and pushed her into a doorway in the process of breaking up the fight. The plaintiff based her claim against the defendant club owner on a theory of vicarious liability for the bouncer’s conduct while he was acting within the scope of his employment with the defendant. She also alleged a claim involving negligent hiring and employment.

April 5, 2017

Michigan Appeals Court Rules for Defendants in Black Ice Slip and Fall Case

by Neumann Law Group

A plaintiff was injured when he slipped and fell on black ice while entering his car, which was parked underneath a carport at his condominium complex. He filed suit against (1) the condominium association; (2) a company that had contracted with the association approximately three years earlier to install gutters along the front side of the carport; (3) the company that actually installed the gutters pursuant to a subcontract with the contractor; and (4) the company that had contracted to provide snow and ice removal services for the condominium complex. The trial court entered separate orders granting summary disposition in favor of each defendant, pursuant to MCR 2.116(C)(10). The plaintiff appealed, and the Michigan Court of Appeals affirmed.On appeal, the plaintiff contended that the trial court improperly granted summary disposition in favor of the association because the ice on which he fell was not open and obvious, and the association cannot avoid liability for a condition that it created or permitted to exist because it had actual or constructive notice of such a condition.

March 1, 2017

Michigan Appeals Court Upholds Ruling for Defendant Market Following Slip and Fall

by Neumann Law Group

A plaintiff appealed a trial court’s order granting summary disposition to a defendant fruit market after the plaintiff tripped over a landscaping tool in the defendant’s store. The Michigan Court of Appeals affirmed the lower court’s judgment.The appeals court began by outlining Michigan’s premises liability law. In a premises liability action, a plaintiff must prove the elements of negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff’s injury, and (4) the plaintiff suffered damages. Typically, a landowner owes a duty to use reasonable care to protect invitees from unreasonable risks of harm posed by dangerous conditions on the owner’s land. A landowner may be liable for breaching this duty if it is aware of a dangerous condition but fails to fix the defect, guard against the defect, or warn the invitee of the defect. However, it is well-settled that a landowner’s duty to protect does not extend to dangers that are open and obvious.

February 2, 2017

Michigan Appellate Court Rules Question of Whether Dangerous Condition Was Open and Obvious Should Go To Jury

by Neumann Law Group

The Michigan Court of Appeals recently held that the lower court erroneously granted summary judgment to the defendants following the plaintiff’s fall at the defendants’ home, reasoning that the conflicting evidence regarding whether the dangerous condition was open and obvious should be sent to a jury.One evening in December 2013, the plaintiff attended a dinner party at the defendants’ home. The home includes a hallway that leads from the front door to the living room and dining room area. There are two rooms on each side of the hallway, a bathroom and a mud room. There is an approximately eight-inch drop-off as one steps into the mud room from the hallway. The plaintiff went to put her purse in the mud room and fell upon entry as a result of the drop-off. She was injured and filed suit. The defendants moved for summary disposition, arguing that the drop-off was open and obvious, and therefore, they had no duty to warn the plaintiff of its existence. The trial court granted the defendants’ motion. The plaintiff appealed.

October 3, 2016

Michigan Appeals Court Reverses Ruling for Defendant Maze Owner Because Dangerous Condition Was Effectively Unavoidable

by Neumann Law Group

Appellant Michael Davis fell and broke his leg while trying to avoid flowing water funneling down a sloped exit path from a haunted corn maze owned by defendant Jeffrey Lenhart. The circuit court summarily dismissed Davis’ premises liability claim, finding the condition open and obvious. In doing so, the circuit court rejected evidence that maze employees directed Davis onto the path as the means to exit the maze, creating a question of fact as to whether the condition was effectively unavoidable. For this reason, the appeals court vacated the circuit court’s summary disposition order and remanded.The appeals court first outlined Michigan’s premises liability law, with attention to the open and obvious danger doctrine and its narrow exceptions. A landowner must use reasonable care to protect invitees from unreasonable risks of harm posed by dangerous conditions on his land. As a paying customer, Davis was an invitee on Lenhart’s land. Under Michigan law, a landowner has breached this duty when he knows or should have known of a dangerous condition on the premises, of which the invitee was unaware, and failed to fix or warn of the defect.

July 13, 2016

Michigan Supreme Court Reverses Grant of Summary Disposition to Defendant City Following Plaintiff’s Fall on Public Highway

by Neumann Law Group

The Michigan Supreme Court recently reversed a lower court’s grant of summary disposition for a defendant city following a plaintiff’s fall on a poorly maintained public highway.Plaintiff Barbara Kozak was allegedly injured while traversing a public highway in Lincoln Park when she tripped over an elevation differential between the two slabs of concrete in the center of the street. Kozak sued the city of Lincoln Park pursuant to the “highway exception” to the governmental tort liability act (GTLA), alleging that the defendant failed to maintain the highway in reasonable repair so that it was reasonably safe and convenient for public travel.

May 17, 2016

Michigan Appeals Court Finds Black Ice on Which Plaintiff Slipped Was “Open and Obvious”

by Neumann Law Group

The Michigan Court of Appeals recently ruled that the black ice on which a plaintiff was injured was open and obvious, triggering no legal duty for the defendants to exercise reasonable care and rendering summary judgment appropriate.

In February 2011, plaintiff Trawmisha Toney visited Eastland Mall in Harper Woods, which is owned and operated by the defendants. While traversing the parking lot, Toney slipped on ice and was injured. She sued for premises liability, alleging the defendants had violated their duty to warn her of a dangerous situation on their property — specifically, black ice.