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.