            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


CAROLENA HARPER,                                                     UNPUBLISHED
                                                                     July 2, 2020
               Plaintiff-Appellant,

v                                                                    No. 347651
                                                                     Oakland Circuit Court
AMERICAN CURRENT CARE OF MICHIGAN,                                   LC No. 2017-160952-NO
PC, doing business as CONCENTRA URGENT
CARE,

               Defendant-Appellee.


Before: LETICA, P.J., and STEPHENS and O’BRIEN, JJ.

PER CURIAM.

        In this premises liability action, plaintiff appeals as of right an order granting summary
disposition in favor of defendant under MCR 2.116(C)(10). Plaintiff argues on appeal that the trial
court erred in determining that there was no genuine issue of material fact regarding whether the
floor mat over which she fell was an open and obvious danger, that the floor mat did not contain
special aspects, and in denying her request to amend her complaint. This appeal has been decided
without oral argument pursuant to MCR7.214(E). We affirm.

                                       I. BACKGROUND

        Plaintiff was injured at work. After her fall at work, plaintiff began using a walker.
Plaintiff was using her walker during a visit to the defendant’s urgent care facility. There were
several floor mats in the lobby of the facility. Plaintiff and her friend, Kenneth Hall, who
accompanied her on this visit, had noticed those mats at a previous visit. The floor mats were dark
gray or black in color, and were on either a linoleum or light-colored wood floor. Plaintiff did not
have any difficulty walking over the floor mats during her prior visit.

        When plaintiff and Hall arrived at the urgent care, it was light outside and the lobby was
well-lit. They sat together in the lobby until plaintiff was called into the examination room. When
she was called, plaintiff walked through the door to the examination rooms. She did not experience
any issue with the floor mat walking from the lobby into the examination room.




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        After her appointment, the doctor walked plaintiff out of the examination room and held
the door open for her that led into the lobby. Plaintiff ambulated into the lobby on her walker.
Plaintiff acknowledged that her gaze was focused on Hall as she entered the lobby. Hall testified
that another person in the lobby drew his attention to a portion of the mat at the far end which was
turned up. Hall attempted to reach the plaintiff to warn her or catch her but she fell before he
accomplished either. Plaintiff testified that all she remembered was falling backward, trying to
get up, and the doctor telling her not to get up and that the EMS was coming. Hall testified that
when he saw plaintiff fall, she was pushing her walker forward and looking straight ahead,
although her head was slightly turned to the right as she was listening to the doctor behind her who
was walking her out. He witnessed one of the legs on the walker get caught on the corner of the
floor mat, which was “turned up” or “curled up.” Plaintiff was taken to Beaumont Hospital in
Royal Oak where she underwent emergency brain surgery.

         Plaintiff filed a complaint against defendant alleging negligence on the basis of her fall
over the turned up corner of the floor mat. The defendant filed a motion for summary disposition
pursuant to MCR 2.116(C)(10). At the hearing on defendant’s motion, plaintiff admitted there
was no evidence that the defendant caused the mat to be upturned or had notice of its condition.
Additionally, the court found that the floor mat was an open and obvious condition which
contained no special aspects. Plaintiff attempted to raise theories that defendant was also liable
for failing to assist plaintiff in walking and for violations of the Americans with Disabilities Act.
The trial court however declined to rule on these arguments, noting that plaintiff did not raise them
in her complaint or seek leave to file an amended complaint. In its opinion granting summary
disposition to defendant, the court stated that the plaintiff failed to “explain or rationalize” why
such a late amendment would not unduly prejudice the defendant.

        The trial court granted defendant’s motion for summary disposition and denied plaintiff’s
oral request to allow her to amend the complaint. The trial court held that plaintiff failed to present
evidence that defendant was on notice of, knew of, or should have known of the alleged defect.
This appeal followed.

                                  II. SUMMARY DISPOSITION

        “This Court generally reviews de novo a trial court’s ruling on summary disposition
motions.” Bennett v Russell, 322 Mich App 638, 642; 913 NW2d 364 (2018). “A motion under
MCR 2.116(C)(10) . . . tests the factual sufficiency of a claim.” El-Khalil v Oakwood Healthcare,
Inc, 504 Mich 152, 160; 934 NW2d 665 (2019). “A motion brought under MCR 2.116(C)(10)
may only be granted when there is no genuine issue of material fact.” Id. “A genuine issue of
material fact exists when the record leaves open an issue upon which reasonable minds might
differ.” Id. (Citation and quotation marks omitted). In making a decision on a motion for summary
disposition under MCR 2.116(C)(10), the trial court considers “the affidavits, pleadings,
depositions, admissions, and other evidence submitted by the parties . . . .” Bennett, 322 Mich
App at 642 (citation and quotation marks omitted). This Court, reviewing a motion under MCR
2.116(C)(10), considers “[t]he relative strength of the evidence offered by plaintiff and
defendants . . . .” El-Khalil, 504 Mich at 162.

       The party bringing the motion for summary disposition has the initial burden of supporting
its motion with affidavits, depositions, admissions or other documentary evidence. Sprague v


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Farmers Ins Exch, 251 Mich App 260, 264; 650 NW2d 374 (2002). The burden then shifts to the
party opposing the motion, who must then establish that a genuine issue of material fact exists,
and must go beyond mere allegations or denials of the pleadings, and establish specific facts
demonstrating a triable issue of fact. Id. “If the opposing party fails to present documentary
evidence establishing the existence of a material factual dispute, the motion is properly granted.”
Id.

        The trial court’s first basis for the grant of summary relief was that plaintiff failed to
produce any evidence that defendant was on notice of, knew of, or should have known of the turned
up corner of the floor mat. Plaintiff does not address that reasoning on appeal, and focuses on the
open and obvious and special aspect doctrines. If a party fails to dispute the basis of the trial
court’s ruling, this Court need not consider granting relief. Derderian v Genesys Health Care
Systems, 263 Mich App 364, 381; 689 NW2d 145 (2004). At trial, the court received an admission
from counsel that no evidence had been presented on the issue of notice:

       THE COURT: My question is, there’s no evidence to support that they either
       caused it to be raised or knew of its existence before your client fell.

       MR. SMITH: That would be true.

The court, citing Berryman v K Mart Corp, 193 Mich App 88, 92; 483 NW2d 642 (1992), ruled
that the failure to present any documentary evidence on the issue was fatal to plaintiff’s cause.

      Because the issue of notice is dispositive we need not address the open and obvious
arguments presented by plaintiff.

                            III. REQUEST TO AMEND COMPLAINT

        An issue is preserved if it was “raised, addressed, and decided by the lower court.” Mouzon
v Achievable Visions, 308 Mich App 415, 419; 864 NW2d 606 (2014) (quotation marks and
citation omitted). Plaintiff did not file a motion to amend her complaint, but briefly mentioned
that she could amend her complaint before trial. As such, this issue was not properly brought
before the trial court and is not preserved on appeal. “Because plaintiff did not preserve this issue
in the circuit court, our review is limited to plain error.” Kloian v Schwartz, 272 Mich App 232,
242; 725 NW2d 671 (2006).

          “To avoid forfeiture under the plain error rule, three requirements must be met: 1) the error
must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected
substantial rights.” Kern v Blethen-Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000)
(quotation marks and citation omitted). “[A]n error affects substantial rights if it caused prejudice,
i.e., it affected the outcome of the proceedings.” Lawrence v Mich Unemployment Ins Agency,
320 Mich App 422, 443; 906 NW2d 482 (2017) (quotation marks and citation omitted).

        At the summary disposition hearing, the plaintiff discussed alternative theories for relief
under the ADA, and for failure to provide the plaintiff assistance in exiting the examination space.
The court rebuffed the latter theory as one that would sound in medical malpractice and queried
the plaintiff about the ADA: “The ADA stuff is not in your complaint, you've never moved to
amend it, correct?”. To which counsel replied, “I have not yet, no. But I mean, at trial I can -- or


                                                 -3-
prior to trial I'll move to amend to, you know, comport with evidence that's been presented in the
record.” The trial court did not err in declining to permit plaintiff to file an amended complaint
because plaintiff did not request one, orally or in writing.

          “Leave to amend the pleadings should be freely granted . . . .” Kimmelman v Heather
Downs Management, Ltd, 278 Mich App 569, 571; 753 NW2d 265 (2008) (citation omitted). See
also MCR 2.118(A)(2). Plaintiff here did not make a written or oral motion requesting leave to
amend. Counsel for plaintiff admitted that he did not file a motion to amend, and stated, “prior to
trial I’ll move to amend to, you know, comport with evidence that’s been presented in the record.”
Plaintiff did not file a motion to amend, or even argue to amend at the hearing—counsel only stated
that he planned to do so in the future. The allegations concerning the ADA and plaintiff’s proposed
expert’s affidavit were not alleged in the complaint. In Kloian, 272 Mich App at 242, this Court
determined that “[b]ecause plaintiff did not seek leave of the court or obtain defendants’ written
consent to amend his complaint as required by MCR 2.118(A)(2), MCR 2.116(I)(5) did not require
the court to sua sponte offer plaintiff an opportunity to amend. Therefore, no plain error occurred.”

        A court may also deny a motion to amend on the basis of undue delay, bad faith, failure to
cure deficiencies, undue prejudice to the opposing party, or futility of the amendment. Diem v
Sallie Mae Home Loans, Inc, 307 Mich App 204, 216; 859 NW2d 238 (2014). While “[d]elay,
alone, does not warrant denial of a motion to amend,” Weymers v Khera, 454 Mich 639, 659; 563
NW2d 647 (1997),

       a trial court may find prejudice when the moving party seeks to add a new claim or
       a new theory of recovery on the basis of the same set of facts, after discovery is
       closed, just before trial, and the opposing party shows that he did not have
       reasonable notice, from any source, that the moving party would rely on the new
       claim or theory at trial. [Id. at 659-660 (footnote omitted)].

In addition, “[i]f a trial court denies a motion to amend, it should specifically state on the record
the reasons for its decision.” Id. at 659.

         Here, plaintiff raised new theories of liability, that defendant violated the ADA and was
liable under ordinary negligence and medical malpractice principles, at the motion hearing, on
January 9, 2019. Discovery in the case had closed in November 2018, and the trial was set for
March 2019. Here, as in Weymers, there was no plain error in the trial court’s finding that
plaintiff’s new theories were “on the same set of facts, after discovery [was] closed, just before
trial[.]” Id. The trial court specifically stated its reasoning for denying plaintiff’s request in its
opinion and order, noting that “plaintiff failed to explain how it would be proper for the court to
allow plaintiff to amend her complaint, which she argued for the first time at oral argument, when
discovery had closed on November 12, 2018, and trial was set to begin on March 18, 2019.” There
was no plain error in the trial court’s decision to deny plaintiff’s request.




                                                 -4-
Affirmed.



                  /s/ Anica Letica
                  /s/ Cynthia Diane Stephens
                  /s/ Colleen A. O’Brien




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