             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



BETTY BILLINGTON,                                                      UNPUBLISHED
                                                                       September 10, 2019
                Plaintiff-Appellant,

v                                                                      No. 344661
                                                                       Oakland Circuit Court
LAUREL WOOD APARTMENT NORTH,                                           LC No. 2017-156885-NO
LAUREL WOOD APARTMENT SOUTH,
LAUREL APARTMENT COMPANY, and
MICHIGAN REAL ESTATE PROPERTY
CORPORATION,

                Defendants-Appellees.


Before: JANSEN, P.J., and CAMERON and TUKEL, JJ.

PER CURIAM.

       Plaintiff appeals as of right the order denying plaintiff’s motion for summary disposition
brought under MCR 2.116(C)(9), and granting summary disposition in favor of defendants under
MCR 2.116(C)(10). We affirm.

         I. RELEVANT FACTUAL BACKGROUND AND PROCEDURAL HISTORY

       This premises liability action arises out of injuries sustained by plaintiff on November 1,
2015, while attending a social gathering at the Laurel Woods Apartments (Laurel Woods)
located in Southfield, Michigan. Defendants own, operate, and maintain the apartment complex.
Glenn and Roxie Hare hosted the social gathering, which took place in the Laurel Woods
clubhouse. The clubhouse is available for rent to tenants of Laurel Woods. The Hares are not
tenants of Laurel Woods. However, their friends, Sheldon and Laura Springfield, are tenants,
and leased the complex’s clubhouse on behalf of the Hares.

        Anyone who rents the clubhouse is responsible for setting up tables and chairs, which are
provided by defendants and kept in a storage room. Defendants provide metal folding chairs and
white resin chairs. Usually, the white resin chairs are used at the pool and brought inside when
the pool closes for the season. Here, the Hares set up for the gathering, and placed the white
resin chairs at the tables instead of the metal folding chairs. Shortly after her arrival, plaintiff got


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a plate of food and went to sit down to eat at a table. Plaintiff was uncomfortable sitting in a
white resin chair, and decided to get up to move to a couch. However, when plaintiff put her
arms on the armrest of the white resin chair and began to stand up, one of the chair’s legs gave
way and plaintiff fell.

        Plaintiff filed a three-count complaint alleging negligence, gross negligence, and breach
of implied warranty. Following oral and written discovery, and a failed facilitation, the parties
filed cross-motions for summary disposition. Plaintiff moved for summary disposition under
MCR 2.116(C)(9), arguing that defendants failed to present any valid affirmative defenses, and
accordingly, they have no valid defense to liability. Defendants breached their duty to plaintiff,
an invitee, by failing to properly inspect the chairs and failing to remove the defective chair from
the premises so it could not be used by any clubhouse guests. Accordingly, plaintiff argued, she
was entitled to summary disposition in her favor.

        Defendants moved for summary disposition under MCR 2.116(C)(10), arguing that
plaintiff was unable to provide any evidence that the chair was defective, and likewise there was
no evidence that defendants had notice of any defective condition. Therefore, plaintiff cannot
establish that defendants breached any duty owed to plaintiff as an invitee, and therefore her
claims must fail.

        Following a hearing on the parties’ motions, at which the parties argued consistent with
their briefs, the trial court issued a written opinion and order denying plaintiff’s motion for
summary disposition, and granting summary disposition in favor of defendant. Specifically, the
trial court concluded,

       The Court finds that under the facts presented [d]efendants are entitled to
       summary disposition. Plaintiff has failed to produce any evidence that the chair
       was defective or in disrepair. The renters of the clubhouse and the hosts of the
       event testified that they did not notice any defective furniture when they toured
       the clubhouse or when they set up the furniture. Plaintiff did not see any defect in
       the chair before she sat down or while she was sitting in it. Under Michigan law,
       the occurrence of an accident is not, by itself, evidence of a [d]efendant’s
       negligence. In addition, there is no evidence that [d]efendants had any notice of
       any defective chair. In the absence of active negligence, the premises owner is
       only liable for conditions of which it had notice, in that they knew or should have
       known of the dangerous condition. There is no evidence [d]efendants received
       complaints about the chair before the incident and the evidence submitted shows
       that any alleged defect in the chair was not apparent upon cursory inspection.
       Plaintiff has failed to provide evidence of actual notice or constructive notice.

This appeal followed.

                                  II. STANDARD OF REVIEW

       We review the trial court’s decision on a motion for summary disposition de novo.
Sabbagh v Hamilton Psychological Services, PLC, ___ Mich App ___, ___; ___ NW2d ___
(2019) (Docket No. 343204); slip op at 4. Summary disposition is appropriate under MCR

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2.116(C)(9) when “ ‘[t]he opposing party has failed to state a valid defense to the claim asserted
against him or her.’ A motion under this subrule tests the sufficiency of a defendant’s pleadings
by accepting all well-pleaded allegations as true. If the defenses are so clearly untenable as a
matter of law that no factual development could possibly deny plaintiff’s right to recovery, then
summary disposition under this rule is proper.” Taxpayers for Michigan Constitutional
Government v Dep’t of Technology, Management and Budget, ___ Mich App ___, ___; ___
NW2d ___ (2019) (Docket No. 334663); slip op at 4, citing Lepp v Cheboygan Area Schools,
190 Mich App 726, 730; 476 NW2d 506 (1991).

        Summary disposition under MCR 2.116(C)(10) is appropriate where “there is no genuine
issue as to any material fact, and the moving party is entitled to judgment or partial judgment as
a matter of law. A genuine issue of material fact exists when the record, giving the benefit of
reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might
differ.” George v Allstate Ins Co, ___ Mich App ___, ___; ___ NW2d ___ (2019) (Docket No.
341876); slip op at 5 (quotation marks and citations omitted). When reviewing a summary
disposition motion brought under MCR 2.116(C)(10), the “trial court must consider the
pleadings, affidavits, depositions, admissions and other documentary evidence submitted in the
light most favorable to the nonmoving party.” Id.; slip op at 5. Reasonable inferences are drawn
in favor of the nonmoving party. Id.; slip op at 5.

                                         III. ANALYSIS

                                  A. CLOSE OF DISCOVERY

       Plaintiff first argues that the trial court prematurely granted summary disposition to
defendants where discovery was not yet complete. We disagree.

       “A motion under MCR 2.116(C)(10) is generally premature if discovery has not been
completed unless there is no fair likelihood that further discovery will yield support for the
nonmoving party’s position.” Liparoto Const, Inc v Gen. Shale Brick, Inc, 284 Mich App 25,
33-34; 772 NW2d 801 (2009). A party who opposes a motion brought under MCR 2.116(C)(10)
on the grounds that discovery is incomplete must assert that a factual dispute exists, and provide
independent evidence to support such an allegation. Bellows v Del. McDonald’s Corp, 206 Mich
App 555, 561; 522 NW2d 707 (1994).

        Here, the trial court had entered a scheduling order, which provided that the discovery
period would close on June 1, 2018. Defendants filed their motion for summary disposition on
March 21, 2018, well before the close of discovery, and while some discovery requests from
plaintiff were outstanding. Plaintiff’s position, that defendants breached a duty owed to her, is
premised on her belief that defendants had constructive notice of a defect in the chair that broke,
causing her to fall and be injured. However, plaintiff failed to present any evidence that a defect
in the chair was discoverable prior to her fall. At the time that defendants filed their motion, the
majority of written and oral discovery had been completed, and no witness had testified in
plaintiff’s favor regarding notice of any defect in the chair. Although some discovery was
outstanding, nothing plaintiff had requested (where the chair was purchased, who manufactured
the chair, how much defendants paid for the chair) would have provided further factual support


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for her position. Therefore, summary disposition was not premature. Peterson Novelties, Inc v
Berkley, 259 Mich App 1, 25; 672 NW2d 351 (2003).

                           B. FAILURE TO PRESERVE EVIDENCE

       Second, plaintiff argues that the trial court erroneously granted summary disposition
where defendants failed to preserve the broken chair central to her case, and accordingly this
Court should remand this matter back to the trial court to determine an appropriate spoliation
sanction. We disagree.

         “Even when an action has not been commenced and there is only a potential for litigation,
the litigant is under a duty to preserve evidence that it knows or reasonably should know is
relevant to the action.” Brenner v Kolk, 226 Mich App 149, 162; 573 NW2d 65 (1997) (citation
omitted). “A trial court has the authority, derived from its inherent powers, to sanction a party
for failing to preserve evidence that it knows or should know is relevant before litigation is
commenced.” Bloemendaal v Town & Country Sports Ctr, Inc., 255 Mich App 207, 211; 659
NW2d 684 (2002).

         Here, it is undisputed that defendants failed to preserve the broken chair. True,
defendants were aware that the chair had broken and a clubhouse guest had fallen as a result.
Both Roxie Hare and Laura Springfield called defendants to inform them that someone had
fallen during the November 1, 2015 event, and that a chair had broken. However, defendants
never heard directly from plaintiff regarding the broken chair, or her injuries, until many months
later. Therefore, we cannot conclude that defendants should have reasonably anticipated
litigation stemming from plaintiff’s fall.

        Moreover, although plaintiff claims she was prejudiced by defendants’ failure to preserve
the chair because she was unable to respond to defendants’ “assertion that the chair was not
defective or in disrepair,” plaintiff or her husband took photos of the broken chair
contemporaneously to her fall. Plaintiff fails to explain how the actual chair, and not just the
photos, are required to dispute defendants’ claim that it did not have actual or constructive notice
of a defect in the chair. Finally, as discussed infra, plaintiff has not presented any evidence that
the actual chair, or the photos of the chair, would be sufficient to establish that defendant had
notice of a defect in the chair in order to impose liability.

                  C. ACTUAL OR CONSTRUCTIVE NOTICE OF DEFECT

       Finally, plaintiff argues that a genuine issue of material fact regarding whether
defendants had actual or constructive notice of a defect in the chair exists, and therefore
summary disposition in favor of defendant was erroneous. Again, we disagree.

        “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.” Estate of
Trueblood v P&G Apartments, LLC, ___ Mich App ___, ___; ___ NW2d ___ (2019) (Docket
No. 340642); slip op at 4-5 (quotation marks and citation omitted). Here, plaintiff was an
invitee. “[A] premises possessor owes a duty to an invitee to exercise reasonable care to protect

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the invitee from an unreasonable risk of harm caused by a dangerous condition on the land.”
Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). A possessor of land is
subject to liability for harm to an invitee for injuries caused by a condition of the land:

       if, and only if, all of the following are true: the possessor (a) knows, or by the
       existence of reasonable care would discover, the condition, and should realize that
       it involves an unreasonable risk of harm to such invitees, (b) should expect that
       they will not discover or realize the danger, or will fail to protect themselves
       against it, and (c) fails to exercise reasonable care to protect them against the
       danger. [Prebenda v Tartaglia, 245 Mich App 168, 169; 627 NW2d 610 (2001).]

        Plaintiff admits in her brief on appeal “there is no evidence that [d]efendants had actual
notice of the defective or damaged condition of the chair prior to her fall.” However, plaintiff
maintains that there is a genuine issue of material fact as to whether defendants had constructive
notice of the damaged or defective chair such that defendants breached their duty to plaintiff.

       A landowner has constructive notice of a defect if the condition “has existed a sufficient
length of time,” and the defect was discoverable. Banks v Exxon Mobil Corp, 477 Mich 983,
983-984; 725 NW2d 455 (2007). Plaintiff argues that because defendants’ agent

       testified he inspects the furniture before and after every event at the clubhouse
       and that the last time the white chairs were inspected was the fall of 2015 when
       they were removed from the pool area for storage, it can be inferred that there
       were no other events that occurred at the clubhouse between the time the chairs
       were stored and the time of [p]laintiff’s injury.

Accordingly, plaintiff argues that it should be assumed that the chair was defective or damaged
at the time of her injury.

        Although plaintiff may be able to establish that any defect had existed for “a sufficient
length of time,” plaintiff fails to present any evidence that the defect was discoverable. There is
no evidence that anyone observed a defect while touring the clubhouse, while setting up the
event, or immediately before plaintiff sat in the chair. Moreover, defendants cannot be liable
simply because the chair broke. “The mere occurrence of an accident is not, in and of itself,
evidence of negligence.” Clark v Kmart Corp, 242 Mich App 137, 140; 617 NW2d 729 (2000),
rev’d on other grounds by 465 Mich 416; 634 NW2d 347 (2001). Plaintiff has the burden of
establishing a prima facie case of negligence, and must do so either directly or circumstantially.
Id. at 140. Plaintiff has failed to do so here, and therefore the trial court properly granted
summary disposition in favor of defendants.

       Affirmed.

                                                            /s/ Kathleen Jansen
                                                            /s/ Thomas C. Cameron
                                                            /s/ Jonathan Tukel




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