                          STATE OF MICHIGAN

                           COURT OF APPEALS



STEVEN THOMPSON,                                                    UNPUBLISHED
                                                                    August 8, 2017
              Plaintiff-Appellant,

v                                                                   No. 333755
                                                                    Livingston Circuit Court
ANN GIBSON,                                                         LC No. 15-028662-NO

              Defendant-Appellee.


Before: CAVANAGH, P.J., and METER and M. J. KELLY, JJ.

PER CURIAM.

        Plaintiff, Steven Thompson, appeals by right the trial court’s order granting summary
disposition under MCR 2.116(C)(10) in favor of defendant, Ann Gibson. We affirm the court’s
grant of summary disposition on Thompson’s nuisance claim, but because there is a genuine
issue of material fact on Thompson’s premises liability claim, we reverse and remand for further
proceedings with regard to that claim.

                                       I. BASIC FACTS

        Thompson was injured while sweeping the back deck of a house in Howell, Michigan,
that he was renting from Gibson. The accident occurred on July 8, 2014. Thompson explained:

       [W]hen I got to the railing that surrounds the deck I pushed as much of the swept
       up debris underneath the railing. I put my left hand on the top part of the railing,
       leaned over to brush off the edge of the debris I had swept under, and the rail just
       very freely gave. To prevent myself from falling while balancing—I was a
       hairline from going over. I was—I thought I was going for sure. And I had a
       broom out in my right hand and I’m about to take this six foot section of rail over.
       So I start to try and correct myself back into the original position, struggling. And
       by the time I did get it back into the original position I heard something kind of
       pop or rip in my arm and immediate pain.

After the accident, Thompson went to the hospital and was diagnosed with a detached triceps
tendon and had to undergo surgery.




                                               -1-
        Thompson explained that the only entry into the house’s fenced backyard was via the
deck. Both Thompson and his wife testified that they would use the deck for ingress and egress
to the backyard. Further, Thompson’s wife stated that when she used the deck to walk into the
backyard she could not see the railing in her peripheral vision. She also explained that although
there was a table on the deck, she only sat by it about three or four times, and it was not in the
“isolated” corner where the accident occurred. She asserted that nobody spent time “back there.”
For his part, Thompson testified that he sat on the deck, but that he would not say he did so a lot.
Thompson and his wife denied knowing about the defect before the accident or providing notice
to Gibson that the railing was defective. Thomson also explained that before the accident he
never thought the railing was dangerous because he thought it was securely affixed.

        Thompson filed suit against Gibson on August 4, 2015, alleging one count of negligence
and one count of nuisance. He asserted that Gibson was negligent by failing to maintain the
premises in a reasonably safe condition, by failing to adequately inspect the premises for
hazards, by violating MCL 125.401 by failing to keep the premises and all its parts in good
repair, and by failing to warn him about the improperly secured railing. He also asserted that
Gibson’s operation and maintenance of the premises “constituted a nuisance” because it
contained an improperly secured hand rail that posed a hazard of extensive injury to Thompson
and others.

       On March 8, 2016, Gibson filed a motion for summary disposition under MCR
2.116(C)(8) and (C)(10). She argued that she was entitled to summary disposition on the
negligence claim because she lacked knowledge of any existing defects and because the danger
was open and obvious. Further, she asserted that she was entitled to summary disposition on the
nuisance claim because she did not have control of the property. The trial court agreed and
granted summary disposition in her favor.

                                 II. SUMMARY DISPOSITION

                                 A. STANDARD OF REVIEW

        Thompson argues that the trial court erred in granting summary disposition of his claims
for negligence and nuisance. We review de novo challenges to a trial court’s decision on
summary disposition. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich
App 362, 369; 775 NW2d 618 (2009). In reviewing a motion for summary disposition under
MCR 2.116(C)(10), a court considers “affidavits, pleadings, depositions, admissions, and other
documentary evidence submitted by the parties in the light most favorable to the party opposing
the motion.” Greene v A P Prods, Ltd, 475 Mich 502, 507; 717 NW2d 855 (2006) (citations and
quotation marks omitted). A motion under MCR 2.116(C)(10) “tests the factual support for a
claim and should be granted if there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law.” MEEMIC Ins Co v DTE Energy Co, 292 Mich
App 278, 280; 807 NW2d 407 (2011). A genuine issue of material fact exists if the record,
viewed in a light most favorable to the nonmoving party, establishes a matter in which
reasonable minds could differ. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d




                                                -2-
8 (2008). Further, the court “may not resolve factual disputes or determine credibility in a ruling
on a summary disposition motion.” Burkhardt v Bailey, 260 Mich App 636, 646-647; 680
NW2d 453 (2004).1

                                         B. ANALYSIS

         “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.” Benton v Dart
Props, Inc, 270 Mich App 437, 440; 715 NW2d 335 (2006). A landowner’s duty with respect to
the conditions of the premises depends on the status of the person entering the land, i.e., whether
the individual is an invitee, licensee, or trespasser. James v Alberts, 464 Mich 12, 19; 626 NW2d
158 (2001). It is undisputed that Thompson was an invitee, which means that he was entitled to
the highest level of protection under the law. See Id. at 19-20.

        A landowner has a duty of care to warn his or her invitees of any known dangers and to
make the premises safe. Id. In order to make the premises safe, the landowner must inspect the
premises and, depending upon the circumstances, make any necessary repairs or warn of any
discovered hazards. Id. at 20. “The duty to inspect one’s premises to ensure that the premises
are safe for invitees is inextricably linked to the concept of constructive notice.” Grandberry-
Lovette v Garascia, 303 Mich App 566, 573; 844 NW2d 178 (2014), abrogated on other grounds
Lowrey v LMPS &LMPJ, Inc, 500 Mich 1, 10 n 1; 890 NW2d 344 (2016). Even in the absence


1
  In this case, the trial judge, a district court judge sitting by assignment on the circuit court,
improperly made a credibility determination against Thompson. The judge recounted that on
July 2, 2014, she was told by Thompson’s lawyer that Thompson was “going on vacation” until
July 9, 2014 and “couldn’t be here on the 7th,” so she adjourned the eviction hearing to July 21,
2014. Although the eviction proceeding was unrelated to the instant case, the trial judge began
the oral argument on the motion for summary disposition by stating that she had questions about
Thompson’s credibility given that he had “lied to [her]” during the district court proceedings.
She stated:

       The hearing was on 7/7. The accident that’s alleged to have happened [took
       place] on 7/8. Well, they weren’t on vacation. But one way or the other, they
       were asking for an adjournment, claiming that they were on vacation. We took
       them at their word and we granted it. Well, vacation and the inability to be here
       would pre-suppose that they had to go somewhere, that they couldn’t be here on
       the 7th. So they lied.

The judge added that she felt Thompson was “just trying to avoid being evicted.” Although, on
reconsideration, the judge stated that she did not make a credibility determination against
Thompson, we find that unlikely given her earlier statements. On remand, the trial judge shall
refrain from making any credibility determinations when ruling on a summary disposition
motion.



                                                -3-
of actual knowledge of a dangerous condition, “Michigan courts have long recognized that the
law will impute knowledge of the dangerous condition” to the landowner if he or she “should
have discovered the dangerous condition in the exercise of reasonable care.” Id. Therefore,
“[w]hen a premises possessor fails to inspect his or her property, or conducts an inadequate
inspection, the law will impute knowledge of the dangerous condition to the premises possessor
if the dangerous condition is of such a character or has existed for a sufficient time that a
reasonable premises possessor would have discovered it.” Id. at 575. Constructive notice can
arise from both the passage of time, from the type of condition involved, or from a combination
of both. See Kroll v Katz, 374 Mich 364, 371-373; 132 NW2d 27 (1965).

       A premises possessor’s duty to inspect is not limited to a casual inspection. Grandberry-
Lovette, 303 Mich App at 557.2

       As our Supreme Court has explained, a premises possessor has a duty “to be
       reasonably sure” that he or she “is not inviting” his or her invitees “into danger,
       and to that end he [or she] must exercise ordinary care and prudence to render the
       premises reasonably safe for the visit.” Torma v Montgomery Ward & Co, 336
       Mich 468, 476-477; 58 NW2d 149 (1953) (quotation marks and citations
       omitted). A premises possessor must take “reasonable care to know the actual
       conditions of the premises. . . .” Kroll v Katz, 374 Mich 364, 373; 132 NW2d 27
       (1965) (quotation marks and citation omitted); see also Conerly v Liptzen, 41
       Mich App 238, 241; 199 NW2d 833 (1972) (stating that a premises possessor has
       a duty to “inspect the premises to discover possible dangerous conditions of
       which he does not know”) (quotation marks and citation omitted). The duty to
       take reasonable care to know the actual condition of the premises requires the
       premises possessor to undertake the type of inspection that a “reasonably prudent”
       premises possessor would exercise under similar circumstances to protect his or
       her invitees. See Keech v Clements, 303 Mich 69, 73; 5 NW2d 570 (1942);
       Oppenheim v Pitcairn, 293 Mich 475, 477-478; 292 NW 374 (1940) (stating that
       negligence may arise from the premises possessor’s “faulty supervision over the
       premises” such as where a dangerous condition existed for sufficient time “that
       knowledge of the menace should have come to the reasonably prudent
       incumbent”); Hall v Murdock, 119 Mich 389, 394; 78 NW 329 (1899) (stating


2
  We note that it has long been held that a premises possessor owes no duty under the open and
obvious doctrine if the unsafe condition can be observed by an average user with ordinary
intelligence upon casual inspection. Novotney v Burger King Corp (On Remand), 198 Mich App
470, 474-475; 499 NW2d 379 (1993). However, the duty imposed on invitees to casually
observe open and obvious dangers is a duty that applies to invitees (or licenses or trespassers)
with regard to whether liability is cut off under the open and obvious doctrine. It is not a duty
imposed on a premises possessor in relation to his or her duty to inspect his or her property for
dangerous conditions. Rather, a premises possessor’s duty to inspect may, at times be satisfied
by a casual inspection, but at other times it may require a more thorough inspection. The type of
inspection required is generally a jury question. See generally Kroll, 374 Mich at 371-373.



                                               -4-
       that the trial court erred by instructing the jury that the owner had a duty to test
       the strength of the elevator’s cable from “time to time”—as opposed to
       “inspection and examination”—because there was no evidence that “such or any
       other kinds of tests of the strength of elevator cables are common”); see also 2
       Restatement Torts, 2d, § 343, comment e, p 217 (noting that the extent of
       preparation that the premises possessor must make depends on the nature of the
       land and the purposes for which it is used). Moreover, whether the premises
       possessor should have discovered the dangerous condition with a proper
       inspection will often be a question of fact for the jury. Kroll, 374 Mich at 371-
       372; Torma, 336 Mich at 477; see also Moning v Alfono, 400 Mich 425, 438; 254
       NW2d 759 (1977) (stating that whether a defendant’s conduct in the particular
       case fell below the general standard of care will generally be a question of fact for
       the jury). Consequently, for purposes of summary disposition, a premises
       possessor cannot invariably establish that he or she did not have constructive
       notice of a dangerous condition by showing that the dangerous condition would
       not have been discovered during a casual inspection . . . . Kroll, 374 Mich at 373
       (stating that there is no liability for a dangerous condition about which a premises
       possessor did not know “and could not have discovered with reasonable care”)
       (quotation marks and citation omitted). Accordingly, if under the totality of the
       circumstances a reasonably prudent premises possessor would have employed a
       more vigorous inspection regime that would have revealed the dangerous
       condition, the fact that the condition was not observable on casual inspection
       would not preclude a jury from finding that the premises possessor should have
       discovered the hazard in the exercise of reasonable care notwithstanding its latent
       character. [Id. at 577-579 (footnotes omitted).]

        Based on the documentary evidence submitted on summary disposition, it is unrefuted
that before Thompson’s accident, Gibson did not actually know that there was a defect with the
railing on the deck, nor was she notified about a defect by the prior tenants or by Thompson and
his wife. Gibson stated that from 2005 until 2012, she used the deck on a regular basis to
entertain guests and for ingress and egress from the back yard, and her husband and a friend both
provided affidavits indicating that they had also used the deck and did not see any problems with
it. Based on this evidence, it is apparent that, at best, Gibson only conducted a casual inspection
of the deck before renting it to the Thompsons.

       A landowner, however, “cannot avoid liability for the harms caused by a dangerous
condition on his or her property by claiming ignorance of its existence if in the exercise of
reasonable care the premises possessor should have discovered it.” Id. at 575. And “whether the
premises possessor should have discovered the dangerous condition with a proper inspection will
often be a question of fact for the jury.” Id. at 579. Here, with regard to the condition of the
deck, both Gibson and Thompson presented testimony that it had deteriorated over time.3

3
  There are no allegations or facts suggesting that the unsafe condition was caused by either the
parties or an unnamed third party. Thus, viewed in the light most favorable to Thompson, it is
reasonable to conclude that the condition developed naturally over time.


                                                -5-
Gibson explained that she lived in the house from 2005 until 2012, when she relocated to
Tennessee for work. She stated that the deck where Thompson was injured was the same deck
that came with the house when she purchased it in 2005. While she lived there, she had to
replace a decorative spindle in another area of the deck. But she did not have to conduct any
other repairs, besides the replacement of a warped board that was “remote” from the spot where
Thompson was injured. In an affidavit,4 Thompson stated that the railing, which was made of
wood, was completely detached from the post, had no visible nails, and had a hole where it
appeared a nail had once been.5

        Thus, viewing the evidence in the light most favorable to Thompson, it is reasonable to
infer that the railing had deteriorated over time as evidenced by the missing nail and the lack of
maintenance between 2005 and 2014. Further, the unsafe condition at issue was a structural
defect with a safety feature of the home. It was not a transient hazard, such as a snow, ice, or
debris that could accumulate on a surface within a short period of time. Accordingly, on the
record before us, it is reasonable to conclude that the unsafe condition developed over time and
was of such a character that, with the exercise of reasonable care, Gibson should have known
about it. Because there was a genuine issue of material fact regarding whether Gibson should
have had notice of the unsafe condition, the trial court erred in granting summary disposition on
Thompson’s negligence claim.6

       The trial court did not, however, err in granting summary disposition on Thompson’s
nuisance claim. In her motion, Gibson asserted that summary disposition was appropriate
because she lacked control of the property and because Thompson had a responsibility to keep



4
  On appeal, Gibson argues that this Court cannot consider Thompson’s affidavit because it is not
signed, dated, or notarized. While it is true that the affidavit attached to Thompson’s brief on
appeal, is deficient, the copy of the affidavit attached to Thompson’s response to the motion for
summary disposition is signed, dated, and notarized. Therefore, we can and must consider the
affidavit. However, contrary to Thompson’s assertions on appeal, the affidavit in the lower court
record does not contain any reference to the nails in the railing rusting away. That portion of the
affidavit was crossed out and replaced with a handwritten sentence stating that “There was a hole
in the wood where it appeared a nail once was.” Because we are bound to evaluate the facts as
they were presented to the lower court, we will consider Thompson’s affidavit as it was
presented to the lower court and will not consider the version attached to Thompson’s brief on
appeal.
5
  Thompson testified that the railing “gave very freely” when he leaned against it. He also stated
that he did not realize the railing was unanchored and that it “moved instantly.” Photographs
attached to Gibson’s motion for summary disposition further show that the railing was
unattached; two photographs show a slanted gap between where the railing and the post meet and
another two photographs show the railing pushed completely off the post, leaving what appears
to be a large scrape in the paint on the post.
6
 The trial court found that the condition was not open and obvious. That decision has not been
challenged on appeal, so we will not address it further.


                                                -6-
the property in good repair. In support, she relied on our Supreme Court’s decision in Sholberg v
Truman, 496 Mich 1; 852 NW2d 89 (2014). In Sholberg, our Supreme Court held that mere
ownership of property, in the absence of possession or control of the property, was insufficient to
maintain a claim of nuisance against a lessor. Id. at 7, 17. Here, Gibson presented evidence that
she lacked possession or control over the premises on the date of the accident, and Thompson
offered no evidence in rebuttal. Therefore, because Gibson neither controlled nor possessed the
property at the time of the accident, there is no basis on which to impose tort liability on her for a
nuisance. See id. at15.

       Affirmed in part and reversed in part and remanded for further proceedings consistent
with this opinion. We do not retain jurisdiction. Neither party having prevailed in full, we
award no taxable costs under MCR 7.219(A).

                                                              /s/ Mark J. Cavanagh
                                                              /s/ Patrick M. Meter
                                                              /s/ Michael J. Kelly




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