            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


ESTATE OF CHRISTINA RUTH REIKOWSKY,                                  UNPUBLISHED
by GENE A. REIKOWSKY, JR., Personal                                  June 4, 2020
Representative,

               Plaintiff-Appellant,

v                                                                    No. 347427
                                                                     Saginaw Circuit Court
COVENANT MEDICAL CENTER, INC., doing                                 LC No. 17-032117-NO
business as COVENANT HEALTHCARE,

               Defendant-Appellee.


Before: RONAYNE KRAUSE, P.J., and SERVITTO and REDFORD, JJ.

PER CURIAM.

        Plaintiff appeals as of right the trial court’s order granting defendant’s motion for summary
disposition in this premises liability and wrongful-death action. We affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        On July 21, 2015, the decedent was struck by an automatic sliding door while exiting
defendant’s healthcare facility. The decedent broke her hip, for which she underwent surgery, and
also received a laceration to her head. In July 2016, the decedent, who was 88 years of age, passed
away due to cardiorespiratory arrest resulting from congestive heart failure. Plaintiff brought this
wrongful death and premises liability action alleging that the automatic door constituted a
dangerous condition; that defendant had been aware of this for many years leading up to the
accident; and that the decedent’s death was caused by health complications resulting from, or
exacerbated by, the accident.

        Testimony from various door technicians and experts established the following description
of the door in question and its sensor technology. The door appears to have been installed in the
early 1990s, and it contained older sensor technology in the form of an “Eagle” and “Stanguard”
sensor system. The Eagle sensor was a motion detection sensor, and the Stanguard sensor was a
presence detection sensor located above the door. The Eagle sensor would detect a person’s
movement, resulting in the door opening; the Stanguard sensor would prevent the door from


                                                -1-
closing if it detected a person’s presence within the doorway. Once the door began to close, the
Stanguard sensor would turn off, meaning it could no longer detect a person within the doorway.
At the time of the accident, a newer sensor, the “Wizard” sensor, was available. The Wizard would
not turn off when the door began to shut, which meant that it would always monitor a doorway.
The Wizard sensor was in turn replaced by the even newer “Ixio” sensor, which is a combined
motion and detection sensor that has the additional safety feature of keeping the door open in the
event of a malfunction or defect. The older sensors lacked this feature. However, the Eagle,
Stanguard, and Wizard sensors are still widely used today.

        At the time of the accident, defendant’s door contained the older Eagle and Stanguard
sensor systems. Various technicians who serviced the door in the years leading up to the accident
informed defendant on multiple occasions that it should upgrade to the newer sensors. Industry
standards created by the American National Standards Institute (ANSI) recommended that the
newer Wizard and Ixio sensors be used, and defendant was made aware of this by the door
technicians. Plaintiff’s position is that, because the door’s older sensors lacked the safety features
of the newer sensors, this made the door a dangerous condition because it could close on a person,
such as the decedent; moreover, given that defendant was aware of this in the years leading up to
the accident, it had actual notice of the door’s potential issues.1 Critically, however, plaintiff has
provided no evidence that any of the service technicians, or indeed anyone else, ever told defendant
that the door was dangerous. In fact, the technician upon whom plaintiff primarily relies explained
that he was required to sell upgrades, so he simply recommended them as a matter of course; and
if he believed a door was dangerous, he was required to deactivate it.

        Defendant moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that
plaintiff had failed to demonstrate that the door constituted a dangerous condition and/or that
defendant had breached its duty regarding this alleged dangerous condition. Defendant
alternatively argued for partial summary disposition concerning plaintiff’s wrongful death claim,
contending that plaintiff had failed to connect the decedent’s death to the accident from a year
earlier. The trial court agreed with defendant, ruling that defendant was entitled to summary
disposition on liability grounds and, alternatively, that defendant was entitled to partial summary
disposition on the wrongful death claim. This appeal followed.

                                  II. STANDARD OF REVIEW

       We review de novo the trial court’s decision on a motion for summary disposition.
Dextrom v Wexford Co, 287 Mich App 406, 416; 789 NW2d 211 (2010). A motion is properly
granted pursuant to MCR 2.116(C)(10) when “there is no genuine issue with respect to any
material fact and the moving party is entitled to judgment as a matter of law.” Id. at 415. Upon
review, we “must examine the documentary evidence presented and, drawing all reasonable
inferences in favor of the nonmoving party, determine whether a genuine issue of material fact




1
 Plaintiff specifically denies contending that the door was dangerous purely because the door used
older technology, but as we will discuss,the record does not support plaintiff’s contention that
defendant was made aware of any problem with the door other than its use of older technology.


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exists. A question of fact exists when reasonable minds could differ as to the conclusions to be
drawn from the evidence.” Id. at 415-416.

                                    III. PREMISES LIABILITY

        To succeed in a premises liability action, the party “must prove (1) that the defendant owed
a duty to the plaintiff, (2) that the defendant breached the duty, (3) that the defendant’s breach of
the duty caused the plaintiff’s injuries, and (4) that the plaintiff suffered damages.” Kennedy v
Great Atlantic & Pacific Tea Co, 274 Mich App 710, 712; 737 NW2d 179 (2007). “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.’ ” Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 8; 890 NW2d 344
(2016), quoting Hoffner v Lanctoe, 492 Mich 450, 460; 821 NW2d 88 (2012).

        The evidence establishes a question of fact whether defendant was aware that the sensor
equipment installed on its door was no longer state-of-the-art, and that newer sensors had better
safety features. However, the evidence does not establish any question of fact whether defendant
was, or should have been, aware that the door was actually defective or dangerous. Premises are
not per se rendered defective or dangerous simply because some aspect of the site is obsolete and
an upgrade to state-of-the-art technology or design would have made the site safer. Reardon v
Dep’t of Mental Health, 430 Mich 398, 416-417; 424 NW2d 248 (1988); Hickey v Zezulka, 440
Mich 408, 424; 487 NW2d 106 (1992). Thus, we decline to hold that simple noncompliance with
a “best practices” guideline or a mere recommendation from a standards-promulgation
organization such as ANSI is sufficient to communicate the presence of a defect or danger.

       Plaintiff relies on a single, vague, and out-of-context statement by one of the service
technicians for the proposition that defendant knew the door was dangerous. The technician
explained that his employer required him to sell upgrades, so those upgrades were almost always
recommended, but the upgrades were seldom purchased due to their costs. In that context, the
following exchange occurred:

              Q. You’d agree with me, though, that the upgrade provided additional
       technology that the old systems didn’t have. Right?

               A. Correct.

               Q. That’s why they call it an upgrade. Right?

             A. Right. We push the safety fact. You know, you could have a lawsuit.
       Oh, my god, forbid that would happen.

              Q. When you say a safety fact you mean part of the reason they were
       suggesting an upgrade is that the upgraded sensors were safer than the old sensors.

               A. Right. Correct.

The technician also explained that part of his service involved performing tests on the doors, and
if the door was actually unsafe, he was required to shut the door down and turn it off completely.


                                                -3-
He also agreed that a door was not out of compliance just because there was a recommended
upgrade.2

       Thus, the only evidence that defendant was on notice that the doors might be unsafe is a
vague assertion that defendant was informed that the doors could have been made safer. This in
and of itself did nothing to indicate to defendant that the door was a dangerous condition. The
Eagle and Stanguard sensors continue to be widely used. The technicians, although recommending
an upgrade, gave no indication that the door was dangerous or malfunctioning. In fact, several
worksheets explicitly provide that the door was working properly. Moreover, after the accident
occurred, a technician was called out to examine the door. His worksheet provides that the door
was working properly and “met code.” Additionally, plaintiff’s expert appeared to agree that the
newer sensor technology did not necessarily make the older sensor technology defective or
dangerous. Thus, the evidence shows that as far as defendant could have known, the door was old
but was working properly.

        We therefore conclude that, irrespective of whether the door actually was dangerous or
actually did malfunction, the evidence fails to show that defendant was on notice of any such
possible defect or danger. The trial court correctly granted summary disposition in favor of
defendant as to plaintiff’s premises liability claim.

                                     IV. WRONGFUL DEATH

         Plaintiff also appeals the trial court’s dismissal of the wrongful death claim. Plaintiff
argues primarily that the dismissal was procedurally improper, because the issue of dismissing the
wrongful death claim had not yet been properly raised or argued, and in fact the parties had agreed
to adjourn the issue. The trial court dismissed the wrongful death claim because plaintiff presented
no evidence specifically linking the death to the accident. Plaintiff contends that the trial court
erred because a deposition from plaintiff’s treating physician remained pending, and the medical
literature shows that the injuries plaintiff sustained are correlated with an increased mortality rate.
We need not address either argument.

         “Wrongful death” is not a truly independent cause of action, but rather permits another
underlying claim and theory of liability to survive a person’s death. See Ballard v Southwest
Detroit Hosp, 119 Mich App 814, 817-819; 327 NW2d 370 (1982); Hawkins v Regional Medical
Labs, PC, 415 Mich 420, 428-438; 329 NW2d 729 (1982). Because the trial court properly
dismissed plaintiff’s premises liability claim, and plaintiff has not articulated any alternative theory
of liability, plaintiff necessarily cannot maintain a wrongful death claim. If the trial court arrived




2
  Plaintiff argues another technician explained that without the sensor upgrade, a slow-moving
person might be caught by the door closing. However, the technician never said anything about
slow-moving persons. Rather, the technician agreed that the Wizard sensor would make it less
likely for a door to close on somebody. In any event, the technician did not indicate that he
communicated any danger to defendant or any of defendant’s agents.


                                                  -4-
at the right result, we generally need not inquire into whether the trial court did so for the wrong
reasons. Fox v Roethlisberger, 350 Mich 1, 4; 85 NW2d 73 (1957).

       Affirmed.

                                                             /s/ Amy Ronayne Krause
                                                             /s/ Deborah A. Servitto
                                                             /s/ James Robert Redford




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