            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



MARTIN SHORTER,                                                    UNPUBLISHED
                                                                   November 21, 2019
               Plaintiff-Appellant,

v                                                                  No. 342982
                                                                   Wayne Circuit Court
PALMER PARK ASSOCIATES, LLC, doing                                 LC No. 17-000731-NO
business as PARKWAY APARTMENTS,

               Defendant,

and

SILVERSIDE MANAGEMENT, LLC,

               Defendant-Appellee.


Before: CAMERON, P.J., and CAVANAGH and SHAPIRO, JJ.

PER CURIAM.

        Plaintiff, Martin Shorter, appeals the trial court’s order granting summary disposition in
favor of defendant, Silverside Management, LLC, pursuant to MCR 2.116(C)(10) (no genuine
issue of material fact). We reverse and remand for proceedings consistent with this opinion.

               I. RELEVANT FACTS AND PROCEDURAL BACKGROUND

        This case arises out of injuries Shorter sustained while visiting Parkway Apartments, an
apartment building managed by Silverside Management. At some time between midnight on
March 12, 2014, and 1:00 a.m. on March 13, 2014, Shorter was escorting his fiancée’s mother,
Barbara MaGee, into the Parkway Apartment building where she lived as a tenant. Shorter and
MaGee entered the Parkway Apartment building through the front door, which opened without
issue. After Shorter opened the door, however, it became lodged open and remained in an open
position throughout the time that Shorter was in the building escorting MaGee to her apartment.
As Shorter was leaving the Parkway Apartment building, he stopped in the threshold of the front
door in order to respond to MaGee, who had thanked him and wished him goodnight. As Shorter



                                               -1-
was exiting the threshold, the door closed abruptly and struck him in the back. The force created
by the closing of the door caused him to fall and land on his neck. Shorter’s fiancée at the time,
Mareatha Price, witnessed Shorter’s fall, helped him stand up, and drove him home. The next
day, Shorter went to the hospital to seek medical attention for his injuries. He subsequently filed
a premises liability action.

        At the close of discovery, Silverside Management filed a motion for summary
disposition. In relevant part, Silverside Management argued that Shorter could not present
evidence to support that Silverside Management had actual or constructive notice of the
allegedly defective front door of the Parkway Apartment building. Shorter opposed the motion,
arguing that a question of fact remained as to whether Silverside Management had notice of the
defect in question. To support this argument, Shorter produced the affidavits of MaGee and
Price. Following oral arguments, the trial court granted Silverside Management’s motion for
summary disposition, in relevant part, based on a finding that Shorter failed to create a genuine
issue of material fact that Silverside Management had actual or constructive notice of the alleged
defect.1 Shorter filed a timely motion for reconsideration from that decision, which the trial
court denied. This appeal followed.2

                                         II. ANALYSIS

        On appeal, Shorter argues that the trial court improperly granted Silverside
Management’s motion for summary disposition because the evidence presented was sufficient to
establish a genuine issue of material fact as to whether Silverside Management had constructive
notice of the defective front door in the Parkway Apartment building. We agree.




1
  The trial court also dismissed Shorter’s general negligence claim pursuant to MCR 2.116(C)(8)
(failure to state a claim) based on a finding that the claim sounded in premises liability. Shorter
does not challenge that decision on appeal.
2
  Silverside Management contends that this Court lacks jurisdiction to hear this appeal because
the orders from which Shorter appeals are not final orders as defined by MCR 7.202(6)(a). This
argument is based on assertions that Shorter’s claim against Palmer Park Associates, LLC, had
not been resolved at the time the orders granting Silverside Management’s motion for summary
disposition and denying Shorter’s motion for reconsideration were entered. We conclude that
Silverside Management’s argument is without legal merit because, at the time the trial court
entered the order granting Silverside Management’s motion for summary disposition, Palmer
Park had been deemed dismissed from the case for lack of service of process. See MCR
2.102(E); Peterson v Auto Owners Ins Co, 274 Mich App 407, 413; 733 NW2d 413 (2007).
Accordingly, the order granting summary disposition in favor of Silverside Management
resolved all of the pending claims and constituted a final order. See MCR 7.202(6)(a)(i). After
Shorter’s motion for reconsideration was denied by the trial court, Shorter filed a timely claim of
appeal. See MCR 7.104(A)(2). Consequently, Silverside Management’s argument that we lack
jurisdiction over the instant appeal is without merit.


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        “This court reviews de novo a trial court’s decision on a motion for summary
disposition.” Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d
223 (2013). A summary disposition motion filed under MCR 2.116(C)(10) “tests the factual
adequacy of a complaint on the basis of the entire record, including affidavits, depositions,
admissions, or other documentary evidence.” Id. “Summary disposition may be granted under
MCR 2.116(C)(10) when there is no genuine issue regarding any material fact and the moving
party is entitled to judgment as a matter of law.” Bullard v Oakwood Annapolis Hosp, 308 Mich
App 403, 408; 864 NW2d 591 (2014) (quotation marks and citation omitted). “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.” Gorman, 302 Mich App
at 116 (quotation marks and citation omitted).

        “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). The duty owed to a plaintiff
depends on the plaintiff’s status on the land. Stitt v Holland Abundant Life Fellowship, 462 Mich
591, 596; 614 NW2d 88 (2000). The determination of the status of the visitor depends primarily
on the purpose of the premises possessor in inviting the visitor onto the premises. Kosmalski v St
John’s Lutheran Church, 261 Mich App 56, 60-61; 680 NW2d 50 (2004). In this case, there is
no dispute that Shorter was an invitee while he was at Parkway Apartments.

        The duty owed by the premises possessor to an invitee is the exercise of reasonable care
to warn or protect an invitee from an unreasonable risk of harm caused by a dangerous condition
on the land. Lugo v Ameritech, 464 Mich 512, 516; 629 NW2d 384 (2001). That duty of care is
breached when the premises possessor “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) (quotation marks and citation omitted). The premises possessor must have had either
actual or constructive notice of the condition at issue. Id. at 10. To be entitled to summary
disposition, the premises possessor need not go beyond showing the insufficiency of the
plaintiff’s evidence and the premises possessor is not required “to present evidence of a routine
or reasonable inspection . . . to prove a . . . lack of constructive notice of a dangerous condition
on [the] property.” Id. (emphasis added). Thus, a defendant can prevail on a motion for
summary disposition if the plaintiff fails to present sufficient evidence of notice. Id.

        In this case, Shorter does not assert on appeal that Silverside Management had actual
notice of the alleged defect. Rather, Shorter claims that the nature of the defect was such that
Silverside Management should be deemed to have had constructive knowledge of the defect. A
premises possessor’s constructive notice of a defective condition on the land may be found
where that condition “is of such a character or has existed ‘a sufficient length of time that he
should have knowledge of it.’ ” Id. at 10, quoting Carpenter v Herpolsheimer’s Co, 278 Mich
697, 698; 271 NW 575 (1937). Thus, “[c]onstructive notice may arise not only from the passage
of time itself, but also from the type of condition involved, or from a combination of the two
elements.” Banks v Exxon Mobil Corp, 477 Mich 983, 983; 725 NW2d 455 (2007). “Generally,
the question of whether a defect has existed a sufficient length of time and under circumstances


                                                -3-
that the defendant is deemed to have notice is a question of fact, and not a question of law.” Id.
at 984.

        We conclude that Shorter has offered sufficient evidence to create a genuine issue of
material fact as to whether Silverside Management had constructive notice of the condition of the
front door at Parkway Apartments which caused his injuries. The door at issue in this case was
made of metal or steel. MaGee’s affidavit supports that, when she became a tenant of Parkway
Apartments in 2009, she noted that the door in question was difficult to open, and that it closed
with a great amount of force and pressure. The force created by the closing of the door was so
great that, after MaGee moved into a unit that was in close proximity to the door, she could hear
“the loud banging and thud of the door opening and closing whenever a tenant or guest” exited
or entered the building from the front door. At one point, MaGee was knocked onto the
walkway outside of the threshold after being struck by the door. According to MaGee’s
affidavit, she is aware of other residents who were struck by the front door, including one tenant
who had his or her hand “smashed” by the door. Price’s affidavit supports that, as a frequent
visitor at Parkway Apartments between 2009 and 2014, she often heard a “loud thundering slam”
and experienced the walls vibrate when the front door closed. There were also numerous marks,
scratches, and chips on the door, which appeared to be caused by the door striking other objects.
Importantly, Silverside Management does not dispute that the door described in Price and
MaGee’s affidavits was the same door that caused Shorter’s injuries in March 2014. Based on
this evidence, we conclude that Shorter presented sufficient evidence such that a reasonable jury
could find from the considerable passage of time and the nature of the condition involved that a
reasonable premises possessor should have discovered the defect. Accordingly, the trial court
erred by granting summary disposition in favor of Silverside Management based on a finding
that Silverside Management lacked notice. See Gorman, 302 Mich App at 115.

       Silverside Management argues, as an alternative ground for affirmance, that the trial
court correctly granted summary disposition because Shorter failed to raise a genuine issue of
material fact as to the existence of a dangerous condition.3 When considering whether a
premises possessor has breached the duty of care by failing to fix, guard against, or warn of a
dangerous condition on the premises, it must first be determined whether the condition in
question was dangerous. See Prebenda v Tartaglia, 245 Mich App 168, 170; 627 NW2d 610
(2001). “If no reasonable factfinder could conclude that such a dangerous condition existed,
summary disposition is warranted without further review.” Id.

        In Prebenda, 245 Mich App at 170, this Court considered whether there was a question
of fact as to whether a windowless door created a dangerous condition on the defendant’s land.
In that case, the plaintiff was injured in the defendant’s apartment complex when she attempted
to pull a door open and was struck by the door as a resident pushed it open from the other side.



3
 “An appellee may argue alternative grounds for affirmance without filing a cross-appeal if the
appellee does not seek a more favorable decision.” Hanton v Hantz Fin Servs, Inc, 306 Mich
App 654, 669; 858 NW2d 481 (2014). Silverside Management may properly argue this issue
without having filed a cross-appeal because it does not seek a more favorable decision.


                                               -4-
Id. at 169. The plaintiff argued “that the door was dangerously faulty because it had no window
allowing people on each side to see one another.” Id. at 170. This Court disagreed, holding that
the plaintiff did not encounter a dangerous condition at the time of the accident, but instead
encountered a commonplace and ordinary door. Id. In doing so, the Court affirmed the trial
court’s order granting the defendant’s motion for summary disposition pursuant to MCR
2.116(C)(10). Id. at 169.

        The facts in this case are distinguishable from those in Prebenda. As already stated, the
door at issue in this case was made of metal or steel. Record evidence supports that the door was
difficult to open and close, and required a great amount of force and pressure to operate. There
also was evidence produced that the force and pressure created by the door closing was very loud
and caused walls to shake. The door had numerous marks, scratches, and chips, which appeared
to have been caused by the door striking other objects. Indeed, MaGee provided evidence that
she had been knocked into the walkway after being struck by the door; and she was aware of
other residents who had been struck by the door, including one tenant who had his or her hand
“smashed” by the door. Thus, unlike the plaintiff in Prebenda, who simply presented evidence
regarding the state of a commonplace door, Shorter presented evidence regarding the abnormal
manner in which the Parkway Apartment front door closed and the potential harm the door posed
to individuals who used the door. Therefore, we conclude that a question of fact existed such
that a reasonable juror could find that the condition of the door created a dangerous condition.
Consequently, Silverside Management’s argument that summary disposition was proper because
Shorter failed to establish a genuine issue of material fact that the door amounted to a dangerous
condition is without factual support.

        In sum, after considering the evidence in a light most favorable to Shorter as the
nonmoving party, we conclude that Shorter presented sufficient evidence to create a question of
fact as to whether Silverside Management had constructive notice of the dangerous condition of
the door at issue. Consequently, the trial court erred by granting Silverside Management’s
motion for summary disposition, and we reverse and remand to the trial court for proceedings
consistent with this opinion. We do not retain jurisdiction.



                                                            /s/ Thomas C. Cameron
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Douglas B. Shapiro




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