                            STATE OF MICHIGAN

                            COURT OF APPEALS



PAMELA J. ARSENAULT,                                                 UNPUBLISHED
                                                                     October 28, 2014
               Plaintiff-Appellant,

v                                                                    No. 316381
                                                                     Wayne Circuit Court
DESIGNER WEARHOUSE CENTER, INC.,                                     LC No. 11-014017-NO

               Defendant-Appellee.


Before: OWENS, P.J., and JANSEN and O’CONNELL, JJ.

OWENS, P.J. (dissenting).

       I respectfully dissent from the majority opinion and would affirm the trial court’s order
granting defendant’s motion for summary disposition.

        I disagree with the majority’s conclusion that this is not a premises-liability case. An
action sounds in premises liability when an injury develops because of a condition on the land,
rather than from activity or conduct that created the condition. James v Alberts, 464 Mich 12,
18-19; 626 NW2d 158 (2001). By reading the complaint as a whole, it is clear that plaintiff
alleged that her injuries resulted from defendant’s failure to reasonably maintain the premises in
a safe condition and to protect customers from falling mannequins, which were a fixture in the
store. This sounds in premises liability. Claims plaintiff made in response to defendant’s
summary disposition do not control the classification of an action, as “[i]t is well settled that the
gravamen of an action is determined by reading the complaint as a whole, and by looking beyond
mere procedural labels to determine the exact nature of the claim.” Adams v Adams (On
Reconsideration), 276 Mich App 704, 710-711; 742 NW2d 399 (2007).

        As a business invitee, defendant owed plaintiff a duty “to exercise reasonable care to
protect 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 storekeeper
has the duty to provide reasonably safe aisles for customers, and will be liable for injuries caused
by unsafe conditions if (1) the condition was caused by the active negligence of the storekeeper
or its employees, (2) the storekeeper or its employees actually knew about the condition, or (3) it
was of such a character or had existed for a sufficient length of time that the storekeeper or its
employees should have known about it. Clark v Kmart Corp, 465 Mich 416, 419; 634 NW2d
347 (2001).



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        In this case, there is no evidence that the mannequin fell due to the active negligence of
defendant or its employees, or that defendant or its employees had actual knowledge of the
mannequin’s condition. Plaintiff admitted in her deposition that Greg Robertson, the store
employee who was assisting her at the time, could not have knocked the mannequin loose given
his location in the store. Further, the only evidence submitted by plaintiff was her deposition and
selected medical records. Plaintiff did not provide any evidence to show that defendant or its
employees actually installed the mannequin or that it was even installed improperly.

         The crux of plaintiff’s argument appears to focus on the third prong of the test for
storekeeper liability, in that plaintiff argues that the facts give rise to an inference of constructive
notice. Specifically, plaintiff argues that a securely fixed mannequin would not fall, and thus,
defendant must have installed it improperly or known that it was unstable. However, this
inference amounts to nothing more than speculation. There is no evidence that the placement of
the mannequin was of such a character or had existed for a sufficient length of time that
defendant or its employees should have known about its instability. Rather, it is equally as likely
that another customer may have jostled the mannequin loose and left the store shortly before
plaintiff arrived. This equally plausible explanation would require the trier of fact to speculate as
to how the mannequin fell. See Skinner v Square D Co, 445 Mich 153, 164; 516 NW2d 475
(1994) (stating that it is insufficient to submit a causation theory that is “just as possible as
another theory”). “A party opposing a motion for summary disposition must present more than
conjecture and speculation to meet its burden of providing evidentiary proof establishing a
genuine issue of material fact.” Cloverleaf Car Co v Phillips Petroleum Co, 213 Mich App 186,
192–193; 540 NW2d 297 (1995). Further, the burden is on the plaintiff to “present substantial
evidence from which a jury may conclude that more likely than not, but for the defendant’s
conduct, the plaintiff’s injuries would not have occurred.” Skinner, 445 Mich at 164-165. On
this record, I conclude that plaintiff failed to meet her burden of proof. When viewing the
evidence in the light most favorable to plaintiff, there was insufficient evidence to support
plaintiff’s theories that the active negligence of defendant’s employees caused the mannequin to
fall, or that defendant had actual or constructive notice of the mannequin’s condition. Therefore,
I would conclude that the trial court did not err by granting defendant’s motion for summary
disposition.



                                                               /s/ Donald S. Owens




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