              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



PAMELA COPPOLA and TIMOTHY COPPOLA,                                  UNPUBLISHED
                                                                     June 25, 2019
                Plaintiffs-Appellants,

v                                                                    No. 343172
                                                                     Oakland Circuit Court
EDWARD ROSE & SONS, LLC,                                             LC No. 2017-158709-NO

                Defendant,
and

OCCIDENTAL DEVELOPMENT, LLC,

                Defendant-Appellee.



Before: SAWYER, P.J., and O’BRIEN and LETICA, JJ.

PER CURIAM.

        In this statutory premises liability action brought under MCL 554.139, plaintiffs appeal as
of right an order granting summary disposition to defendant.1 On appeal, plaintiffs argue that the
trial court erred by granting summary disposition to defendant because defendant did not provide
reasonable access to plaintiffs’ handicapped parking space as required by statute and that the trial
court erred by declining to consider an admission by defendant’s employee as evidence. We
disagree.

       In December of 2016, Pamela Coppola (Pamela) and her husband, Timothy Coppola
(Timothy), lived in an apartment complex owned and operated by defendant. About one week
before December 21, 2016, there was a snow storm that required defendant to remove snow from
the parking lot where plaintiffs parked their vehicle. In the week leading up to December 21,
2016, defendant plowed the center of the parking lot, but some snow and ice was still present in


1
    “Defendant” refers solely to Occidental Development, LLC throughout this opinion.



                                                -1-
Pamela’s assigned handicapped parking spot when Pamela and Timothy left to go out to dinner
on December 21, 2016. Pamela and Timothy reached their vehicle without incident, but when
they returned home Pamela slipped on ice and snow in her assigned parking spot and injured her
right hand and shoulder. Plaintiffs sued defendant for breaching its statutory duty of care to
Pamela and the trial court granted summary disposition to defendant. This appeal followed.

        Plaintiffs argue defendant breached its statutory duty and MCL 554.139 because Pamela
did not have reasonable access to her parking spot. We disagree.

        Defendant moved for summary disposition under MCR 2.116(C)(10). A trial court’s
summary disposition ruling is reviewed de novo. Walters v Nadell, 481 Mich 377, 381; 751
NW2d 431 (2008). A motion for summary disposition under MCR 2.116(C)(10) tests the factual
sufficiency of the complaint. Joseph v Auto Club Ins Ass’n, 491 Mich 200, 205-206; 815 NW2d
412 (2012). This Court reviews a motion brought under MCR 2.116(C)(10) “by considering the
pleadings, admissions, and other evidence submitted by the parties in the light most favorable to
the nonmoving party.” Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008).
Summary disposition is appropriate “if there is no genuine issue regarding any material fact and
the moving party is entitled to judgment as a matter of law.” West v Gen Motors Corp, 469 Mich
177, 183; 665 NW2d 468 (2003). “There is a genuine issue of material fact when reasonable
minds could differ on an issue after viewing the record in the light most favorable to the
nonmoving party.” Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).

        The moving party has the initial burden to support its claim with documentary evidence
but, once the moving party has met this burden, the burden then shifts to the nonmoving party to
establish that a genuine issue of material fact exists. AFSCME v Detroit, 267 Mich App 255,
261; 704 NW2d 712 (2005). Additionally, if the moving party asserts that the nonmovant lacks
evidence to support an essential element of one of his or her claims, the burden shifts to the
nonmovant to present such evidence. See McNeill-Marks v MidMichigan Med Ctr-Gratiot, 316
Mich App 1, 16; 891 NW2d 528 (2016) (“Circumstantial evidence can be sufficient to establish a
genuine issue of material fact, but mere conjecture or speculation is insufficient.”). This Court
may only consider “what was properly presented to the trial court before its decision on the
motion.” Pena v Ingham Co Rd Comm, 255 Mich App 299, 310; 660 NW2d 351 (2003).
Additionally, “[i]ssues of statutory interpretation are reviewed de novo.” City of Riverview v
Sibley Limestone, 270 Mich App 627, 630; 716 NW2d 615 (2006).

        A trial court’s preserved evidentiary decisions are reviewed for an abuse of discretion.
Landin v Healthsource Saginaw, Inc, 305 Mich App 519, 541; 854 NW2d 152 (2014). “An
abuse of discretion occurs when the trial court chooses an outcome falling outside the range of
principled outcomes.” Nowacki v Dep’t of Corrections, 319 Mich App 144, 148; 900 NW2d 154
(2017) (quotation marks and citation omitted). A trial court also abuses its discretion, however,
“by admitting evidence that is inadmissible as a matter of law.” Hecht v Nat’l Heritage
Academies, Inc, 499 Mich 586, 604; 886 NW2d 135 (2016).

     A landlord’s premises liability for a tenant’s injuries on the premises is established in
MCL 554.139, which states, in relevant part:



                                               -2-
       (1) In every lease or license of residential premises, the lessor or licensor
       covenants:

               (a) That the premises and all common areas are fit for the use intended by
               the parties.

        Our Supreme Court addressed the duty a landlord owes to tenants injured in their parking
lot in Allison, 481 Mich at 419. In Allison, the tenant fell while walking on one to two inches of
snow in his apartment complex’s parking lot. Id. at 423. The Allison Court examined MCL
554.139 to determine what duty the landlord owed to the tenant. The Allison Court held that the
parking lot was a “common area,” under MCL 554.139(1)(a), “because it is accessed by two or
more, or all, of the tenants and the lessor retains general control.” Id. at 428. A parking lot is
“fit for the use intended by the parties,” under MCL 554.139(1)(a), as long as the landlord
“ensure[s] that the entrance to, and the exit from, the lot is clear, that vehicles can access parking
spaces, and that tenants have reasonable access to their parked vehicles.” Id. at 429. A lessor’s
duty to clear ice and snow from a parking lot is only triggered under “much more exigent
circumstances than those” in Allison, meaning an accumulation of one to two inches of snow. Id.
at 430. MCL 554.139 “does not require a lessor to maintain a lot in an ideal condition or in the
most accessible condition possible, but merely requires the lessor to maintain it in a condition
that renders it fit for use as a parking lot.” Id. Furthermore, “[m]ere inconvenience of access, or
the need to remove snow and ice from parked cars, will not defeat the characterization of a lot as
being fit for its intended purposes.” Id.

         The Allison Court applied this standard to the specific facts presented in its case and
found that the tenant’s claim was barred by MCL 554.139(1)(a), because the parking lot was fit
for its intended use. Allison, 481 Mich at 430. The Allison Court also stated that the “[tenant]
did not show that the condition of the parking lot in this case precluded access to his vehicle”
and, therefore, failed to show that the parking lot was unfit for its intended use. Id. at 430-431.
Because the defendant did not breach its duty to the plaintiff, the Allison Court affirmed the trial
court’s order granting summary disposition to the defendant. Id. at 439.2

        The Allison Court, however, did not specify whether “reasonable access” was based on a
subjective or an objective standard. See Allison, 481 Mich at 429-431. We are unaware of any
authority regarding whether the reasonable person standard applies to MCL 554.139. When a
statute abrogates the common law, however, “the Legislature should speak in no uncertain terms
when it exercises its authority to modify the common law.” Velez v Tuma, 492 Mich 1, 11-12;
821 NW2d 432 (2012) (quotation marks and citation omitted). MCL 554.139 is silent on
whether it applies the reasonable person standard. See MCL 554.139. Thus, the objective


2
  Plaintiffs argue that Michigan courts rarely grant summary disposition in cases addressing
whether a defendant breached the duty of care owed to the plaintiff. As the Allison Court made
clear, however, when a defendant clearly has not breached the duty of care owed to a plaintiff, an
order affirming the trial court’s order granting summary disposition to the defendant is
appropriate. Allison, 481 Mich at 439.


                                                 -3-
reasonable person standard used for common law premises liability cases is applicable in this
case. See Velez, 492 Mich at 11-12; Hoffner v Lanctoe, 492 Mich 450, 463-464; 821 NW2d 88
(2012) (applying the objective reasonable person standard to a common-law premises liability
case). As such, defendant did not owe Pamela a higher duty of care because she was a
handicapped person walking through a handicapped parking spot. See Velez, 492 Mich at 11-12;
Hoffner, 492 Mich at 463-464. Additionally, plaintiffs failed to cite any authority supporting
their argument that defendant owed Pamela a higher duty of care and a party cannot simply
assert a position and leave it for this Court to research the issue on their behalf. Thus, plaintiffs
argument that defendant owed Pamela a higher duty of care because she was handicapped is
abandoned. See Mettler Walloon, LLC v Melrose Twp, 281 Mich App 184, 220; 761 NW2d 293
(2008) (“Because plaintiff cites no authority for its argument, we reject it as abandoned on
appeal.”).

        Plaintiffs failed to specify before the trial court the amount of snow and ice in Pamela’s
parking spot on December 21, 2016. Plaintiffs produced photographs of Pamela’s parking spot
taken after Pamela’s fall, but these photographs do not show “much more exigent circumstances”
than the one to two inches of snow discussed in Allison. Allison, 481 Mich at 430. Defendant
plowed the center of the parking lot and asked tenants to move their vehicles so that their parking
spaces could also be plowed. Timothy moved plaintiffs’ vehicle, but it is unknown whether the
cars parked next to Pamela’s parking spot also moved their vehicles to allow a snow plow access
to clear those parking spaces. Defendant also cleared snow from the sidewalks in the apartment
complex and provided plaintiffs with a bucket of salt on their porch to use as they deemed
necessary. A landlord is not required to maintain a parking lot in an ideal condition or in the
most accessible condition possible; rather, a landlord is only required to maintain a parking lot in
a condition that renders it fit for use as a parking lot. Id. The parking lot was fit for use as a
parking lot because Pamela was not deprived of reasonable access to her parking spot. Thus, the
trial court did not err by granting summary disposition to defendant. See id. at 429-431.3

         We note that plaintiffs argue that published opinions decided by this Court before Allison,
as well as unpublished opinions by this Court decided after Allison, show that defendant
breached its duty of care to Pamela. This Court’s unpublished opinions, however, do not have
any precedential authority, MCR 7.215(C)(1); Howell Ed Ass’n, MEA/NEA v Howell Bd of Ed,
287 Mich App 228, 243; 789 NW2d 495 (2010), and Allison carries greater precedential weight
than this Court’s published decisions decided before Allison because (a) Allison is more recent,
(b) it is a case decided by our Supreme Court, and (c) it clearly established the duty a landlord
owes to his or her tenants under MCL 554.139 when the tenant falls in a parking lot. See Paige v
City of Sterling Hts, 476 Mich 495, 524; 720 NW2d 219 (2006) (holding that until our Supreme
Court overrules one of its prior decisions, “all lower courts and tribunals are bound by that prior
decision and must follow it even if they believe that it was wrongly decided or has become


3
   The trial granted summary disposition to defendant on plaintiffs’ common-law premises
liability claim and plaintiffs have not appealed this portion of the trial court’s order granting
summary disposition to defendant. Because common-law premises liability is not at issue on
appeal, we will not address the issue here.


                                                -4-
obsolete.”). Thus, because Allison establishes that defendant did not breach its duty to Pamela,
consideration of the other cases cited by plaintiffs is unnecessary.

        Finally, plaintiffs argue that the trial court improperly relied on “negative evidence” that
Pamela safely walked to her vehicle before going to dinner to demonstrate that she had
reasonable access to her parking spot. Our Supreme Court defined “negative evidence” in
Serinto v Borman Food Stores, 380 Mich 637, 642; 158 NW2d 485 (1968), as “evidence to the
effect that a circumstance or fact was not perceived.” Similarly, Black’s Law Dictionary defines
“negative evidence” as “[e]vidence suggesting that an alleged fact does not exist, such as a
witness’s testifying that he or she did not see an event occur.” Black’s Law Dictionary (10th ed).
Plaintiffs, however, also relied on Michigan’s long-standing rule of evidence that absence of
accidents should not be admitted to show an absence of negligence. See, e.g., Larned v
Vanderlinde, 165 Mich 464, 468; 131 NW 165 (1911); Kurczewski v Mich State Hwy Comm, 112
Mich App 544, 550; 316 NW2d 484 (1982). The trial court did not consider “negative evidence”
of whether any individuals other than Pamela fell in plaintiff’s parking lot, but it did consider
evidence that plaintiffs did not fall in the parking lot on their way to dinner when holding that
defendant did not breach its duty to provide Pamela reasonable access to plaintiffs’ vehicle. This
was in error.

        “Any error in the admission or exclusion of evidence does not require reversal unless a
substantial right of a party is affected or unless failure to do so would be inconsistent with
substantial justice.” Landin, 305 Mich App at 541. “[A]n error affects substantial rights if it
caused prejudice, i.e., it affected the outcome of the proceedings.” Lawrence v Mich
Unemployment Ins Agency, 320 Mich App 422, 443; 906 NW2d 482 (2017) (alteration in
original, citation and quotation marks omitted). Even without considering the fact that plaintiffs
safely reached their car on their way to dinner, as discussed above, the facts in this case are not
“much more exigent circumstances” than the one to two inches of snow in Allison. Allison, 481
Mich at 430. Thus, the trial court’s consideration that plaintiffs safely accessed their vehicle
when they left for dinner did not affect the outcome of the proceedings. There was sufficient
evidence regarding the condition of the parking lot for the trial court to determine defendant did
not breach a statutory duty to plaintiff under MCL 554.139.

       Plaintiffs argue that the trial court erred by refusing to consider the deposition testimony
of Claude Singleton III, a maintenance worker at the apartment complex, where he opines that
Pamela did not have reasonable access to her parking spot in granting summary disposition to
defendant. We disagree.

        To preserve an evidentiary issue for appellate review, the party claiming error must have
objected at trial and specified the same ground for objection that the party asserts on appeal.
Genna v Jackson, 286 Mich App 413, 423; 781 NW2d 124 (2009). Defendant argued that
Singleton’s comment about whether Pamela had reasonable access to her parking space was
inadmissible because Singleton’s answer was a legal conclusion, not an admissible factual
opinion under MRE 701, in its reply to plaintiffs’ response to defendant’s motion for summary
disposition. Plaintiffs argued that Singleton’s answer was not a legal conclusion, but plaintiffs
failed to argue that Singleton’s answer was admissible under any alternative or specific rule of
evidence. Thus, the issue of whether Singleton’s comment that the photograph showed
reasonable access to Pamela’s handicapped parking space called for a legal conclusion or was

                                                -5-
admissible evidence under MRE 701 is preserved. Whether Singleton’s comment was
admissible evidence under MRE 704, however, is unpreserved.

        A trial court’s preserved evidentiary decisions are reviewed for an abuse of discretion.
Landin, 305 Mich App at 541. “An abuse of discretion occurs when the trial court chooses an
outcome falling outside the range of principled outcomes.” Nowacki, 319 Mich App at 148
(quotation marks and citation omitted). A trial court also abuses its discretion, however, “by
admitting evidence that is inadmissible as a matter of law.” Hecht, 499 Mich at 604. “To the
extent that this inquiry requires examination of the meaning of the Michigan Rules of Evidence,
we address such a question in the same manner as the examination of the meaning of a court rule
or a statute, which are questions of law that we review de novo.” Waknin v Chamberlain, 467
Mich 329, 332; 653 NW2d 176 (2002).

         Because plaintiffs’ MRE 704 argument is unpreserved, it is reviewed for plain error.
Hogg v Four Lakes Ass’n, Inc, 307 Mich App 402, 406; 861 NW2d 341 (2014). “To avoid
forfeiture under the plain error rule, three requirements must be met: 1) the error must have
occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial
rights.” Kern v Blethen-Coluni, 240 Mich App 333, 335-336; 612 NW2d 838 (2000) (quotation
marks omitted), citing People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). “[A]n error
affects substantial rights if it caused prejudice, i.e., it affected the outcome of the proceedings.”
Lawrence, 320 Mich App 443 (alteration in original, citation and quotation marks omitted). The
appellant bears the burden of persuasion with respect to prejudice. See Carines, 460 Mich at 763
(“It is the defendant rather than the Government who bears the burden of persuasion with respect
to prejudice.” Quotation marks and citation omitted.)

        Under MCR 2.116(G)(6), “[a]ffidavits, depositions, admissions, and documentary
evidence offered in support of or in opposition to a motion based on subrule (C)(1)--(7) or (10)
shall only be considered to the extent that the content or substance would be admissible as
evidence to establish or deny the grounds stated in the motion.” The determinative factor when
considering what evidence a trial court can consider when ruling on a motion for summary
disposition is the content and substance of the evidence offered, not its form. Dextrom v
Wexford Co, 287 Mich App 406, 427-428; 789 NW2d 211 (2010).

       “Lay witness testimony in the form of an opinion is permitted where it is rationally based
on the witness’ [sic] perception and helpful to a clear understanding of the witness’ [sic]
testimony or the determination of a fact at issue.” Richardson v Ryder Truck Rental, Inc, 213
Mich App 447, 455; 540 NW2d 696 (1995), citing MRE 701. Questions of law, however, are
“within the exclusive responsibility of the trial judge.” Thorin v Bloomfield Hills Bd of Ed, 203
Mich App 692, 704; 513 NW2d 230 (1994). Thus, lay witness testimony may not include legal
conclusions because legal conclusions are not rationally based on a witness’s perception and
such testimony would invade the province of the trial judge. See MRE 701; Richardson, 213
Mich App at 455; Thorin, 203 Mich App at 704.

       Singleton was called to plaintiffs’ apartment on December 21, 2016, after Pamela’s fall.
Singleton examined Pamela’s parking spot and put salt on the snow and ice covered portions that
night. At his deposition, the following exchange occurred:


                                                -6-
               [Plaintiffs’ attorney]: Yeah. I mean, you told me about, you know, the
       different things you guys have to do to accommodate handicap tenants and things
       like that. As it was left by the snow removal contractor the night before, what
       we’re looking at in Exhibit 1, is this a representation of reasonable access and
       accommodation that would allow a handicap resident access to their vehicle?

              [Defendant’s attorney]:      Same objection.     Go ahead and answer the
       question if you can.

               [Singleton]: Based on the picture, no.

Plaintiffs asked Singleton for his observation about a photograph of Pamela’s parking spot taken
the morning after her fall. Singleton personally observed the parking spot on December 21,
2016, and was asked to testify about a photograph of the same location taken on December 22,
2016. Thus, Singleton could testify about what he observed in the photograph as long as his
testimony was rationally based on his perception, i.e. how much snow and ice was in Pamela’s
parking spot or how the condition of Pamela’s parking spot in the picture compared to its
condition on December 21, 2016. See Richardson, 213 Mich App at 455-456 (holding that two
police officers could testify as lay witnesses under MRE 701 about pictures taken of a crash site
that they had personally investigated). Singleton, however, could not testify about whether the
photograph showed that Pamela had “reasonable access” to her parking space, because
“reasonable access” is the term established in Allison, 481 Mich at 428-431, to determine
whether a landlord satisfied their statutory duty of care to tenants in a parking lot. Singleton’s
answer, therefore, called for a legal conclusion and was inadmissible. See Maiden v Rozwood,
461 Mich 109, 130 n 11; 597 NW2d 817 (1999) (“Whether the statutory standard of care was
violated is a legal conclusion.”). Because Singleton’s testimony that Pamela’s parking spot did
not provide her with “reasonable access” to her vehicle was a legal conclusion, the trial court did
not err by refusing to consider it when granting summary disposition to defendant. See MCR
2.116(G)(6).

        Even if the trial court abused its discretion by refusing to consider Singleton’s testimony,
any such abuse of discretion does not require reversal. “Any error in the admission or exclusion
of evidence does not require reversal unless a substantial right of a party is affected or unless
failure to do so would be inconsistent with substantial justice.” Landin, 305 Mich App at 541.
“[A]n error affects substantial rights if it caused prejudice, i.e., it affected the outcome of the
proceedings.” Lawrence, 320 Mich App at 443 (alteration in original, citation and quotation
marks omitted). Plaintiffs attached to their response to defendant’s motion for summary
disposition the photograph shown to Singleton when he testified. The trial court, therefore, was
able to examine the photograph and make its own determination regarding whether the snow and
ice in Pamela’s parking spot prevented her from having reasonable access to her vehicle.
Additionally, the trial court was also able to consider Singleton’s deposition testimony in full,
including his later statement that the center of Pamela’s parking spot provided her with




                                                -7-
reasonable access to the sidewalk.4 Given the trial court’s ability to review the photograph at
issue and the entirely of Singleton’s statements about the condition of the parking spot, the trial
court’s refusal to consider Singleton’s statements about the photograph did not affect the
outcome of the proceedings.

         Finally, plaintiffs argue that Singleton’s statement that Pamela’s parking spot did not
provide her with reasonable access to her vehicle was admissible under MRE 704. MRE 704
states that “[t]estimony in the form of an opinion or inference otherwise admissible is not
objectionable because it embraces an ultimate issue to be decided by the trier of fact.” The
admissibility of such a statement “should not be questioned merely because the determination of
liability may turn on whether the jury believes or disbelieves that opinion.” Andreson v
Progressive Marathon Ins Co, 322 Mich App 76, 91; 910 NW2d 691 (2017) (quotation marks
and citation omitted). As explained above, Singleton’s testimony was inadmissible under MRE
701 because it called for a legal conclusion. Maiden, 461 Mich at 130 n 11. Because
Singleton’s testimony was not “otherwise admissible,” it was also inadmissible under MRE 704.
See MRE 704. Furthermore, as explained, the trial court’s refusal to consider Singleton’s
statements about the photograph did not affect the outcome of the proceedings. Thus, even if
Singleton’s statement about Pamela’s parking spot was admissible under MRE 704, and the trial
court’s refusal to consider it was an abuse of discretion, reversal of the trial court’s order
granting summary disposition to defendant is not warranted.

       Affirmed.



                                                             /s/ David H. Sawyer
                                                             /s/ Colleen A. O’Brien
                                                             /s/ Anica Letica




4
  We note that Singleton’s second answer stating that the middle portion of Pamela’s parking
spot provided her with reasonable access to the sidewalk also calls for a legal conclusion based
on the analysis above, Maiden, 461 Mich at 130 n 11, but assuming that Singleton’s first answer
did not call for a legal conclusion then his second answer also did not call for a legal conclusion.
Both of Singleton’s statements about whether the photograph showed reasonable access,
therefore, should be considered together when determining whether the trial court’s potential
error requires reversal. See MRE 106.


                                                -8-
