MICHAEL WALKER V LESLIE H KUTINSKY
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STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL WALKER,
UNPUBLISHED
October 12, 1999
Plaintiff-Appellant,
V
No. 209554
Oakland Circuit Court
LC No. 97-538231 NO
LESLIE H. KUTINSKY and JOHN DAVEY,
Defendants-Appellees.
Before: Hoekstra, P.J., and O’Connell and Danhof*, JJ.
PER CURIAM.
Plaintiff appeals as of right from the trial court’s order granting defendant’s motion for summary
disposition in this premises liability action. We affirm.
On November 28, 1995, plaintiff worked as a paralegal for the law firm of Leslie H. Kutinsky,
P.C. Defendants are lawyers who, together with their wives, owned the building that housed their
offices. While on break, plaintiff sustained injuries when he slipped and fell on ice that had accumulated
under the building’s downspout. As a result of the injuries, plaintiff received worker’s disability
compensation benefits.
In redeeming his compensation award, plaintiff released the law firm and defendant Kutinsky,
individually and as his employer, from all liability. The release stated, in pertinent part:
In further consideration of the receipt of this settlement the undersigned employee fully
releases and forever discharges the employer, its insurer, its officers, directors and
employees from any and all liability, claims, and causes of action whatsoever, including,
but not limited to, tort actions, civil rights and handicapped disability claims, claims for
wrongful discharge, and any claims for discrimination arising directly or indirectly out of
his employment.
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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The trial court granted defendant Kutinsky’s motion for summary disposition holding that the exclusive
remedy provision of the Worker’s Disability Compensation Act, MCL 418.131; MSA
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17.237(131), and the signed release barred plaintiff’s claims. The court also granted defendant
Davey’s motion for summary disposition, holding that plaintiff presented no evidence that defendant
Davey knew or should have known that water from the downspout would accumulate on the pavement.
Initially, we note that plaintiff filed his appeal within the twenty-one day limit prescribed by
MCR 7.204(A)(1)(b). Defendants argue that plaintiff’s appeal is untimely as to defendant Kutinsky,
because plaintiff’s motion for reconsideration, filed with the trial court, specifically stated that it only
related to defendant Davey. Generally, a party must file an appeal of right within twenty-one days after
a final judgment has been entered. MCR 7.204(A)(1)(a). However, if a party files a motion for
reconsideration, that party has twenty-one days from the entry of a denial of the motion for
reconsideration to bring the appeal. MCR 7.204(1)(A)(b). An order denying a motion for
reconsideration is not a final order from which one may appeal as of right, but where the motion has
been properly filed, a party may file its appeal as of right within twenty-one days after an order denying
the motion for reconsideration. Nye v Gable, Nelson & Murphy, 169 Mich App 411, 415; 425
NW2d 797 (1988). Here, defendant simply argues that because the motion for reconsideration only
applied to defendant Davey, plaintiff only had an additional twenty-one days with respect to that
defendant. We do not read the rule so narrowly. The rule states, in pertinent part:
An appeal of right in a civil action must be taken within
(a) 21 days after entry of judgment or order appealed from;
(b) 21 days after entry of an order denying a motion for new trial, a motion for
rehearing or reconsideration, or a motion for other postjudgment relief, if the motion
was filed within the initial 21-day period or within further time the trial court may have
allowed during that 21-day period . . .
Nothing in the rule suggests that in a case involving multiple parties the motion for reconsideration only
extends the time period for filing an appeal as to those parties mentioned in the motion. Indeed, a
motion for reconsideration requires the movant to “demonstrate a palpable error by which the court and
the parties have been misled.” MCR 2.119(F)(3). It may be that plaintiff felt he could only show
palpable error with respect to one of the defendants. This fact should not force him to bring separate
appeals for each defendant, one within twenty-one days of the original judgment and another within
twenty-one days of the order denying a motion for reconsideration. Where one judgment is at issue, the
motion for reconsideration, even if filed with respect to only one of the parties, stays the entire judgment
for purposes of calculating the time period for filing an appeal as of right.
Here, plaintiff timely filed his appeal of right. Plaintiff filed a motion for reconsideration shortly
after the trial court granted defendants motion for summary disposition. The court denied the motion for
reconsideration in an order dated January 21, 1998. On February 9, 1998 plaintiff filed an appeal as of
right. This was within the twenty-one day requirement of MCR 7.204(A)(1)(b). Therefore, we have
jurisdiction over both defendants.
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Having addressed defendant’s jurisdictional concerns, we turn our attention to basis for the trial
court’s order granting summary disposition. This Court reviews a grant of summary disposition de
novo. Baker v Arbor Drugs, Inc, 215 Mich App 198, 202; 544 NW2d 727 (1996). Defendants
brought their motion pursuant to MCR 2.116(C)(4), (C)(8) and (C)(10). The circuit court did not
indicate under which subrule it granted summary disposition. However, because it appears that the
court looked beyond the pleadings in making its determination, this Court will consider the motion as
having been granted pursuant to MCR 2.116(C)(10). Swan v Wedgwood Christian Youth and
Family Services, Inc, 230 Mich App 190, 194; 583 NW2d 719 (1998). A motion for summary
disposition brought under MCR 2.116(C)(10) tests the factual support for the plaintiff's claim. Id. “A
court reviewing such a motion should review the record evidence and all reasonable inferences drawn
from it and decide whether a genuine issue regarding any material fact exists to warrant a trial.” Id.
We find that the trial court properly granted summary disposition as to both defendants.
Summary disposition as to defendant Kutinsky was appropriate because the release signed by plaintiff
barred any further premises liability action. Plaintiff fully released and discharged the law firm, its
insurer, its officers, directors and employees from all liability, claims, and causes of action, including tort
actions. The language of the release was not limited to plaintiff’s worker’s disability compensation
claim; it included claims stemming from defendant’s capacity as the property owner. “[T]he scope of a
transaction which embraces redemption agreements for workers’ compensation actions and settlement
of potential claims against tortfeasors is not limited to the settlement of claims for injuries arising out of
and in the course of employment.” Beardslee v Michigan Claim Services, Inc, 103 Mich App 480,
488; 302 NW2d 896 (1981)(citations omitted).1
Summary disposition as to defendant Davey was appropriate because plaintiff failed to produce
evidence that would have supported a finding that defendant Davey knew or should have known of the
ice-covered pavement. Here, plaintiff was an invitee. A person is an invitee if he was “induced to come
by personal invitation, or by employment which brings him there, or by resorting there as to a place of
business, or of general resort held out as open to customers.” Polston v S. S. Kresge Co, 324 Mich
575, 578; 37 NW2d 638 (1949). Plaintiff was on the property because he was employed there. In
Kroll v Katz, 374 Mich 364; 132 NW2d 27 (1965) our Supreme Court defined the duty a possessor
owes to his invitees as follows:
The [possessor] is not an insurer of the safety of invitees, and his duty is only to exercise
reasonable care for their protection. He must not only warn the visitor of dangers of
which he knows, but must also inspect the premises to discover possible defects. There
is no liability, however, for harm resulting from conditions from which no unreasonable
risk was to be anticipated, or those which the occupier did not know and could not
have discovered with reasonable care. The mere existence of a defect or danger is not
enough to establish liability, or unless it is shown to be of such a character or of such
duration that the jury may reasonably conclude that due care would have discovered it.”
Id. at 373.
Therefore, in order to recover, plaintiff must show that defendant knew or should have known about the
existence of the unsafe condition. Whitmore v Sears Roebuck & Co, 89 Mich App 3, 8; 279 NW2d
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318 (1979). “Notice may be inferred from evidence that the unsafe condition has existed for a length of
time sufficient to have enabled a reasonably careful storekeeper to discover it.” Id. Further, “where the
alleged hazardous condition was caused by . . . weather conditions . . ., the plaintiff was required to
prove that the defendant had notice of such conditions and had reasonable time to correct the same.”
Hulett v Great Atlantic & Pacific Tea Co, 299 Mich 59, 68; 299 NW 807 (1941). Plaintiff failed to
take defendant Davey’s deposition before the discovery cut-off date and was unable to produce
evidence that defendant Davey knew or should have known of the ice on the pavement, and that he had
reasonable time to correct the condition.
Because we have found that summary disposition was proper for both parties, based on the
release for defendant Kutinsky and the lack of notice for defendant Davey, we do not need to address
whether the Worker’s Disability Compensation Act’s exclusive remedy provision applies.
Affirmed.
/s/ Joel P. Hoekstra
/s/ Peter D. O’Connell
/s/ Robert J. Danhof
1
We cannot determine whether the release pertains to defendant Davey because the record does not
indicate whether defendant Davey was an officer or employee of the law firm.
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