BURL C ROLLER V KENCO INC
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STATE OF MICHIGAN
COURT OF APPEALS
BURL C. ROLLER,
UNPUBLISHED
April 20, 2004
Plaintiff-Appellant,
v
No. 244527
Lenawee Circuit Court
LC No. 01-000337-NO
KENCO, INC., d/b/a COUNTRY MARKET,
Defendant-Appellee.
Before: Cooper, P.J., and Griffin and Borrello, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting summary disposition in favor of defendant
pursuant to MCR 2.116(C)(10) in this slip and fall case. We reverse.
On appeal, plaintiff argues that the trial court erred in determining that the evidence he
produced regarding the negligence of defendant or his employees was purely speculative. He
argues that a jury could infer that defendant created the hazard that injured plaintiff, or,
alternatively, had notice of it and failed to remedy the condition. We agree with the first part of
his contention.
A grant of summary disposition is reviewed de novo. Dressel v Ameribank, 468 Mich
557, 561; 664 NW2d 151 (2003); Maiden v Rozwood, 461 Mich 109; 597 NW2d 817 (1999). A
motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim.
The trial court considers the affidavits, pleadings, depositions, admissions, and other
documentary evidence in the light most favorable to the nonmoving party to determine whether a
genuine issue of any material fact exists to warrant a trial. Ritchie-Gamester v City of Berkley,
461 Mich 73, 76-77; 597 NW2d 517 (1999). “Summary disposition is appropriate under MCR
2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is
entitled to judgment as a matter of law. 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.” West v General Motors Corp, 469 Mich 177, 183; 665 NW2d
468 (2003).
“To establish a prima facie case of negligence, a plaintiff must introduce evidence
sufficient to prove that (1) the defendant owed a duty to the plaintiff, (2) the defendant breached
that duty, (3) the defendant's breach of its duty was a proximate cause of the plaintiff's injuries,
and (4) the plaintiff suffered damages.” Berryman v K Mart Corp, 193 Mich App 88, 91-92; 483
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NW2d 642 (1992). In Clark v Kmart Corp, 465 Mich 416, 419; 634 NW2d 347 (2001) (citing
Serinto v Borman Food Stores, 380 Mich 637, 640-641; 158 NW2d 485 (1968)), our Supreme
Court stated: "It is the duty of a storekeeper to provide reasonably safe aisles for customers and
he is liable for injury resulting from an unsafe condition either caused by the active negligence of
himself and his employees or, if otherwise caused, where known to the storekeeper or is of such
a character or has existed a sufficient length of time that he should have had knowledge of it."
When the evidence leads to an inference that defendant created the condition that caused an
injury, proof of notice is unnecessary. Berryman, supra at 93. “Whether defendant’s actions
were reasonable is a question for the jury. The question whether a defendant has breached a duty
of care is ordinarily a question of fact for the jury and not appropriate for summary disposition.”
Latham v Nat’l Car Rental Systems, Inc, 239 Mich App 330, 340; 608 NW2d 66 (2000).
Plaintiff and defendant are in agreement that plaintiff was an invitee of defendant and
that, consequently, defendant owed plaintiff a duty of care. The dispute centers on whether
plaintiff adduced evidence sufficient to create a genuine issue of material fact regarding whether
defendant breached the duty it owed plaintiff as an invitee. As explained above, plaintiff could
establish such a breach by showing either that (1) defendant or his agents were actively negligent
in causing the condition that led to plaintiff’s injury, or (2) that if it were otherwise caused, that
defendant knew of the condition or it was of such a character or had existed a sufficient length of
time that defendant should have had knowledge of it. Clark, supra at 419.
The evidence plaintiff produced consists of: (1) plaintiff’s assertion that besides plaintiff
and another customer, defendant’s employees were the only people in the grocery store at the
time of plaintiff’s fall; (2) the characteristics of the puddle on the grocery store floor; and, (3)
words spoken by defendant’s employee to another employee upon discovering plaintiff on the
floor. From this evidence, plaintiff argues that a jury could conclude that either (1) an employee
or employees of defendant caused the water puddle, or (2) defendant’s employee(s) had notice of
the puddle’s existence and breached their duty to take reasonable measures to prevent plaintiff
from being harmed by it. The trial judge characterized plaintiff’s evidence of defendant’s
negligence as “purely speculative.”
In Karbel v Comerica Bank, 247 Mich App 90, 97-98; 635 NW2d 69 (2001) (internal
citations omitted), this Court stated: “Circumstantial evidence may be sufficient to establish a
case. Nonetheless, parties opposing a motion for summary disposition must present more than
conjecture and speculation to meet their burden of providing evidentiary proof establishing a
genuine issue of material fact.” “[W]hen an appellate court reviews a motion for summary
disposition, it makes all legitimate inferences in favor of the nonmoving party.” Skinner v
Square D Co, 445 Mich 153, 162; 516 NW2d 475 (1994). The Skinner Court, in the context of
determining the requisite causal proof in negligence cases, made the following observations
regarding the basic legal distinction between a reasonable inference and impermissible
conjecture:
[A] conjecture is simply an explanation consistent with known facts or
conditions, but not deducible from them as a reasonable inference. There may be
2 or more plausible explanations as to how an event happened or what produced
it; yet, if the evidence is without selective application to any 1 of them, they
remain conjectures only. On the other hand, if there is evidence which points to
any 1 theory of causation, indicating a logical sequence of cause and effect, then
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there is a juridical basis for such a determination, notwithstanding the existence of
other plausible theories with or without support in the evidence. [Id. at 164,
quoting Kaminski v Grand Trunk W R Co, 347 Mich 417,422; 79 NW2d 899
(1956).]
“The crucial factor is that if the evidence lends equal support to inconsistent conclusions or is
equally consistent with contradictory hypotheses, negligence is not established. In other words,
we cannot permit the jury to guess.” Karbel, supra at 98 (citations omitted).
We hold that plaintiff’s evidence that defendant or his employees negligently caused the
puddle is more than mere conjecture. Plaintiff’s fall happened inside defendant’s premises.
Plaintiff stated that at the time he fell, only he, a young girl, and defendant’s employees were in
the store. He produced evidence that there was a jug of water lying on the floor and there was a
stack of such jugs on a shelf nearby. The substance on the floor where he slipped was water.
One of defendant’s employees stated to another, after observing plaintiff lying in a puddle of
water, something along the lines of: “[G]et a mop. You can’t stack those jugs that close to the
edge.” The other employee did not respond, in plaintiff’s presence, to the reprimand that he had
improperly stacked the water jugs. In addition, defendant did not submit affidavits of its
employees to rebut the inference that the water spill was caused by defendant’s negligent
placement of the water jugs too close to the edge of the shelf.
The limited evidence contained in the record supports a logical reasonable inference that
defendant’s employee or employees did not use reasonable care in stacking the water jugs and
that such negligence was a proximate cause of plaintiff’s injuries. While there may be another
plausible explanation regarding how the water spilled onto the floor, the evidence plaintiff
produced creates by a logical sequence of cause and effect an unrebutted reasonable inference
that defendant’s negligence was a proximate cause of the condition. The employee’s statement,
taken in context, is not equally consistent with the inference that something besides the other
employee’s actions caused the puddle. Karbel, supra.
The evidence is not sufficient to support plaintiff’s alternate theory - that defendant had
notice of the condition. Contrary to plaintiff’s contention, the size of the puddle alone is
insufficient evidence to allow the jury to reasonably infer that it had been on the floor long
enough that defendant should have noticed it. A large puddle would be equally consistent with
two explanations: (1) that a jug had fallen to the floor, burst open and formed the puddle over a
short period of time, or (2) that a jug had fallen to the floor, the fall had opened a small puncture
in it, and the puddle had formed over a long period of time. The evidence produced by plaintiff
“lends equal support to inconsistent conclusions or is equally consistent with contradictory
hypotheses,” and is therefore conjecture insufficient to establish a genuine issue of material fact
regarding negligence. Karbel, supra at 98.
Summary disposition under MCR 2.116(C)(10) was inappropriate based on the existing
record because the evidence plaintiff adduced, considered in the light most favorable to him,
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Our ruling is without prejudice to the renewal of a motion for summary disposition supported
(continued…)
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was sufficient to establish a genuine issue of material fact regarding whether defendant
negligently created the risk that caused plaintiff’s injury.
Reversed.
/s/ Jessica R. Cooper
/s/ Richard Allen Griffin
/s/ Stephen L. Borello
(…continued)
by additional documentary evidence.
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