WILLIAM LENZ V MICHIGAN MULTI-KING INC
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STATE OF MICHIGAN
COURT OF APPEALS
WILLIAM LENZ,
UNPUBLISHED
April 21, 2009
Plaintiff-Appellant,
v
MICHIGAN MULTI-KING, INC. and VALLEY
CITY LINEN COMPANY,
No. 283312
Oakland Circuit Court
LC No. 07-081252-NO
Defendants-Appellees.
Before: Beckering, P.J., and Talbot and Donofrio.
PER CURIAM.
Plaintiff, William Lenz, appeals as of right the grant of summary disposition in favor of
defendants, Michigan Multi-King, Inc. and Valley City Linen Company, in this premises liability
action. We affirm.
I. Factual History
At approximately noon on June 12, 2006, plaintiff went to the Baja Fresh restaurant
owned by defendant Michigan Multi-King, Inc. (“Multi-King”) with members of his family.
While plaintiff’s wife and adult son were in line to place their food order and plaintiff’s
daughter-in-law and grandchildren were securing a table for their party, plaintiff went to use the
restroom. While en route to the restroom, plaintiff fell and injured his hip, necessitating his
transport to a local hospital and subsequent medical treatment.
One-half hour earlier, at approximately 11:30 a.m., Otis Register, an employee of
defendant Valley City Linen Company (“Valley City”), made his routine weekly delivery of
clean linens and rugs to the restaurant pursuant to its contract with Multi-King. Upon arrival at
the restaurant, Register picked up three dirty rugs and replaced them with clean rugs. Once these
were placed in his truck, Register went into a back area of the restaurant, inaccessible to
customers, and retrieved a bag of dirty linens and placed it in his vehicle. On his third trip into
the restaurant, Register brought a bag of clean linens and placed them outside the door of the
manager’s office. Because the office was locked and the linens could not be placed inside,
Register tied the bag’s strings to the office handle to keep it upright. Finally, at approximately
11:40 a.m., Register secured the signature of the restaurant’s manager, Jose Benabides, on the
invoice documenting the linen delivery and left the restaurant. The Multi-King contract
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specified the amount, types and costs of linens to be provided but did not indicate where, in the
restaurant, these items were to be placed when delivered.
Plaintiff has no independent recollection regarding what caused him to fall. Plaintiff
acknowledged that cataracts and other long-standing eye problems limited his visual acuity and
that he had a “drop foot” condition resulting in limited flexibility in his right ankle. A patron at
the restaurant, John Crawford Buchanan, indicated that he observed an individual carrying a
large dark-colored bag into the restaurant while he was ordering his own lunch. Once seated,
Buchanan saw plaintiff walk by his table and heard, but did not see plaintiff fall. Buchanan
averred in an affidavit that he observed plaintiff lying on the floor on top of the same bag he had
observed earlier being carried into the restaurant. Buchanan indicated that the dark-colored bag
was on the black tile floor and blended to a degree that made the bag difficult to see or
distinguish and that when he walked to his table he did not see the bag on the floor before
plaintiff’s accident occurred. The store manager, Benabides, completed an incident report on the
same date at 12:20 p.m., indicating the accident occurred at 12:00 p.m. noting, “Customer
trepped [sic]. Black bag on the floor, on the black tile.”
II. Lower Court Proceedings
Plaintiff filed a complaint alleging a premises liability claim against Multi-King and a
negligence claim against Valley City. Multi-King filed a motion for summary disposition
pursuant to MCR 2.116(C)(10), asserting the open and obvious doctrine precluded imposition of
liability. Multi-King also argued that plaintiff failed to establish it had actual or constructive
notice of the alleged hazardous condition and that summary disposition was also precluded
because plaintiff’s theory regarding the cause of his injury was based solely on speculation and
conjecture. Valley City filed a separate motion for summary disposition pursuant to MCR
2.116(C)(8) and (C)(10) based on plaintiff’s failure to establish the existence of a duty owed by
this defendant. Valley City, consistent with co-defendant Multi-King, also asserted plaintiff’s
action was precluded because the alleged hazard was open and obvious and that plaintiff’s theory
of causation was based solely on speculation and conjecture. The trial court, determining that a
genuine issue of material fact did not exist, granted summary disposition in favor of both
defendants based on the open and obvious doctrine.
Plaintiff filed a motion for reconsideration and rehearing asserting the open and obvious
doctrine was not a viable defense for Valley City because it was not the owner or possessor of
the premises. Plaintiff also challenged the trial court’s ruling in favor of Multi-King, asserting
the proffered affidavit of Buchanan served to create a genuine issue of material fact and that the
trial court’s ruling, based on photographs taken after the incident, resulted in an improper
determination of fact and witness credibility. The trial court, relying on unpublished cases
applying the open and obvious doctrine to defendants who have created conditions on premises
they do not own, denied reconsideration regarding its grant of summary disposition in favor of
Valley City. In the alternative, the trial court opined that Valley City was also entitled to
summary disposition based on the absence of a duty owed to plaintiff separate from its contract
with Multi-King. The trial court did not specifically address plaintiff’s assertion of error
regarding the grant of summary disposition in favor of Multi-King in denying the motion for
reconsideration.
III. Standard of Review
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A trial court’s decision to grant or deny summary disposition is reviewed de novo.
Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). Summary disposition
pursuant to MCR 2.116(C)(8):
[P]rovides for summary disposition where [t]he opposing party has failed to state
a claim on which relief can be granted. A motion for summary disposition under
MCR 2.116(C)(8) tests the legal sufficiency of a complaint. The trial court may
only consider the pleadings in rendering its decision. All factual allegations in the
pleadings must be accepted as true. The motion should be granted if no factual
development could possibly justify recovery. [Gillie v Genesee Co Treasurer,
277 Mich App 333, 344; 745 NW2d 137 (2007) (internal citations and quotation
marks omitted).]
A motion granted in accordance with MCR 2.116(C)(10) tests the factual sufficiency of the
complaint. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). Summary
disposition may be granted pursuant to MCR 2.116(C)(10) when the documentary evidence
demonstrates that there is no genuine issue pertaining to any material fact and the moving party
is entitled to judgment in its favor as a matter of law. Veenstra v Washtenaw Country Club, 466
Mich 155, 163; 645 NW2d 643 (2002). A genuine issue of material fact is found to exist when
the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue on
which reasonable minds could differ. West v GMC, 469 Mich 177, 183; 665 NW2d 468 (2003).
Further, whether a defendant owes a duty to a plaintiff comprises a question of law, which this
Court reviews de novo. Fultz v Union-Commerce Assoc, 470 Mich 460, 463; 683 NW2d 587
(2004). A trial court's decision to deny a motion for reconsideration is reviewed by this Court
for an abuse of discretion. Shawl v Spence Bros, Inc, 280 Mich App 213, 218; 760 NW2d 674
(2008).
IV. Analysis
With regard to Valley City, plaintiff correctly asserts the trial court erred in granting
summary disposition to this defendant based on the open and obvious doctrine. As recognized
previously in case law, the open and obvious hazard doctrine is inapplicable to ordinary
negligence claims. Laier v Kitchen, 266 Mich App 482, 484; 702 NW2d 199 (2005); Hiner v
Mojica, 271 Mich App 604, 615-616; 722 NW2d 914 (2006). Despite this error, the trial court
correctly recognized in ruling on the motion for reconsideration that a grant of summary
disposition in favor of Valley City was justified based on the absence of a legal duty.
To establish a claim of negligence, a plaintiff must demonstrate (a) the existence of a
duty, (2) breach of that duty, (3) causation, and (4) damages or injuries. Henry v Dow Chemical
Co, 473 Mich 63, 71-72; 701 NW2d 684 (2005), lv granted 482 Mich 1043 (2008). “The
threshold question in a negligence action is whether the defendant owed a duty to the plaintiff. It
is axiomatic that there can be no tort liability unless defendants owed a duty to plaintiff.” Fultz,
supra at 463 (internal quotation marks and citation omitted). Specifically, when dealing with a
tort action arising from a contractual duty:
[T]he lower courts should analyze tort actions based on a contract and brought by
a plaintiff who is not a party to that contract by using a “separate and distinct”
mode of analysis. Specifically, the threshold question is whether the defendant
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owed a duty to the plaintiff that is separate and distinct from the defendant’s
contractual obligations. If no independent duty exists, no tort action based on a
contract will lie. [Id. at 467.]
Plaintiff contends that Valley City owed him a duty separate and distinct from its contract
with Multi-King “to place the linen bag in an area where it would not pose a danger to
customers.” According to plaintiff’s reasoning, the absence of instructions in the contract
between Multi-King and Valley City regarding the placement of the clean linen bags upon
delivery results in a duty that arises by operation of law. Contrary to plaintiff’s assertions and
convoluted reasoning, there existed no duty independent of the contract with Multi-King.
Simply put, any obligations or duties that arise stem from the existence of the contract between
defendants for the delivery of linen. Hence, plaintiff has failed to demonstrate or establish that
any separate or distinct relationship existed between himself and Valley City that would impose
a duty. Impliedly, plaintiff focuses on whether any danger regarding placement of the bag by
Valley City’s employee was foreseeable. Regardless, when a relationship does not exist between
the parties, liability may not be imposed on a defendant. In re Certified Question, 479 Mich 498,
507; 740 NW2d 206 (2007).
Plaintiff also contends as error the trial court’s grant of summary disposition in favor of
Multi-King based on the open and obvious hazard doctrine, and its subsequent denial of
plaintiff’s motion for reconsideration. While we agree the trial court was not at liberty to
disregard the Buchanan affidavit, which raised a genuine issue of material fact pertaining to the
open and obvious character of the alleged hazard, an alternative basis to affirm the dismissal of
plaintiff’s premises liability exists based on the absence of actual or constructive notice for this
defendant.
It is routinely recognized that a possessor of land is not an absolute insurer with regard to
the safety of an invitee. Anderson v Wiegand, 223 Mich App 549, 554; 567 NW2d 452 (1997).
However, an invitor is deemed to owe an invitee a duty to inspect its premises and make any
necessary repairs or warn of hazards that are discovered. James v Alberts, 464 Mich 12, 19-20;
626 NW2d 158 (2001). In accordance with Clark v Kmart Corp, 465 Mich 416, 419; 634 NW2d
347(2001), after rem 249 Mich App 141 (2002):
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. [Internal citations and
quotation marks omitted, emphasis in original.]
Hence, whether an invitee is owed a duty by an invitor hinges on whether the invitor had actual
or constructive notice of the alleged hazardous condition. Id.
Opposing Multi-King’s motion for summary disposition, plaintiff asserted that notice
existed based on the restaurant manager’s signature on the Valley City delivery invoice
approximately 20 minutes before plaintiff’s fall. In addition, plaintiff cites to testimony by the
restaurant manager indicating that an employee was assigned to the customer area to clean and
conduct inspections on 15-minute intervals, implying an opportunity existed for discovery of the
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alleged hazard. However, contrary to plaintiff’s assertions, the invoice merely provides notice of
the delivery and not its location or the existence of a potential hazard. Notably, although the
linen delivery occurred on a weekly basis, it was typically placed inside the manager’s office and
was only left outside this room when that door was locked. Although reasonable inferences may
be drawn from the evidence to support the existence of constructive notice of a hazardous
condition, such inferences must comprise more than mere speculation or conjecture. Whitmore v
Sears, Roebuck & Co, 89 Mich App 3, 9; 279 NW2d 318 (1979). Plaintiff has failed to
demonstrate that by signing the invoice that the manager was on notice that the linen bag was
outside the office and presented a potential hazard.
Furthermore, there is no evidence of any complaints by customers regarding the alleged
hazard that had occurred anytime previously or during the interval of time between the delivery
of the bag of linens and plaintiff’s fall. Based on the absence of evidence demonstrating that the
condition existed for a sufficient or considerable length of time, the grant of summary disposition
in favor of defendant is proper. Whitmore, supra at 8. In addition, defendant’s assignment of an
employee to do inspections of the customer area of the restaurant on 15-minute intervals,
coupled with Buchanan’s affidavit, suggests that the bag was not readily visible and, therefore,
would not indicate defendant should have known about the condition. This Court should not
reverse a trial court’s order “when the right result was reached for the wrong reason.” Taylor v
Laban, 241 Mich App 449, 458; 616 NW2d 229 (2000).
Affirmed.
/s/ Jane M. Beckering
/s/ Michael J. Talbot
/s/ Pat M. Donofrio
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