DEBORAH MARINO V RALPH NARTKER
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
DEBORAH MARINO and DOUGLAS MARINO,
UNPUBLISHED
April 30, 2009
Plaintiffs-Appellants,
v
No. 282564
Monroe Circuit Court
LC No. 06-021113-NO
RALPH NARTKER,
Defendant-Appellee.
Before: Beckering, P.J., and Talbot and Donofrio, JJ.
PER CURIAM.
Plaintiffs Deborah and Douglas Marino appeal as of right the trial court’s order granting
defendant Ralph Nartker summary disposition pursuant to MCR 2.116(C)(10) in this premises
liability case. We affirm.
Plaintiffs allege that Deborah sustained injuries to her tailbone when she fell down a
flight of stairs in the house they were renting from defendant after the handrail detached from the
wall. On appeal, plaintiffs argue that summary disposition was improperly granted because there
was a material question of fact whether defendant breached his duty of care by failing to properly
install the handrail and whether defendant’s alleged negligence was a proximate cause of
plaintiffs’ injuries.
We review a trial court’s decision on a motion for summary disposition de novo. Willett
v Waterford Charter Twp, 271 Mich App 38, 45; 718 NW2d 386 (2006). A motion for summary
disposition brought under MCR 2.116(C)(10) tests the factual support for a claim and “should be
granted when there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law.” The Healing Place at North Oakland Med Ctr v Allstate Ins Co,
277 Mich App 51, 55-56; 744 NW2d 174 (2007) (citations omitted). The non-moving party may
not rest upon mere allegations or denials in the pleadings, but must, by documentary evidence,
set forth specific facts showing that there is a genuine issue for trial. Quinto v Cross & Peters
Co, 451 Mich 358, 362; 547 NW2d 314 (1996); Karbel v Comerica Bank, 247 Mich App 90, 97;
635 NW2d 69 (2001). A genuine issue of material fact exists when the record, drawing all
reasonable inferences in favor of the non-moving party, leaves open an issue on which
reasonable minds could differ. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468
(2003). We review for an abuse of discretion a trial court’s decision to sanction a party for the
destruction or spoilation of evidence. Bloemendaal v Town & Country Sports Ctr, Inc, 255 Mich
-1-
App 207, 211; 659 NW2d 684 (2002); Brenner v Kolk, 226 Mich App 149, 160-161; 573 NW2d
65 (1997).
To establish a claim of negligence, a plaintiff must prove: (1) that the defendant had a
duty to the plaintiff, (2) the defendant breached that duty, (3) the breach proximately caused an
injury, and (4) the plaintiff suffered damages as a result. Taylor v Laban, 241 Mich App 449,
452; 616 NW2d 229 (2000). Different standards of care are owed to a plaintiff in accordance
with the plaintiff’s status on the land. Benton v Dart Props, Inc, 270 Mich App 437, 440; 715
NW2d 335 (2006). In this case, it is undisputed that plaintiff was a tenant and invitee of
defendant. See Id. (stating that “a tenant is an invitee of the landlord”). Generally, a landlord
owes a duty to invitees “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, 464 Mich
512, 516; 629 NW2d 384 (2001).
The trial court concluded that because Douglas removed the handrail from the wall and
plastered over the holes where the handrail was attached, plaintiffs denied defendant any
meaningful opportunity to investigate how the handrail was attached to the wall and whether it
was installed negligently.1 As a consequence of plaintiffs’ destruction of evidence, the trial court
excluded photographs2 as well as Douglas’s description of how the handrail had been installed.
The trial court concluded that plaintiffs failed to present evidence that created a material question
of fact regarding whether defendant breached his duty of care. Plaintiffs argue that there is
affirmative evidence of defendant’s negligence and the trial court erred by suppressing the
photographic evidence and Douglas’s description of how the handrail was attached.
A trial court, from its inherent powers, has the authority to sanction a party for failing to
preserve evidence that it knows or should know is relevant before litigation has commenced.
Brenner, supra at 160. In Brenner, which is instructive here, the trial court granted summary
disposition in the defendants’ favor because the plaintiff failed to preserve evidence. Id. at 154155. This Court reversed, in part, concluding that outright dismissal was too severe of a
sanction. Id. at 163-164. The plaintiff in that case was injured while driving the defendants’
vehicle. Id. at 151. While the plaintiff was able to remove part of the allegedly defective seat
belt, the entire car was demolished before any other evidence could be retrieved. Id. at 152.
This Court held that in a case involving a party’s failure to preserve evidence, “a trial court
properly exercises its discretion when it carefully fashions a sanction that denies the party the
fruits of the party’s misconduct, but that does not interfere with the party’s right to produce other
relevant evidence.” Id. at 161. This Court noted that possible lesser appropriate sanctions
included the exclusion of evidence that unfairly prejudices the other party or an instruction that
1
Plaintiffs contend that the handrail was improperly installed by being screwed into plaster,
rather than a stud, leading to inadequate mounting.
2
The photographs, taken in May 2005, show the handrail with the brackets and plastic anchors
as well as Douglas holding the handrail up to the wall where he alleges it was positioned along
the stairs, but the screw holes had already been covered by plaster and their location is
indiscernible.
-2-
the jury may draw an inference adverse to the culpable party from the absence of the evidence.
Id.
In this case, as a sanction for plaintiffs’ removal of the handrail from the wall and
plastering over the screw holes, the trial court chose to exclude plaintiffs’ photographs of the
handrail depicting where plaintiffs contend it had been attached and Douglas’s testimony
regarding improper mounting. We conclude that the trial court did not abuse its discretion in
excluding this evidence because plaintiffs’ actions denied defendant any meaningful opportunity
to investigate how the handrail was attached to the wall. In accordance with Brenner, the trial
court fashioned a sanction that denied plaintiffs the fruit of their misconduct. Removing the
handrail and plastering over the wall made plaintiffs the final source of where and how the
handrail was attached.
Plaintiffs’ argument that defendant did not suffer prejudice because he had personal
knowledge regarding how the handrail was attached and admitted that the photograph of the wall
anchors and screws looked like the items used to affix the handrail to the wall is misleading.
Plaintiffs’ theory rests on the installation of the handrail, not the type of anchors used. Douglas
even testified that he believed the anchors needed to be placed into studs to secure the handrail.
However, once Douglas completely removed the handrail and plastered over the wall, it was
impossible for any objective evidence to be found. By removing the handrail and patching, it
was impossible to determine if there was an anchor failure, a location failure, or even an abuse of
the handrail. Moreover, contrary to plaintiffs’ assertion on appeal, the trial court did not grant
summary disposition as a sanction for the spoliation of the evidence. Rather, it excluded the
photographs and Douglas’s descriptions. Without that evidence, plaintiffs were without any
affirmative evidence establishing a breach of duty by defendant. The trial court did not abuse its
discretion by excluding the spoiled evidence, and it properly granted summary disposition on the
ground that plaintiffs failed to create a material question of fact regarding whether defendant
breached his duty.
Defendant also contends that summary disposition was proper because he did not have
notice of the hazardous condition. Given our resolution of the prior issue, we need not address
defendant’s claim regarding lack of notice. Moreover, we need not address plaintiffs’ claim that
the trial court erred in finding that they failed to present sufficient evidence of causation.
Affirmed.
/s/ Jane M. Beckering
/s/ Michael J. Talbot
/s/ Pat M. Donofrio
-3-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
