DONALD COFFMAN V. DOWNRIVER COMMUNITY FEDERAL CREDIT UNION (Concurring Opinion)
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STATE OF MICHIGAN
COURT OF APPEALS
February 23, 2012
Wayne Circuit Court
LC No. 10-001601-NO
DOWNRIVER COMMUNITY FEDERAL
Before: GLEICHER, P.J., and METER and DONOFRIO, JJ.
GLEICHER, P.J. (concurring in part, dissenting in part)
I respectfully disagree with the majority’s conclusion that “[t]he circumstantial evidence
on which plaintiff relies is insufficient to create a genuine issue of material fact regarding
causation.” Ante at 3. In my view, plaintiff’s evidence creates a jury question concerning the
cause of his fall.
Plaintiff testified that as he placed his foot on the rubberized molding lining the
outermost edge of a step leading to the basement of defendant Downriver Community Federal
Credit Union’s facility, a “glimmer” caught his eye, and he slipped and fell. After regaining
consciousness, plaintiff realized that the back of his pants was wet. He recalled that the day was
cold and snowy, and that a door leading directly to the stairway had been propped open to permit
construction workers access to the building. At his deposition, plaintiff expressed belief that “ice
or water” on the molding had produced the glimmer.
When a motion for summary disposition challenges causation pursuant to MCR
2.116(C)(10), “the court’s task is to review the record evidence, and all reasonable inferences
therefrom, and decide whether a genuine issue of any material fact exists to warrant a trial.”
Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994). Viewed in the light most
favorable to plaintiff, this evidence gives rise to a reasonable inference that snow or ice had
melted on the rubber stairway molding, rendering it slippery. “[I]t usually or reasonably follows
according to common experience and observation of mankind” that when a stairway door
remains open on a snowy day, people can track snow, ice or water onto the stairs as they
descend. SJI2d 3.10. Plaintiff’s damp pants after the fall further augment an inference that the
stairs were wet.
Contrary to the majority’s conclusion that some alternate explanation for the fall “is just
as likely as plaintiff’s theory,” ante at 4, defendant merely speculated that a reflection from the
ceiling lighting caused the glimmer. No evidence supports this causation hypothesis. “[I]f there
is evidence which points to any 1 theory of causation, indicating a logical sequence of cause and
effect, then there is juridical basis for such a determination, notwithstanding the existence of
other plausible theories with or without support in the evidence.” Kaminski v Grand Trunk
Western R Co, 347 Mich 417, 422; 79 NW2d 899 (1956) (quotation marks and citation omitted).
I would hold that drawing reasonable inferences from the evidence, a jury could decide that the
stairs were wet and the rubber molding slippery on the day plaintiff fell.
Nevertheless, I concur with the majority that defendant lacked constructive notice of the
slippery stairs. Plaintiff admitted that he had no idea how long the stairs had been wet. No
evidence suggests that the appearance of the water on the molding should have provided actual
or constructive notice to defendant of its presence. Nor did plaintiff testify concerning the length
of time the door leading to the stairway had remained open. Because plaintiff failed to present
evidence supporting that defendant possessed actual or constructive notice of the wet stairs, I
agree that the trial court correctly granted summary disposition on this ground.
/s/ Elizabeth L. Gleicher