VALERIA COOK V DETROIT RECEIVING HOSPITAL
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STATE OF MICHIGAN
COURT OF APPEALS
VALERIA COOK,
UNPUBLISHED
November 17, 1998
Plaintiff-Appellant,
v
No. 204982
Wayne Circuit Court
LC No. 96-609034 NO
DETROIT RECEIVING HOSPITAL, INC.,
Defendant-Appellee.
Before: Murphy, P.J., and Fitzgerald and Gage, JJ.
PER CURIAM.
Plaintiff appeals as of right the order granting summary disposition in favor of defendant pursuant
to MCR 2.116(C)(10) in this premises liability action. We affirm.
Plaintiff suffered an electrical shock when she attempted to turn on a light switch at her place of
employment. Plaintiff sued defendant, the owner of the building, for negligence on the theory of
premises liability. She claimed that, as an invitee, defendant owed her certain duties that it failed to
fulfill. Plaintiff alleged that defendant (1) knew or should have known of the hazard, (2) failed to inspect
the electrical system on a regular basis, and (3) failed to maintain the electrical system in safe working
order. The trial court, finding that plaintiff failed to present any evidence that defendant had notice of a
dangerous condition, granted summary disposition in favor of defendant.
Plaintiff first claims that the trial court prematurely granted summary disposition because
discovery was incomplete as a result of defendant’s inability to produce the light switch. She contends
that the loss of the switch gave rise to an inference that the switch would have been unfavorable to
defendant’s defense, and that such an inference creates a genuine issue of material fact. We disagree.
Intentional destruction of evidence by a party raises a presumption against that party that the
evidence would have been unfavorable to its case. Trupiano v Cully, 349 Mich 568, 570; 84 NW2d
747 (1957). Here, however, plaintiff merely argues that her experts were unable to determine the
reason for the malfunction of the switch and render an opinion during the period of discovery because
the switch was not produced. Plaintiff offered no proof that defendant intentionally destroyed the
switch. Hence, the doctrine of spoliation is not applicable.
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Plaintiff next argues that defendant had notice of the dangerous condition, or, in the alternative,
defendant’s knowledge of the defect was irrelevant because defendant caused the dangerous condition.
To prevail in her suit, plaintiff had to establish that defendant knew or should have known of the
dangerous condition. In Whitmore v Sears Roebuck & Co, 89 Mich App 3, 8; 279 NW2d 318
(1979), the Court explained:
The occupier 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, 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.
[Kroll v Katz, 374 Mich 364, 373; 132 NW2d 27 (1965).]
Plaintiff’s deposition testimony does n establish that there were any visible defects on the
ot
switch. In addition, plaintiff failed to bring forth evidence that there were prior claims that the switch
was defective or hazard. Thus, plaintiff failed to establish that the hidden defect was of such a character
or duration that defendant should have discovered it with due care. Id. at 372. No evidence suggests
that defendant was on notice, actual or otherwise, of any dangerous condition and, therefore, defendant
cannot be held liable for failing to warn plaintiff of a defect or for failing to repair a defect of which it had
no knowledge. Whitmore, supra at 8.
Plaintiff asserts that defendant was actively negligent by failing to inspect the premises. In
instances where the land owner, thorough its active negligence, is the cause of a dangerous condition,
notice of the existence of the condition is unnecessary. Hulett v Great Atlantic & Pacific Tea Co,
299 Mich 59, 67; 299 NW2d 807 (1941); Williams v Borman’s Foods, Inc, 191 Mich App 320,
321; 477 NW2d 425 (1991). This is because a defendant cannot “by its own act create a hazardous
condition and then demand that plaintiff, who was injured as a result thereof, prove it had knowledge of
such condition.” Hulett, supra at 66-67.
To show active knowledge, plaintiff must show more than defendant’s failure to inspect the light
switch. Plaintiff must also show that the switch itself was a hazardous condition created by defendant.
Plaintiff failed to do so. Unlike Hulett, where the defendant’s negligent conduct was clearly defined,
plaintiff has failed to articulate what defendant’s negligent act is. She alleges that defendant was
negligent by failing to inspect the switch, but no showing has been made that an inspection would have
revealed a dangerous condition. More importantly, no evidence was presented that it was defendant’s
own conduct that created the condition. In sum, there is simply no evidence linking defendant’s conduct
with plaintiff’s injuries
Lastly, plaintiff argues that her claim could have been established through the doctrine of res ipsa
loquitur. The doctrine of res ipsa loquitur “entitles a plaintiff to a permissible inference of negligence from
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circumstantial evidence.” Jones v Porretta, 428 Mich 132, 150; 405 NW2d 863 (1987). It is used
when a plaintiff is unable to prove its case by direct evidence of defendant’s actual negligent conduct.
Id. at 150. In order to prevail on the theory, (1) the event must be of a kind which ordinarily does not
occur in the absence of someone’s negligence, (2) it must be caused by an agency or instrumentality
within the exclusive control of the defendant, and (3) it must not have been due to any voluntary action
or contribution on the part of the plaintiff. Id. at 150-151. Additionally, the true explanation for the
cause of a plaintiff’s injury must be “more readily accessible to the defendant than to the plaintiff.” Id. at
151.
Plaintiff’s argument that her claim may be established by use of the doctrine must fail. As
discussed above, it is not clear what the cause of plaintiff’s injuries were. For instance, the manufacturer
of the switch may have produced a defective switch, or a surge in electricity may have caused the
shock. Where more than one explanation for an injury exists, res ipsa loquitur should not be applied.
Id. at 150-151. There is simply no reason to conclude that plaintiff’s injury was the result of
defendant’s negligence. While plaintiff's injury may be considered the type which would not ordinarily
occur in the absence of someone’s negligence, there is simply no evidence to show that her injury was
“caused by an agency or instrumentality within the excessive control of the defendant.” Id. The mere
fact that plaintiff suffered an injury on defendant’s premises is insufficient to show that defendant was
negligent. Kroll, supra at 373. Hence, the trial court properly granted summary disposition in favor of
defendant.
Affirmed.
/s/ William B. Murphy
/s/ E. Thomas Fitzgerald
/s/ Hilda R. Gage
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