EARL LOSEY JR V RICHARD B FUSCO
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STATE OF MICHIGAN
COURT OF APPEALS
EARL LOSEY, JR., and TALENNA RILEY,
UNPUBLISHED
November 17, 2000
Plaintiffs-Appellants,
v
No. 218442
Emmet Circuit Court
LC No. 97-004403-NZ
RICHARD B. FUSCO, LINDA FUSCO,
RICHARD VELCHANSKY, and DEBBIE
VELCHANSKY,
Defendants-Appellees.
Before: Neff, P.J., and Murphy and Griffin, JJ.
PER CURIAM.
Plaintiffs appeal as of right from the trial court’s order granting defendants’ motion for
summary disposition pursuant to MCR 2.116(C)(10). We affirm.
Plaintiffs were tenants in a building owned by defendants. The building was destroyed by
a fire. Plaintiffs argue the trial court erred by concluding that there was no genuine issue of
material fact regarding whether defendants should have known the fireplace was defective.
We review the trial court’s decision granting summary disposition de novo. Allen v
Keating, 205 Mich App 560, 562; 517 NW2d 830 (1994). When reviewing a motion for
summary disposition under MCR 2.116(C)(10), the court must examine the documentary
evidence presented below and, drawing all reasonable inferences in favor of the nonmoving
party, determine whether a genuine issue of material fact exists. Maiden v Rozwood, 461 Mich
109, 119-121; 597 NW2d 817 (1999); Quinto v Cross & Peters Co, 451 Mich 358, 361-362; 547
NW2d 314 (1996). The party opposing the motion may not rest on the mere allegations or
denials contained in the pleadings but must come forward with evidence of specific facts to
establish the existence of a material factual dispute. Id. at 362, 371. A question of fact exists
when reasonable minds could differ regarding the conclusions to be drawn from the evidence.
Glittenberg v Doughboy Recreational Industries (On Rehearing), 441 Mich 379, 398-399; 491
NW2d 208 (1992); see also Quinto, supra at 367, 371-372.
For purposes of their motion, defendants do not dispute plaintiffs’ status as invitees. “An
‘invitee’ is ‘a person who enters upon the land of another upon an invitation which carries with it
an implied representation, assurance or understanding that reasonable care has been used to
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prepare the premises, and make them safe for their reception.’” Stitt v Holland Abundant Life
Fellowship, 462 Mich 591, 597; 614 NW2d 88 (2000), quoting Wymer v Holmes, 429 Mich 66,
71 n 1; 412 NW2d 213 (1987). “The landowner has a duty of care, not only to warn the invitees
of any known dangers, but the additional obligation to also make the premises safe, which
requires the landowner to inspect the premises and, depending upon the circumstances, make any
necessary repairs or warn of any discovered hazards.” Stitt, supra at 597; see also Kroll v Katz,
374 Mich 364, 373-374; 132 NW2d 27 (1965). “Thus, an invitee is entitled to the highest level
of protection under premises liability law.” Stitt, supra at 597. “A possessor of land is subject to
liability for physical harm caused to his invitees by a condition on the land if the owner: (a)
knows of, or by the exercise of reasonable care would discover, the condition and should realize
that the condition involves an unreasonable risk of harm to such invitees; (b) should expect that
invitees will not discover or realize the danger, or will fail to protect themselves against it; (c)
fails to exercise reasonable care to protect invitees against the danger.” Id. at 597; see also Kroll,
supra at 373-374.
Here, plaintiffs contend they presented sufficient evidence to establish a genuine issue of
material fact with regard to whether defendants should have known about the alleged defective
condition of the fireplace, i.e., its potential to cause pyrolization. We disagree. There was no
evidence that any of the defendants had any training, knowledge, or experience concerning
firebox insulation or the specific phenomenon of pyrolization. Although there was evidence that
the defendants Velchansky knew the furnace ductwork in the unit was not up to code, there was
no suggestion the furnace ductwork contributed to the cause of the fire and such knowledge does
not support an inference that defendants Velchansky should have known the fireplace in unit 6
was defective.
Further, notwithstanding evidence that defendants were aware a fire occurred in unit 1,
there was no evidence the Velchanskys were aware of the cause of that fire, or that it was caused
by the same fireplace defect that allegedly existed in unit 6. Indeed, the evidence indicated the
fireplace in unit 1 was replaced before the fire in that unit. Thus, the fact that the Velchanskys
were aware there had been a fire in unit 1 on a prior occasion does not support an inference that
they should have known the fireplace in unit 6 was allegedly defective.
Viewed most favorably to plaintiffs, the submitted evidence did not raise a genuine issue
of material fact with regard to whether defendants should have known about the allegedly
defective condition of the fireplace. The trial court therefore properly granted defendants’
motion for summary disposition. See McCune v Meijer, Inc, 156 Mich App 561, 562-563; 402
NW2d 6 (1986) (no question of fact existed where the plaintiff failed to produce evidence to
support his theory that the defendant knew or should have known about an oil spill that caused
the plaintiff’s accident).
Affirmed.
/s/ Janet T. Neff
/s/ William B. Murphy
/s/ Richard Allen Griffin
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