The Michigan Supreme Court unanimously held in a December 2016 per curiam opinion that a premises owner is not required to present affirmative evidence that it did not have actual or constructive notice of a dangerous condition on the property.
In Lowrey v. LMPS & LMPJ, Inc., the plaintiff and her friends were at a bar celebrating St. Patrick’s Day and used the back stairs several times that evening to get to the smoking patio on the third floor of the bar. While leaving the bar, the plaintiff slipped and fell on the back stairs. She claimed that because her clothes were wet after her fall, the step must have been wet. But she admitted that she never saw water on the steps that evening, and both she and her friends testified that they never heard anyone complain about the stairs being slippery. Multiple witnesses, including the bar manager, also testified that they were unaware of anyone else falling on the stairs that night.
The trial court granted the defendant’s motion for summary disposition, finding that the plaintiff had failed to raise a genuine issue of material fact in her premises liability action that the defendant had notice (actual or constructive) of the hazardous condition prior to the plaintiff’s fall.
The Court of Appeals reversed the lower court’s ruling, holding that, to succeed on a motion for summary disposition, the premises owner was required to present affirmative evidence establishing that it did not have actual or constructive notice of the condition. Relying heavily on the prior published decision in Grandberry-Lovette, the court held that a premises owner seeking summary disposition based on lack of notice must present evidence as to what a reasonable inspection under the circumstances would entail and that, given the nature of the condition, the premises owner would not have been able to discover the hazard had an inspection been performed.
The Michigan Supreme Court held that the Court of Appeals erred when it required the premises owner to present evidence of a reasonable inspection under the circumstances and to prove its lack of notice of the hazardous condition. The Court noted that, under the law, it is the plaintiff’s burden to prove that the premises owner had either actual or constructive notice of the hazard. Therefore, the Court ruled that requiring the premises owner to prove that it did not have notice improperly shifted the burden from the plaintiff to the defendant, and that a premises owner is not required to do more than show the insufficiency of the plaintiff’s evidence. To the extent that the Grandberry-Lovette case held otherwise, it is now overruled.
Because the plaintiff in this case failed to present evidence that the premises owner had either actual or constructive notice of the dangerous condition prior to her fall, the Michigan Supreme Court summary disposition in favor of the defendant was proper.