Opinion
357165
07-14-2022
SHEILA GRAY, Plaintiff-Appellant, v. RED LOBSTER HOSPITALITY, LLC, Defendant-Appellee.
UNPUBLISHED
Oakland Circuit Court LC No. 2019-176180-NO
Before: MARKEY, P.J., and SHAPIRO and PATEL, JJ.
PER CURIAM.
Plaintiff, Sheila Gray, slipped and fell on a "greasy, oily" substance on the floor of a Red Lobster restaurant. Gray was injured as a result of the fall and sued the store's owner, defendant Red Lobster Hospitality, LLC. The trial court granted summary disposition to Red Lobster pursuant to MCR 2.116(C)(10), concluding that Gray failed to establish a question of fact whether Red Lobster had notice of the hazardous condition. Because we find that there was a question of fact whether Red Lobster had notice of the substance and whether reasonable precautions were taken, we reverse and remand for further proceedings.
I. BACKGROUND
On the date of the incident, Gray was dining at a Red Lobster restaurant in Novi, Michigan. After eating a portion of her meal, she left her seat to use the restroom. Gray testified that, as she "stepped off the carpet onto the cement floor," she felt a slipping sensation. She immediately fell backwards onto the floor. She injured her head, back, and upper extremities in the fall.
Gray claimed that there "had to have been some kind of oily substance" on the floor because when she was trying to stand up, it felt "greasy, oily" and she had difficulty getting up. She did not see a substance on the floor but felt it with her hands as she tried to get up. She did not know how the substance got on the floor, nor did she know how long the substance had been on the floor. Gray briefly exited the restaurant after the fall, but reentered to gather her belongings and use the restroom. Upon reentry, she walked to the restroom. She observed an unattended mop bucket near the area where she fell. She did not see anyone clean the floor. She could not recall if any caution signs were present. But there were no caution signs in the photograph that she took of the area:
(Image Omitted)
The hostess informed the restaurant manager that a customer had slipped and fell in front of the restroom doors. The manager conceded that there "may have been a wet substance" on the floor when she first observed it after the fall, stating that the hostess was "working on cleaning the floor" at the time.
At the manager's request, the hostess wrote out a statement regarding the incident:
To whom this may concern: On Sept 25, 2018, A customer coming out of Restroom informed me that floor in hallway by bathrooms was slippery. I then right away put down 4 caution wet floor signs 2 in hall 1 by Ladies Room and 1 by men's Room and 1 ladies Room and 1 in men's Room. Then proceeded to dry off floor. A little more before I could complete The [sic] drying of floor I was informed that a customer had a slip and fall. I then Imeditaly [sic] got a manager.
Gray sued Red Lobster for negligence. Red Lobster moved for summary disposition, arguing that there was no evidence of active negligence or notice of the condition. The trial court agreed and granted summary disposition to Red Lobster pursuant to MCR 2.116(C)(10). This appeal followed.
II. STANDARD OF REVIEW
This Court reviews "de novo a trial court's decision on a motion for summary disposition." El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 N.W.2d 665 (2019). A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Woodring v Phoenix Ins Co, 325 Mich.App. 108, 113; 923 N.W.2d 607 (2018). Summary disposition under MCR 2.116(C)(10) is only appropriate when there is no genuine issue of material fact. El-Khalil, 504 Mich. at 160. "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." Zaher v Miotke, 300 Mich.App. 132, 139-140; 832 N.W.2d 266 (2013).
III. ANALYSIS
Gray argues that the trial court erred in granting summary disposition because there is a question of fact whether Red Lobster had knowledge of the "greasy, oily" substance and breached its duty owed to Gray. We agree.
It is undisputed that Gray was an invitee of Red Lobster at the time of the injury. Red Lobster owed Gray a duty of reasonable care to protect her from unreasonable risks of harm posed by dangerous conditions on the premises. Hoffner v Lanctoe, 492 Mich. 450, 460; 821 N.W.2d 88 (2012). This duty of care arises when a premises possessor has actual or constructive notice of the dangerous condition. Lowrey v LMPS &LMPJ, Inc, 500 Mich. 1, 8; 890 N.W.2d 344 (2016). Constructive notice is present when the condition "was of such a character, or had existed for a sufficient time, that a reasonable premises possessor would have discovered it." Id. at 11-12. The duty of care is breached when a premises possessor had notice of the dangerous condition "of which the invitee is unaware and fails to fix the defect, guard against the defect, or warn the invitee of the defect." Id. at 8 (quotation marks and citation omitted).
The trial court concluded that the hostess's unsworn statement was "not evidence that the condition was of such a character or existed a sufficient length of time that [Red Lobster] should have had knowledge of it." We disagree. The hostess's unsworn statement establishes a question of fact whether Red Lobster had actual notice of the slippery condition of the floor before Gray fell. The hostess was informed that the floor in the hallway by the restrooms was "slippery." The hostess maintained that she "right away" placed four "caution wet floor signs" and "proceeded to dry off [the] floor." But before she finished, she "was informed that a customer had a slip and fall." Viewing this unsworn statement in the light most favorable to Gray, reasonable minds could conclude that Red Lobster had actual notice of the dangerous condition before Gray fell. While a motion for summary disposition must be supported by substantively admissible evidence, that evidence "does not have to be in admissible form." Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich.App. 362, 373; 775 N.W.2d 618 (2009); see also Maiden v Rozwood, 461 Mich. 109, 123-124; 597 N.W.2d 817 (1999). MCR 2.116(G)(6) provides that admissions and documentary evidence submitted in support of or in opposition to a motion for summary disposition "shall only be considered to the extent that the content or substance would be admissible as evidence to establish or deny the grounds stated in the motion." (Emphasis added.) "Although the trial court may only consider substantively admissible evidence, a party does 'not have to lay the foundation for the admission' for evidence submitted in support of or in opposition to a motion for summary disposition under MCR 2.116(C)(10) 'as long as there [is] a plausible basis for the admission' of the evidence." Airgas Specialty Prod v Mich. Occupational Safety &Health Admin,__ Mich.App. __;__ N.W.2d__ (2021) (Docket No. 351105) (alteration in original), slip op at 18, quoting Barnard Mfg, 285 Mich.App. at 373. The hostess could testify at trial as to the substance of her unsworn statement. That evidence would be admissible.
The written statement by defendant's employee describing the events and her personal observations are not hearsay. MRE 801(d)(2) provides that "a statement authorized by the party to make a statement concerning the subject" is not hearsay. It further provides that a statement "by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship" is not hearsay. See Adama v Doehler-Jarvis, Div of NL Indus, Inc, 419 Mich. 905; 353 N.W.2d 438 (1984); McCallum v Dep't of Corr, 197 Mich.App. 589, 598; 496 N.W.2d 361 (1992). Further, MRE 803(6) permits admission of business records so long as the record was prepared by a person who had a duty to do so, a requirement met here because the employee's statement was written on request of her supervisor.
In Tate v Botsford Gen Hosp, 472 Mich. 904 (2005), our Supreme Court stated as follows in an order:
There was no question of fact regarding plaintiff's competence to refuse treatment because plaintiff failed to respond to the summary disposition motion by setting forth "specific facts" that properly refuted the doctor's testimony that she was responding to a life-threatening emergency situation and that, because of the drug reaction, plaintiff would not have been sufficiently alert or mentally competent to refuse treatment. MCR 2.116(G)(4). Plaintiff's unsworn statements were not notarized and did not affirmatively show that the witnesses, if sworn as witnesses, could testify competently to the facts stated in the statements. MCR 2.119(B)(1)(c).
....
The dissent's challenge to the consideration of Wyatt's statement focuses on form rather than substance. The dissent does not identify a basis to doubt that a proper foundation could be laid for the admission of Wyatt's statement as a record of regularly conducted activity under MRE 803(6) or the statement of a party opponent under MRE 801(d)(2). In fact, the dissent recognizes that Wyatt's description of her own actions is not hearsay and concedes that the content and substance of Wyatt's statement would be admissible. But the dissent maintains that unsworn statements or averments are insufficient to create a genuine issue of material fact. None of the decisions cited by the dissent reference Maiden, Barnard Mfg Co, or MCR 2.116(G)(6). Notably, MCR 2.116 was amended effective January 1, 2001, to add MCR 2.116(G)(6) in direct response to our Supreme Court's decision in Maiden and specifies that materials submitted in support of or in opposition to a summary disposition motion may only be considered to the extent that their content or substance would be admissible. See MCR 2.116, 463 Mich. clvi (staff comment).
The dissent cites Marlo Beauty Supply, Inc v Farmers Ins Group of Cos, 227 Mich.App. 309, 321; 575 N.W.2d 324 (1998), wherein a panel of this Court concluded that the trial court erred in relying on an unsworn opinion letter submitted by the moving party to resolve a question of fact and grant summary disposition. In reaching this conclusion, the Marlo Beauty Supply Court stated that "[o]pinions, conclusionary denials, unsworn averments, and inadmissible hearsay do not satisfy the court rule; disputed fact, or the lack of it, must be established by admissible evidence." Marlo Beauty Supply, 227 Mich.App. at 321. But Marlo Beauty Supply was decided before Maiden, which clarified that a "reviewing court should evaluate a motion for summary disposition under MCR 2.116(C)(10) by considering the substantively admissible evidence." Maiden, 461 Mich. at 121 (emphasis added). This standard was incorporated into the court rule with the addition of MCR 2.116(G)(6) and expounded upon by this Court in Barnard Mfg Co. "[A]lthough the evidence must be substantively admissible, it does not have to be admissible in form." Barnard Mfg Co, 285 Mich.App. at 373. For the same reasons, we are not persuaded by the dissent's citation to Groman v American Honda Motor Co, Inc, 302 Mich.App. 113, 120; 839 N.W.2d 223 (2013) and Liparoto Constr, Inc v Gen Shale Brick, Inc, 284 Mich.App. 25, 33; 772 N.W.2d 801 (2009) because neither of these decisions mention Maiden, Barnard Mfg Co, or MCR 2.116(G)(6). Likewise, the dissent's reliance on Tate v Botsford General Hosp, 472 Mich. 904 (2005) is misplaced because, unlike this case, the plaintiff in Tate presented evidence that was not substantively admissible. Conversely, the dissent concedes that the content and substance of Wyatt's statement would be admissible in this case.
Because the trial court concluded that there was no evidence that Red Lobster had notice of the dangerous condition, it did not address breach. Reviewing the matter de novo, we find that there is a genuine issue of material fact whether Red Lobster breached its duty owed to Gray. The hostess claimed that she placed several "caution wet floor" signs in the area outside the restroom and had started to dry the floor before Gray fell. Gray could not recall if she observed any caution signs in the area where she fell. But the photograph taken shortly after her fall does not reflect that any caution signs were placed. Viewing the evidence in the light most favorable to Gray, reasonable minds could conclude that Red Lobster failed to take adequate precautions to protect its patrons from the dangerous condition presented by the "greasy, oily" floor.
IV. CONCLUSION
The trial court erred in finding that there was no evidence that Red Lobster had notice of the dangerous condition before Gray fell. And although the trial court did not address breach, we conclude that there is a genuine issue of material fact whether Red Lobster breached its duty owed to Gray. Accordingly, the trial court erred in granting summary disposition for Red Lobster. We reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
MARKEY, P.J. (dissenting).
I conclude that the trial court did not err in any respect by granting summary disposition in favor of defendant, Red Lobster Hospitality, LLC, in this premises liability action pursued by plaintiff, Sheila Gray. Consequently, I dissent.
Although I agree with the majority's recitation of the standard of review and the principles governing premises liability claims, I am more than puzzled at their failure to properly apply and analyze them, in sharp contrast to the well-written and reasoned opinion of the trial court. In reversing the trial court's ruling, the majority relies on the unsworn statement of Red Lobster host Lorie Wyatt to conclude that a fact issue exists regarding whether Red Lobster had actual notice of the alleged hazard. Additionally, although the trial court did not reach the issue, my colleagues in the majority remarkably hold that a genuine issue of material fact exists regarding whether Red Lobster breached its duties to invitee Gray. If there is, indeed, an issue, it is neither genuine nor of a material fact as MCR 2.116(C)(10) requires. Wyatt's unsworn statement provided:
To whom this may concern: On Sept 25, 2018, A customer coming out of Restroom informed me that floor in hallway by bathrooms was slippery. I then right away put down 4 caution wet floor signs 2 in hall 1 by Ladies Room and 1 by men's Room and 1 ladies Room and 1 in men's Room. Then proceeded to dry off floor. A little more before I could complete The [sic] drying of floor I was informed that a customer had a slip and fall. I then Imeditaly [sic] got a manager.
MCR 2.116(G)(6) provides that "[a]ffidavits, depositions, admissions, and documentary evidence offered in support of or in opposition to a motion based on subrule (C)(1)-(7) or (10) shall only be considered to the extent that the content or substance would be admissible as evidence to establish or deny the grounds stated in the motion." Evidence need not be in admissible form, but it must be admissible in content. Maiden v Rozwood, 461 Mich. 109, 124 n 6; 597 N.W.2d 817 (1999). I agree that the content and substance of Wyatt's statement would be admissible were she to testify at trial in a manner consistent with her statement. Wyatt's description of her own actions is not hearsay and her reference to the assertion of any another customer about a slippery floor is also not hearsay because it would not be offered to prove the truth of the matter asserted but to demonstrate the effect of the assertion on the listener, here that they received and acted on notice. See MRE 801(c); People v Gaines, 306 Mich.App. 289, 306-307; 856 N.W.2d 222 (2014) ("An out-of-court statement introduced to show its effect on a listener, as opposed to proving the truth of the matter asserted, does not constitute hearsay under MRE 801(c).").
Nevertheless, this Court, in binding precedent, has observed that unsworn statements or averments are not sufficient to create a genuine issue of material fact when opposing a motion for summary disposition brought under MCR 2.116(C)(10). Gorman v American Honda Motor Co, Inc, 302 Mich.App. 113, 120; 839 N.W.2d 223 (2013); Liparoto Constr, Inc v Gen Shale Brick, Inc, 284 Mich.App. 25, 33; 772 N.W.2d 801 (2009) (unsworn report of forensic engineer did not create issue of fact); Marlo Beauty Supply, Inc v Farmers Ins Group of Cos, 227 Mich.App. 309, 321; 575 N.W.2d 324 (1998) ("The trial court erred in relying on this unsworn letter to resolve a disputed question of fact.").1 Therefore, Wyatt's unsworn statement cannot establish a genuine issue of material fact on the element of notice.
I also note that Wyatt's statement is poorly written and confusing, especially when read out of context from other evidence, such that it does not adequately "set forth specific facts showing that there is a genuine issue for trial" regarding notice. MCR 2.116(G)(4). It is not even clear from the statement that Wyatt learned about or had notice of the slippery floor before Gray fell. She stated that after receiving notice and putting up wet-floor signs and before she completed drying the floor, she "was informed that a customer had a slip and fall." (Emphasis added.) Sequentially-speaking, Wyatt did not specifically state that the slip-and-fall indeed occurred after she became involved in the whole matter.
The majority rejects my position regarding unsworn statements, essentially contending that it is contrary to the language in MCR 2.116(G)(6), the Supreme Court's decision in Maiden, 461 Mich. at 123-124, and this Court's ruling in Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich.App. 362, 373; 775 N.W.2d 618 (2009). The majority states that my "challenge to the consideration of Wyatt's statement focuses on form rather than substance." I disagree.
Consistent with MCR 2.116(G)(6), Maiden, and Barnard Mfg, I have already acknowledged the principle that when examining a particular piece of evidence for purposes of MCR 2.116(C)(10), the substance and content of the evidence and not its form must be admissible. For example, even though an affidavit itself is generally not admissible at trial, the substance and content of an affidavit, if admissible, must be considered in evaluating a motion for summary disposition. Maiden, 461 Mich. at 124 n 6. And requiring that an affidavit or another documentary statement setting forth particular facts regarding relevant events be signed and sworn simply concerns the verification of the substance and content; it does not pertain to the overall form of the document. Considering that a statement or averment of facts can result in a case going to full trial, requiring the statement or averment to be sworn is logical and in accord with discovery rules. Indeed, affidavits must be sworn, MCR 2.119(B)(1)(c), interrogatory answers must be sworn, MCR 2.309(B)(1), and testimony in depositions must be sworn, MCR 2.306(C)(1)(a). Had Wyatt made her assertions in an unsworn affidavit, it could not have been considered in ruling on the motion for summary disposition, Rataj v Romulus, 306 Mich.App. 735, 755; 858 N.W.2d 116 (2014), yet the majority accepts her scribbled written statement and uses it to send this case to trial. There is no indication that plaintiff attempted to depose Wyatt or attempted to serve interrogatories relative to her statement.
Noting that Maiden was decided in 1999 and that MCR 2.116(G)(6) was amended by the Supreme Court in 2001 to add the "content or substance" language, the majority calls into question the continuing validity of the proposition that a statement must be sworn to create an issue of fact. But a couple of the cases I cited above in support of my position, Gorman, 302 Mich.App. 113, and Liparoto Constr, 284 Mich.App. 25, along with a slew of consistent unpublished opinions, were decided long after Maiden was issued and the amendment was adopted. Contrary to the majority's suggestion, Gorman and Liparoto Constr cannot be rejected due to their failure to cite or recognize Maiden and MCR 2.116(G)(6). The requirement that a statement be sworn does not even implicate or undermine Maiden and MCR 2.116(G)(6). And once again, Gorman and Liparoto Constr constitute binding precedent. MCR 7.215(J)(1). Comparable to an affidavit, the fact that Wyatt's statement does not constitute hearsay and was made by a Red Lobster employee does not mean that it need not be sworn. As a final point, although the witness statements at issue in Tate v Botsford Gen Hosp, 472 Mich. 904 (2005) (referenced in our footnote 1), were not substantively admissible, the Court in addition ruled that they could not be considered because they were unsworn.
Moreover, Gray's own deposition testimony, filings, and argument at oral argument were alternatingly either contradictory, ambiguous, or reflected lack of recall. Indeed, most of it constituted her general opinion based merely on the fact that she fell and that Red Lobster's employees were simply poor housekeepers, i.e., she felt they should mop/clean at some undefined interval, notwithstanding her lack of knowledge as to their cleaning schedule. But, ironically, all of her unclear testimony, etc., did easily establish that there was no genuine issue that Red Lobster employees immediately attended to the area where she claimed to have fallen as Gray herself noted and proved with her testimony and her photo showing the cleaning bucket and mop in the area minutes after her fall. A fair reading of the statement provided by employee Wyatt is in complete accord with the other employee's testimony that they had no notice of any slippery area near the bathrooms until Gray advised them.
Furthermore, assuming for the sake of argument that Wyatt's written statement can be considered and creates a genuine issue of material fact with respect to whether Red Lobster had notice of the alleged hazard, I do not agree with the majority that the photograph is sufficient to create a genuine issue of material fact regarding whether Red Lobster breached its duties owed to Gray. It does no such thing. Wyatt indicated in her statement that she placed cautionary wetfloor signs in the area of the restrooms immediately after being informed that the floor was slippery. Gray, therefore, needed to present evidence that there were no cautionary wet-floor signs in place at the time of the fall. She did not testify one way or the other on that specific question. And when asked whether she subsequently saw wet-floor signs when she returned to the area after first stepping outside the restaurant, Gray responded, "I don't remember." The photograph allegedly shows the area outside the restrooms upon Gray's return to the restaurant, not at the time when she fell. Gray could not recall how long she was outside Red Lobster before reentering and taking the photograph, but acknowledged it was quite brief. She went back to her food and to gather her belongings. She also said she returned again to the bathroom area and observed no problem with the floors. Moreover, assuming that the photograph depicted the area as it appeared earlier when the fall actually occurred, it is impossible to tell with any certainty that there were no wet-floor signs in the area, as opposed to one or more being present but outside camera range. Again, Gray claimed to either not recall if there were signs or that she may not have seen them.
Had I agreed with the majority on the issue of notice, I would not have agreed with its decision to substantively address the issue regarding whether there exists a factual issue concerning breach of care. Breach was not the focus of the lower court proceedings or appellate briefing, and thus the trial court would be the appropriate arbiter of that issue in the first instance.
In sum, as the trial court determined, Gray patently failed to meet her burden to establish a genuine issue of a material fact so as to counter Red Lobster's motion for summary disposition. I dissent and would affirm the trial court's ruling granting Red Lobster's motion for summary disposition.