Bayn v. Department of Natural Resources

507 N.W.2d 746, 202 Mich. App. 66
CourtMichigan Court of Appeals
DecidedOctober 12, 1993
DocketDocket 138952
StatusPublished
Cited by4 cases

This text of 507 N.W.2d 746 (Bayn v. Department of Natural Resources) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bayn v. Department of Natural Resources, 507 N.W.2d 746, 202 Mich. App. 66 (Mich. Ct. App. 1993).

Opinion

*68 Per Curiam.

Plaintiff appeals as of right from an order of the Court of Claims granting defendant’s motion for summary disposition pursuant to MCR 2.116(C)(7) and (10). We reverse and remand for additional proceedings.

On November 16, 1990, plaintiff filed a complaint against defendant, alleging that she suffered injuries in a slip and fall accident on June 22, 1990, at the campground registration office of the Sterling State Park operated by defendant. In her complaint, plaintiff alleged that defendant’s negligence in maintaining the floor of the building in a safe condition was the proximate cause of her injuries. Specifically, plaintiff alleged in part:

7. It had previously rained outside and the tiled floor inside the office had a high accumulation of wax. This, in combination with the wet weather conditions, created a severe, highly dangerous condition of which Defendant was aware, or should have been aware, and caused Plaintiff to slip and fall.
8. Further, there were no rubber mats on the floor to protect against this type of occurrence.
9. At all times relevant hereto, said Defendant knew, or should have known, that the aforementioned acts and results constituted creation of and maintenance of an unreasonable hazard.

On December 21, 1990, defendant moved for summary disposition pursuant to MCR 2.116(C)(7) on the ground that plaintiff’s claim was barred by governmental immunity, MCL 691.1401 et seq.; MSA 3.996(101) et seq., as well as pursuant to MCR 2.116(C)(10) on the ground that there was no genuine issue of material fact because the campground registration office floor was not dangerous or defective, because it had never been waxed and because defendant did not have actual or construe *69 tive knowledge of any alleged defect in the floor. In support of the motion, defendant submitted an affidavit of Steve Harmon, who had been the park manager of the Sterling State Park for the previous seven years.

Sometime before the hearing for the motion for summary disposition scheduled for January 30, 1991, plaintiffs counsel requested an adjournment, and the hearing was rescheduled for February 6, 1991. Shortly before February 6, 1991, plaintiffs counsel again requested an adjournment, but defendant’s counsel refused his request.

At the hearing on February 6, 1991, plaintiff argued that defendant brought its motion for summary disposition before discovery had been completed in this case, and that it was premature to say whether there was a genuine issue of material fact solely on the basis of the affidavit of the park manager. The trial court disagreed, noting that if plaintiff had been denied discovery, then she should have requested a postponement of the hearing, which plaintiff did not do. In an order dated February 22, 1991, the trial court granted defendant’s motion for summary disposition.

Plaintiff moved for rehearing and reconsideration on the grounds that she had not been given an opportunity to conduct discovery and that floor mats should have been present as a safety device. In support of this motion, plaintiff submitted an affidavit of her attorney, who stated that defendant’s counsel refused his second request for adjournment and also refused permission to depose several of defendant’s employees and other individuals who had witnessed the accident. Plaintiff also submitted an affidavit of Mitchell Alfaro, a licensed architect, who stated that the principal entranceway of a building should be designed to maximize safety features. Alfaro also stated that *70 he needed to view the site to evaluate the condition of the floor and the type of substance used to clean the floor.

In response to plaintiffs motion for reconsideration, defendant argued that plaintiff was not denied an opportunity to conduct discovery because the accident occurred in a public building that remains open all year. Moreover, defendant argued that plaintiff could not establish that defendant had knowledge of any alleged defect in the floor. Defendant submitted an affidavit of defense counsel, who stated that he refused opposing counsel’s request for adjournment because an expert could not satisfy plaintiffs burden of showing that defendant had knowledge of any alleged defect. Defendant’s counsel also stated in his affidavit that he did not indicate to plaintiffs counsel that he could not view the floor or take depositions of department employees.

In an order dated March 8, 1991, the trial court denied plaintiffs motion for reconsideration, finding that plaintiff had failed to rebut defendant’s affidavit that defendant had no notice of the alleged defect or to show that discovery could lead to the creation of a genuine issue of material fact regarding such notice.

Generally, the granting of a motion for summary disposition before discovery on a disputed issue is complete is considered premature. Prysak v R L Polk Co, 193 Mich App 1, 11; 483 NW2d 629 (1992). Summary disposition may be proper before discovery is complete if further discovery does not stand a fair chance of uncovering factual support for the position of the party opposing the motion. Id.

In the instant case, we believe that defendant’s motion for summary disposition was granted prematurely because it was not reasonable to expect *71 plaintiff to gather sufficient facts to withstand a motion for summary disposition within the compressed time frame allotted in this case between the filing of the complaint and the granting of the motion for summary disposition. This is not a case where it could be said that it was impossible for the claim to be supported at trial because of an insurmountable deficiency.

Although not set forth in plaintiffs complaint, plaintiff asserts in her appellate brief that "[t]he entrance way was not designed to prevent water from accumulating directly on the surface of the floor or constructed with material so as to provide friction so that one would not slip on the smooth tile surface when it was wet.” Plaintiffs request in the trial court for additional time may also be viewed as a request to have the architect determine whether there was a defect in the design or construction of the entrance to the building.

In Wade v Dep’t of Corrections, 439 Mich 158, 163; 483 NW2d 26 (1992), the Court, addressing the public building exception to governmental immunity under MCL 691.1406; MSA 3.996(106), cited Reardon v Dep’t of Mental Health, 430 Mich 398; 424 NW2d 248 (1988), to support the following statement:

The duty to repair and maintain relates to the structural condition of the premises, and a government engaged in a governmental function is open to liability only where the injury results from a dangerous or defective condition of a building. [Wade, p 163.]

In Wade, p 168, the Court, again citing Reardon,

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Bluebook (online)
507 N.W.2d 746, 202 Mich. App. 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bayn-v-department-of-natural-resources-michctapp-1993.