Whether the doctrine of res ipsa loquitur applied; Issue preservation; Henderson v. Department of Treasury; Department of Envtl. Quality v. Morley; The “raise or waive” rule of appellate review; Walters v. Nadell; The court’s discretion to waive preservation rules; Smith v. Foerster-Bolser Constr., Inc.; Napier v. Jacobs

The court held that plaintiff waived appellate review as to the issue of whether res ipsa loquitur applied to the facts of her case because she failed to properly raise the issue in the trial court. She sued defendant for injuries she sustained when a speaker at defendant’s restaurant fell on her. On appeal, plaintiff argued that the trial court erred by granting summary disposition for defendant where the doctrine of res ipsa loquitur applied to the facts of this case. Despite her assertion to the contrary, the applicability of res ipsa loquitur to the facts of her “case was raised for the very first time in a timely motion for reconsideration of the trial court’s order granting” defendant summary disposition. “After the trial court summarily dismissed this case, plaintiff obtained new counsel, who filed a motion for reconsideration, arguing that the trial court had failed to ‘analyze or otherwise apply the’” doctrine. The trial court denied plaintiff’s motion for reconsideration. The court rejected her claim that “this issue was argued by her first counsel in the trial court; the doctrine was just not identified by name.” It noted that she did not offer “any record citations to where the theory was actually advanced. Indeed, in her response to defendant’s motion for summary disposition, plaintiff proceeded under a theory of premises liability, arguing that defendant had breached its duty to her, as a business invitee, by failing to inspect the speaker, and failing to warn plaintiff of any defect.” She further asserted “the foreseeability of injury resulting from a speaker that had been negligently erected. [Her] counsel argued consistently with plaintiff’s brief at a hearing on defendant’s” summary disposition motion. As such, it concluded that res ipsa loquitur was not raised before plaintiff’s motion for reconsideration. Finally, the court found there were no “exceptional circumstances” in this case that would have justified a waiver of preservation requirements. “Plaintiff could have raised this issue in a timely fashion, yet for whatever reason failed to do so.” Affirmed.