Premises liability; Slip & fall; Failure to consider a late-filed affidavit; Constructive notice; Hearsay; Duty to inspect the premises for hazards

The court held that viewed in the light most favorable to plaintiff-Bitkowski, the evidence only established “that there was a puddle of water present, not that” defendant-Andiamo West had constructive notice of the condition. Thus, the trial court did not err by granting Andiamo West summary disposition. Bitkowski argued “that the trial court abused its discretion by not considering an affidavit from her sister, [S]. Bitkowski submitted the affidavit weeks after she filed her response to the motion for summary disposition, Andiamo West moved to strike it as untimely,” and the trial court declined to consider it. Bitkowski’s submission of S’s “affidavit was an attempt to supplement her response to the summary disposition motion. As a result, the standard seven-day timeline for submission of such documents applied. Although Bitkowski filed the affidavit nine days before the hearing on the motion for summary disposition, the affidavit was not the first document that she filed in response to that motion. Indeed, [she] had already filed her response brief three weeks before she filed the affidavit. According to MCR 2.116(G)(1)(a)(iv), she needed leave of the court to submit supplemental materials. [She] did not request permission, nor did the court order an alternate timeline for submission of affidavits in support of or opposition to the motion for summary disposition. As such, the affidavit was untimely filed.” While it had discretion to consider untimely documents, the trial court elected not to do so. Bitkowski next argued that the trial court erred in granting Andiamo West summary disposition. She “was an invitee, so Andiamo West had a duty to keep the premises safe. However, in response to [its] motion for summary disposition, Bitkowski failed to provide sufficient evidence to establish a fact question regarding constructive notice. Apart from [S’s] affidavit, which was properly excluded, Bitkowski contends a question of fact existed on the basis of her own testimony regarding the puddle of water; her husband’s observations; and the comments of Andiamo West’s manager, as relayed to her by her husband. But Bitkowski testified that she saw the puddle only after she slipped and that others saw or commented on the puddle while rendering aid. That a puddle may have existed when she fell does not demonstrate the duration of the hazard or that the nature of the puddle was such that Andiamo West should have been aware of it.” The court held that her “reliance on her husband’s observations and statements made to him is misplaced because the only evidence of what [he] claimed to have seen and heard was Bitkowski’s own testimony.” Her testimony as to his “statements and observations, as well as the statements he heard from the manager, described out-of-court statements Bitkowski’s husband made to her. The statements were offered to prove that the observations of Bitkowski’s husband and his recollection of the manager’s comments were true. Thus, Bitkowski’s testimony on this subject constituted inadmissible hearsay, which could not be considered for purposes of summary disposition.”