Slip & fall; Premises liability; Kandil-Elsayed v F & E Oil, Inc; Liability waiver; Public policy; Cudnik v William Beaumont Hosp; Contracting against liability for ordinary negligence; Skotak v VicTanny Int’l, Inc; Gross negligence; Xu v Gay; Reckless conduct; Tarlea v Crabtree

The court held that plaintiff’s signed shower-facility waiver was not void as against public policy and that plaintiff failed to establish gross negligence. Plaintiff slipped and fell after showering at defendant’s physical-therapy facility. She argued that the waiver she signed was unenforceable under Cudnik or, alternatively, that defendant’s conduct amounted to gross negligence. On appeal, the court first held that Cudnik did not invalidate the waiver because that case involved medical malpractice and “negligence related to a patient’s medical care,” while this case involved premises liability arising from plaintiff’s use of a shower facility where defendant “would not be assisting plaintiff in the shower[.]” The court emphasized that Michigan generally permits parties to contract against liability for ordinary negligence, and “our courts have upheld waivers relating to premises liability.” The waiver was enforceable because both parties were competent, it gave plaintiff options, there was no evidence of duress or fraud, and there were “no indicia of an unlawful adhesion contract.” The court also held that plaintiff failed to show gross negligence because the shower had mats, handrails, regular cleaning, and periodic anti-slip treatment. Although plaintiff argued defendant could have done more, the court noted that “‘[s]imply alleging that an actor could have done more is insufficient’” and defendant here “actively attempted to minimize the potentially slippery nature of the floor.” Thus, defendant’s conduct did not show “‘a substantial lack of concern for whether an injury results.’” Affirmed.