Premises liability; Fall due to a driveway pothole; Actual or constructive notice; Lowrey v LMPS & LMPJ, Inc; Kroll v Katz; Distinguishing Basehore v Short (Unpub), Thompson v Gibson (On Remand) (Unpub), & Mancill v Trio Inv Props, LLC (Unpub); Lack of evidence of deterioration or another characteristic revealing the pothole’s age; Consideration of the evidence in deciding a MCR 2.116(C)(10) motion

The court held that the trial court properly granted defendant summary disposition in this premises liability case arising from a fall due to a driveway pothole because defendant identified the lack of evidence on the notice element, and plaintiff did not present evidence that created a genuine factual dispute. She was on defendant’s premises (an automotive business) due to an issue with her work vehicle. She testified that she fell after “her foot landed in gravel inside a pothole, slid backward, struck the back of the hole, and caused her ankle to roll.” She described the hole as “approximately the size of her foot and three to four inches deep, with gravel inside and pavement around it.” On appeal, the court found that the trial court should not have relied on defendant’s owner’s “testimony that he regularly traversed the area without seeing a pothole to the extent that his testimony depended on his disputed identification of the fall location.” But it concluded that reversal was not required. Even under plaintiff’s version of the events, her evidence did “not establish when the condition arose or otherwise permit a reasonable inference that defendant had actual or constructive notice of it. Thus, the disputed testimony” about where she fell was not material to the basis for summary disposition. She did not offer any “evidence that defendant actually knew of the alleged pothole before she fell. No witness testified that the condition had previously been reported or observed, and the record” contained no pre-accident complaint, photo, or repair connected to it. Thus, plaintiff failed to create a genuine issue of material fact as to actual notice. The court found the same was true as to constructive notice. Accepting her testimony, the evidence showed “that a foot-sized, three-to-four-inch-deep, gravel-filled hole existed when she stepped backward from” a vehicle. Her testimony did not establish when it “formed, whether it had changed over time, or whether its appearance reflected prolonged deterioration. [She] did not identify a physical characteristic, such as weathering or deterioration, from which a fact-finder could reasonably determine” its age. Further, the presence of gravel did “not permit a different conclusion.” Affirmed.