Premises liability; Ordinary negligence; Invitee; Dangerous condition; Duty; Hammack v Lutheran Soc Servs; Breach; Expert reports; MRE 401; MRE 402; MRE 702; MCL 600.2955; MCR 2.116(G)(6); Substantively admissible evidence; Swimming pond; Warning signs; Lifeguards

The court held that plaintiff’s expert reports could be considered at summary disposition, that the action sounded in premises liability rather than ordinary negligence, and that fact questions existed as to whether the campground’s swimming pond presented an unreasonable risk of harm and whether defendant-campground breached its duty of reasonable care. The decedent, 15-year-old Jaylen, drowned in defendant’s man-made swimming pond. The deepest portion of the marked swimming area reached approximately 11 feet, visibility was zero at six feet, and the pond had an approximately eight-inch layer of soft muck on the bottom. Although signs warned that there was no lifeguard and that patrons swam at their own risk, plaintiff argued the warnings did not adequately convey the pond’s hazards. The trial court granted defendant summary disposition. On appeal, the court first rejected defendant’s challenge to plaintiff’s expert reports, holding that they “meet the requirements of MRE 702, are reliable under MCL 600.2955, and the analysis within the reports is relevant to the issues here.” It further held that their unsworn form did not prevent consideration at summary disposition because “‘although the evidence must be substantively admissible, it does not have to be in admissible form.’” The court next held that because Jaylen’s injuries arose from the allegedly dangerous condition of the pond, “plaintiff’s claim is one of premises liability rather than ordinary negligence.” As to the condition itself, the evidence of the pond’s depth, murky bottom, and lack of visibility permitted “reasonable persons [to] conclude that the swimming pond constituted a dangerous condition posing an unreasonable risk of harm to invitees.” Finally, conflicting expert evidence concerning the adequacy of the warnings, absence of lifeguards, use of lifejackets, and foreseeability of adolescents entering the deep-water area created a breach question. The court held that “reasonable persons could disagree” about Jaylen’s awareness of the danger, whether defendant should have anticipated that he would not discover the hazard, and whether defendant “failed to take adequate precautions to protect swimmers.” Thus, breach presented “a question of fact for the jury to decide.” Reversed and remanded.