Summary
rejecting plaintiff's "evaporation theory was completely unsupported by any expert testimony, either by deposition or affidavit, and thus amount[ed] to no more than sheer speculation and conjecture"
Summary of this case from Misko v. Speedway, LLCOpinion
Docket No. 91076.
Decided August 14, 1986.
Gittleman, Paskel, Tashman Blumberg, P.C. (by Marshall Fogelson), for plaintiff.
Shoup, Hayduk, Dawson, Andrews Hypnar, P.C. (by Mark A. Hypnar), for defendant.
Before: SHEPHERD, P.J., and J.H. GILLIS and MacKENZIE, JJ.
Plaintiff appeals as of right from an order of the circuit court dated February 18, 1986, granting defendant's motion for summary disposition. MCR 2.116(C)(10).
Plaintiff filed a complaint seeking damages for injuries sustained on April 9, 1984, when he slipped on a puddle of oil located in a parking lot owned by the defendant. According to the plaintiff, the oil puddle was rather small, but was surrounded by an oil stain 2 1/2 feet in diameter. Plaintiff also indicated that he did not notice the oil spill prior to his fall.
In ruling on the defendant's motion, the trial court noted that in a slip and fall accident defendant is liable to plaintiff, as a business invitee, "for injury resulting from an unsafe condition either caused by the active negligence of himself and his employees or, if otherwise caused, where known to the storekeeper or is of such a character or has existed a sufficient length of time that he should have had knowledge of it." Serinto v. Borman Food Stores, 380 Mich. 637, 640-641; 158 N.W.2d 485 (1968), quoting a headnote paraphrasing the Court's statements as to the law as set forth in Carpenter v. Herpolsheimer's Co, 278 Mich. 697; 271 N.W. 575 (1937). The trial court granted the motion for summary disposition, concluding that plaintiff could not prove that defendant knew or should have known of the oil spill.
Plaintiff attacks the trial court's ruling by proposing the following theory. Noting that the oil stain was much larger than the actual puddle itself, plaintiff concludes that the stain must have resulted from the evaporation of the oil spill. Given the naturally slow rate of evaporation, plaintiff argues that the oil spill must have been of a long-standing duration, and thus defendant should have been aware of its existence.
However, as provided in MCR 2.116(G)(4), when a motion for summary disposition under rule 2.116(C)(10) is made and supported as provided in the rule, "an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial." Plaintiff's evaporation theory was completely unsupported by any expert testimony, either by deposition or affidavit, and thus amounts to no more than sheer speculation and conjecture. Since "[m]ere conjecture does not meet the burden of the opposing party to come forward with affidavits or some other evidentiary proof to establish that there exists a genuine issue of material fact," Szidik v. Podsiadlo, 109 Mich. App. 446, 451; 311 N.W.2d 386 (1981), summary disposition was appropriate. Pauley v. Hall, 124 Mich. App. 255; 335 N.W.2d 197 (1983).
We also note that, while plaintiff's theory has a certain logical consistency, there exists an equally plausible explanation for the disparity in the size of the puddle and the stain, that being the propensity of oil to saturate the surrounding pavement after it has been spilled. Assuming that saturation occurs at a much faster rate than evaporation, the spill may have been present in the defendant's parking lot for only a brief time before the plaintiff's fall. While it might be said that, without expert testimony, speculation is also required to conclude that saturation occurs at a faster rate than evaporation, such an argument merely points out the fact that plaintiff has failed to "establish circumstances `such as to take the case out of the realm of conjecture' and into `the field of legitimate inferences from established facts,'" Whitmore v. Sears, Roebuck Co, 89 Mich. App. 3, 9; 279 N.W.2d 318 (1979), quoting Gadde v. Michigan Consolidated Gas Co, 377 Mich. 117; 139 N.W.2d 722 (1966).
Affirmed.