Opinion
No. 347844
04-30-2020
PETER J. SABAN, Plaintiff-Appellant, v. HENRY FORD HEALTH SYSTEM and HENRY FORD MACOMB HOSPITAL CORPORATION, Defendants-Appellees.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Macomb Circuit Court
LC No. 2018-002886-NO Before: RIORDAN, P.J., and FORT HOOD and SWARTZLE, JJ. PER CURIAM.
Plaintiff appeals as of right the trial court's order granting defendants' motion for summary disposition under MCR 2.116(C)(8) and (10). Plaintiff suffered personal injuries when the wheelchair in which he was riding struck an alleged defect on defendants' premises and he fell forward out of the wheelchair, sustaining injuries. Plaintiff sued defendants, alleging claims of premises-liability and violation of the Persons With Disabilities Civil Rights Act (PWDCRA), MCL 37.1101, et seq. Regarding plaintiff's premises-liability claim, the trial court ruled that the alleged defect was open and obvious, with no "special aspects." Further, the trial court rejected plaintiff's arguments that defendants owed him a "special duty" because he was using a wheelchair at the time of his injury, and that defendants owed him a statutory duty to maintain its sidewalk under MCL 125.1361. Regarding plaintiff's PWDCRA claim, the trial court ruled that plaintiff could not recover under the statute because he presented no evidence that he qualified as "disabled." We affirm.
I. BACKGROUND
This case arises from a personal injury that occurred on March 9, 2015. Plaintiff traveled to defendants' urgent-care clinic for a routine blood draw. Plaintiff was seated in a wheelchair, being pushed by his friend. When plaintiff was just outside defendants' urgent-care clinic, the front wheels of his wheelchair struck an alleged defect in the surface over which he was traveling and he fell forward out of his wheelchair, sustaining injuries.
The clinic had two parking lots: one in front of the clinic and one behind the clinic. On the date of his fall, plaintiff first went to the parking lot in front of the clinic, but because there were no available parking spaces there, he went to the parking lot behind the clinic. Plaintiff had visited the clinic several times before the incident to "get blood draws" at the request of his primary-care physician. Plaintiff estimated that the total number of times he had visited the clinic before his fall was "about five times," and that he had used the front door on three of those five visits.
During those prior visits, plaintiff did not require the use of a wheelchair because he "was able to walk then with a cane." During his visits, he "used to go in the front door all the time." When he used the front door, the security guard employed by defendants sometimes came out to plaintiff's vehicle with a wheelchair and escorted him into the clinic. On one of his prior visits, plaintiff parked behind the clinic in a handicapped-parking spot, used his crutches, and walked in to the clinic without assistance. On that occasion, plaintiff did not notice a defect at the base of the ramped sidewalk leading to the door. Plaintiff stated, "No, I walked around it. I didn't even walk on it." Plaintiff explained that he did not need to use the ramped sidewalk during that prior visit because he was not in a wheelchair, but was using his crutches. Therefore, he did not travel over the area where the defect was located.
On March 9, 2015, plaintiff parked his vehicle in the parking lot behind the clinic. At that time, plaintiff was not required to use a wheelchair, and was not "permanently on crutches," but was using "a cane and crutches." Because it was "a long walk" from the clinic to the spot where he parked his vehicle, plaintiff waited in his vehicle while his friend went into the clinic and obtained a wheelchair for him. Plaintiff did not need his friend's help to move from his vehicle to the wheelchair. Plaintiff recalled that his friend "held onto the wheelchair and locked it out, and I got in the wheelchair and he proceeded to push me in" to the clinic. Plaintiff expressly denied that either he or his friend was carrying crutches or a cane as plaintiff rode in the wheelchair from his vehicle to the clinic. Plaintiff explained that these mobility aids were unnecessary for his visits to the clinic because he typically "stayed in the wheelchair the whole time when I had my blood draws."
As plaintiff's friend pushed him in the wheelchair, they encountered a defect in the surface on which the wheelchair traveled. Throughout the trial court proceedings, plaintiff referred to the defect as a "deep crevice," while defendants referred to it as a "pothole." At his deposition, plaintiff agreed with defense counsel's characterization that the wheelchair "hit a crevice or a pothole at the base of a downhill slope, sidewalk or ramp." Plaintiff stated that the location was "a wheelchair ramp, basically" that formed "just a little small hill." Plaintiff admitted that he was not looking down at the ground when he encountered the defect, stating "I was looking up, and I wasn't looking down." Plaintiff further explained that he was looking at the building, rather than the ground. Plaintiff admitted that "the hole was quite big," approximately "five inches deep," "more than a foot" wide, and approximately two and a half feet long. Plaintiff stated, "it was pretty big," and admitted, "If I were looking down, yes, I would have seen it." Despite the size of the defect, plaintiff's friend did not see it, "and he hit it" with the wheelchair.
When the wheelchair hit the defect, plaintiff and the wheelchair "flipped over." Plaintiff explained, "I went down and tried to brace myself, from what I recall, so I didn't hit my head. My legs were pinned under the wheelchair and the wheelchair was on top of me." Plaintiff's friend struggled to lift the wheelchair off plaintiff, because it was heavy, and he finally succeeded after "about five minutes." After plaintiff was assisted back into the wheelchair, he looked at the defect. Plaintiff described it as follows:
Q. Okay. It was a large pothole?Plaintiff further admitted that there was nothing obscuring the pothole, such as grass, leaves, snow, or ice. Instead, plaintiff described the alleged defect as "wide open," and he agreed that he would have noticed it if he had been looking down.
A. Yes, sir.
Q. It was a pothole that you, if you were looking down at the ground, you would have seen?
A. Definitely.
Q. Okay. And then once you got up and you were helped back into the wheelchair, you looked down and this pothole, obviously you couldn't miss is because of its size?
A. Yes.
Plaintiff stated that, because he was in a great deal of pain, he went into the clinic and saw a nurse. Plaintiff recalled that the clinic performed x-rays of his hips and possibly his knees. Plaintiff estimated that it took approximately two and a half hours to have the x-rays performed, after which he was cleared to go home, and the security guard pushed him out to his vehicle using a wheelchair. Plaintiff initially stated that, because of his accident, he never got his blood drawn that day. Defense counsel later brought to plaintiff's attention the medical records stating that plaintiff's blood was indeed drawn on the date of the incident. Plaintiff then stated that he did not remember whether or not his blood was drawn that day. Defense counsel explored plaintiff's recollection regarding whether the fall occurred while plaintiff was attempting to enter the clinic or while plaintiff was leaving the clinic:
Q. . . . Like I had discussed, my documentation shows that the fall occurred as you were leaving the clinic after you had your blood drawn on March 9th, 2015.
A. I don't remember that happening.
Q. That's where I was going, is whether or not you refute that that's accurate or you just don't recall?
A. I don't recall.
Q. And you don't recall whether or not you went immediately back into the clinic after you fell or whether you came back the next day?
A. I don't recall, no.
Defendants moved for summary disposition of plaintiff's claims under MCR 2.116(C)(8) and (10). Primarily, defendants argued that they were entitled to summary disposition of plaintiff's premises-liability claim because the alleged defect was open and obvious with no special aspects. In addition, defendants argued that they were entitled to summary disposition of plaintiff's PWDCRA claim because he was not "disabled" for purposes of that statute. The trial court granted defendants' motion, ruling that (1) the alleged defect was open and obvious, with no "special aspects", (2) defendants did not owe plaintiff a "special duty" simply because he was using a wheelchair at the time of his injury, (3) defendants did not owe plaintiff a statutory duty to maintain its sidewalk under MCL 125.1361, and (4) plaintiff could not recover under the PWDCRA because he presented no evidence that he qualified as "disabled."
This appeal followed.
II. ANALYSIS
A. STANDARD OF REVIEW
Defendants moved for summary disposition under MCR 2.116(C)(8) and (10), but because the resolution of the motion required consideration of evidence outside the pleadings, this Court will treat the motion as having been decided under MCR 2.116(C)(10). Candler v Farm Bureau Mut Ins Co of Mich, 321 Mich App 772, 776; 910 NW2d 666 (2017). "This Court reviews de novo a trial court's decision on a motion for summary disposition, as well as questions of statutory interpretation." Dextrom v Wexford Co, 287 Mich App 406, 416; 789 NW2d 211 (2010). In evaluating a motion for summary disposition brought under this subsection, a trial court considers the evidence submitted by the parties in the light most favorable to the party opposing the motion. Candler, 321 Mich App at 777. A trial court properly grants a motion brought under MCR 2.116(C)(10) when there is no genuine issue with respect to any material fact and the moving party is entitled to judgment as a matter of law. Dextrom, 287 Mich App at 415-416.
B. PREMISES-LIABILITY CLAIM
The trial court granted defendants' motion for summary disposition, ruling that the defect on which plaintiff fell was open and obvious and without any "special aspects." On appeal, plaintiff argues that the defect was not open and obvious, from his vantage point riding in his wheelchair. In the alternative, plaintiff argues that defendants owed him a "special duty" because he was using a wheelchair at the time of his injury, and that defendants also owed him a statutory duty to maintain its sidewalk under MCL 125.1361. Plaintiff further argues that the defect had several "special aspects."
Because the defect was open and obvious with no "special aspects," and because defendants did not owe plaintiff a "special duty" or a statutory duty to maintain its sidewalks under MCL 125.1361, we conclude that the trial court properly granted summary disposition on plaintiff's premises-liability claim.
1. OPEN AND OBVIOUS DEFECT
"In a premises liability action, a plaintiff must prove the elements of negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff's injury, and (4) the plaintiff suffered damages." Benton v Dart Props Inc, 270 Mich App 437, 440; 715 NW2d 335 (2006). It is undisputed that plaintiff was an invitee to defendants' premises. "In general, a premises possessor owes a duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land." Lugo v Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001). This duty, however, "does not generally encompass removal of open and obvious dangers." Id. Where the dangers are "so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee." Id. (cleaned up). "Accordingly, the open and obvious doctrine should not be viewed as some type of 'exception' to the duty generally owed invitees, but rather as an integral part of the definition of that duty." Id.
"Whether a danger is open and obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection." Hoffner v Lanctoe, 492 Mich 450, 461; 821 NW2d 88 (2012). When considering whether a defect is open and obvious, courts must consider the "objective nature of the condition of the premises at issue." Lugo, 464 Mich at 524. In other words, this is an objective, rather than subjective, standard. See Hoffner, 492 Mich at 461; see also Lugo, 464 Mich at 524.
In this case, the trial court held that the defect on which plaintiff fell was open and obvious. The trial court noted plaintiff's testimony that, although he did not see the defect before he fell, he "definitely" would have seen it if he had been looking at the ground, rather than looking at the building. The trial court also noted plaintiff's testimony that the defect was quite large and that there was nothing obscuring the defect from view, such as grass, leaves, snow, or ice.
This Court's decision in Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710; 737 NW2d 179 (2007), is instructive here. In that case, the plaintiff slipped and fell on grapes and their residue while in a supermarket. Id. at 713. The plaintiff argued that "the crushed grape residue was green and brown in color and that the slipping hazard was therefore inconspicuous against the backdrop of the beige supermarket floor." Id. This Court, however, considered testimony from the plaintiff "that the crushed grapes were readily observable after he slipped and that he and several other people all noticed the existence of the crushed grapes and grape residue once they actually looked at the floor." Id. Because the plaintiff's testimony in Kennedy revealed that "he would have noticed the potentially hazardous condition had he been paying attention," by law, there was no genuine issue of material fact "that the hazard posed by the crushed grapes or grape residue was an open and obvious danger." Id. at 714.
In this case, as in Kennedy, both plaintiff and his friend purportedly failed to see the danger before they encountered the defect and plaintiff suffered injury. Still, as in Kennedy, plaintiff was able to identify the danger in question once he looked at the surface of the ground over which he was traveling. Consequently, as in Kennedy, there is no genuine issue of material fact here that plaintiff "would have noticed the potentially hazardous condition had he been paying attention." Id. Because the danger was open and obvious, defendant had no duty to warn or protect plaintiff from the danger presented by the defect on the surface of its parking lot.
Plaintiff, however, argues that the danger was not open and obvious because he was in a wheelchair and his line of sight was different than that of a person standing upright and walking across a parking lot. This argument ignores the fact that plaintiff was accompanied by his friend who was walking behind and pushing plaintiff in the wheelchair. Plaintiff was not unaccompanied, and he had the benefit of a companion who had a line-of-sight from the customary height of a person who was standing and walking. Given plaintiff's testimony about the size of the defect, it was open and obvious to his companion, as a matter of law.
Furthermore, plaintiff's argument that the defect was not open and obvious to a person in a wheelchair implies that the open-and-obvious nature of the defect should be judged from a plaintiff's subjective viewpoint, rather than from an objective standard. Plaintiff's argument is without merit. "Whether a danger is open and obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection. This is an objective standard, calling for an examination of 'the objective nature of the condition of the premises at issue.' " Hoffner, 492 Mich at 461, quoting Lugo, 464 Mich at 523-524.
In any event, even examining the defect from the perspective of a person riding in a wheelchair, the defect was still open and obvious. Plaintiff admitted that he would have seen the defect—from his position in the wheelchair—if he had been looking at his path of travel. He further admitted that the defect was large, readily observable, and not obscured by anything such as grass, leaves, snow, or ice. Although plaintiff claimed that the defect was less observable because he was traveling down a small hill, the trial court rejected this argument, noting that plaintiff identified the "decline" in the sidewalk as "just a little small hill." The photographs of the defect do not support an argument that the angle of the sidewalk could have obscured what plaintiff described as a "deep crevice" at the bottom of the ramp. Plaintiff described the defect as "quite big," approximately "five inches deep," "more than a foot" wide, and approximately two and a half feet long. Given plaintiff's own testimony that he would have seen the "deep crevice" if he had been looking at his path of travel, the defect was open and obvious.
2. SPECIAL DUTY
Plaintiff next argues that the trial court erred in granting summary disposition to defendants because it ignored the special relationship between a health-care facility and its patients. Plaintiff argues that a health-care provider has a common-law duty to take special precautions and provide special assistance to its patients who move about while on their premises. Therefore, he contends that defendants owed "a higher duty of care to known disabled patients" that it invited onto its premises. Under this higher duty of care, plaintiff argues, the open-and-obvious doctrine does not bar his claim.
The trial court correctly rejected plaintiff's "special duty" argument. The only authority cited by plaintiff relates to medical-malpractice claims, rather than premises-liability claims. Because plaintiff did not allege a medical-malpractice claim in his complaint, this authority is inapplicable. An appellant may not merely assert an error and leave it to this Court to unravel and elaborate his arguments, or discover and rationalize the basis for his claims, and then search for authority to sustain or reject his position. Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998); Yee v Shiawassee Co Bd of Comm'rs, 251 Mich App 379, 406; 651 NW2d 756 (2002). Nor may a party give issues cursory treatment with little or no citation of supporting authority. Silver Creek Twp v Corso, 246 Mich App 94, 99; 631 NW2d 346 (2001). See also Froling v Carpenter, 203 Mich App 368, 372-373; 512 NW2d 6 (1993) (holding that the plaintiffs abandoned an issue by failing to argue in their appellate brief the merits of their allegations of error). Because plaintiff cites no authority to support an argument that the owner of a health-care facility owes a "special duty" to plaintiffs moving about their premises, his argument fails.
3. STATUTORY DUTY
Plaintiff also argues that the open-and-obvious doctrine does not apply to bar a plaintiff's premises-liability claim when a defendant breaches a statutory duty. In support of this claim, plaintiff cites Woodbury v Bruckner, 467 Mich 922; 658 NW2d 482 (2002), amended 666 NW2d 665 (2003); Jones v Enertel, Inc, 467 Mich 266; 650 NW2d 334 (2002); Benton, 270 Mich App 437; and Walker v Flint, 213 Mich App 18; 539 NW2d 535 (1995). An examination of these cases reveals that plaintiff's argument is without merit. Even if defendants had such a statutory duty, it would be irrelevant to plaintiff's premises-liability claim. Instead, plaintiff would be required to plead and establish an independent cause of action for violation of the statutory duty. Although plaintiff's complaint pleaded a cause of action for a purported violation of the PWDCRA, it did not plead a cause of action for violation of MCL 125.1361, the statute on which plaintiff now relies. Furthermore, MCL 125.1361 discusses a duty regarding the design and construction of accessible sidewalks, not a duty to maintain such sidewalks. Thus, on this record, we reject plaintiff's reliance on MCL 125.1361.
Plaintiff did not plead a violation of MCL 125.1361 in his complaint. He only raised the purported applicability of the statute in response to defendants' motion for summary disposition. Plaintiff essentially presents the issue of statutory duty as a defense to the applicability of the open-and-obvious doctrine. In his response to defendants' motion for summary disposition, plaintiff did not create a new claim. Plaintiff simply did not plead in his complaint a cause of action for violation of the alleged statutory duty on which he now relies. The trial court properly rejected plaintiff's arguments that defendants owed him a statutory duty under MCL 125.1361.
4. SPECIAL ASPECTS
Plaintiff next argues that the existence of "special aspects" prevents the open-and-obvious doctrine from barring his claim. The trial court correctly ruled that there were no "special aspects" to the condition on which plaintiff fell. An examination of "special aspects" focuses on the unsafe condition of the defendant's premises before the plaintiff is injured, and does not consider any "special aspects" of the plaintiff himself. Because an ordinary defect in a parking lot is not unreasonably dangerous, and because the defect was not effectively unavoidable, the trial court correctly ruled that no "special aspects" existed in this case.
In Lugo, 464 Mich at 523, the Michigan Supreme Court held that "in resolving an issue regarding the open and obvious doctrine, the question is whether the condition of the premises at issue was open and obvious and, if so, whether there were special aspects of the situation that nevertheless made it unreasonably dangerous." In Hoffner, 492 Mich at 463, the Court further explained, "This Court has discussed two instances in which the special aspects of an open and obvious hazard could give rise to liability: when the danger is unreasonably dangerous or when the danger is effectively unavoidable."
The Lugo Court provided two examples of what might qualify as a "special aspect" that is unreasonably dangerous and effectively unavoidable:
An illustration of such a situation might involve, for example, a commercial building with only one exit for the general public where the floor is covered with standing water. While the condition is open and obvious, a customer wishing to exit the store must leave the store through the water. In other words, the open and obvious condition is effectively unavoidable. Similarly, an open and obvious condition might be unreasonably dangerous because of special aspects that impose an unreasonably high risk of severe harm. To use another example, consider an unguarded thirty foot deep pit in the middle of a parking lot. The condition might well be open and obvious, and one would likely be capable of avoiding the danger. Nevertheless, this situation would present such a substantial risk of death or severe injury to one who fell in the pit that it would be unreasonably dangerous to maintain the condition, at least absent reasonable warnings or other remedial measures being taken. In sum, only those special aspects that give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided will serve to remove that condition from the open and obvious danger doctrine. [Lugo, 464 Mich at 518-519.]
In this case, the trial court correctly ruled that no "special aspects" existed which removed the defect on which plaintiff fell from the open-and-obvious doctrine. First, "potholes in pavement are an 'everyday occurrence' that ordinarily should be observed by a reasonably prudent person" and do not "pose an unreasonable risk." Id. at 523. Second, given plaintiff's own deposition testimony that he had used other entrances to access defendants' clinic and that he had used the back entrance to the clinic on a prior visit without encountering the defect, it cannot be said that the defect was "effectively unavoidable."
An "effectively unavoidable" hazard must truly be, for all practical purposes, one that a person is required to confront under the circumstances. A general interest in using, or even a contractual right to use, a business's services simply does not equate with a compulsion to confront a hazard and does not rise to the level of a "special aspect" characterized by its unreasonable risk of harm. [Hoffner, 492 Mich at 472-473 (citations omitted).]
Plaintiff argues that the defect was "effectively unavoidable" because he was in a wheelchair on the day in question, and that he was therefore compelled to use the wheelchair ramp, which he was not compelled to use on prior visits to the clinic. As a factual matter, plaintiff's claim is unsupported. Plaintiff testified that he had visited the clinic on prior occasions and that the security guard employed by defendants had come out to his vehicle with a wheelchair and pushed him inside the clinic through the front entrance, which did not require use of the ramped sidewalk at which the defect existed. Furthermore, plaintiff testified that he had previously entered the clinic through the back entrance, and that he had been able to enter the clinic without needing to cross the area where the defect existed. For these reasons, the defect was not unavoidable.
On appeal, plaintiff argues that the fact that he was being pushed in a wheelchair qualifies as a "special aspect." Plaintiff argues that his line of sight was different than an ordinary person's line of sight and that he was unable to avoid the same hazards that persons not in wheelchairs are able to avoid. This argument is without merit. To determine whether "special aspects" exist, a court must look at the "condition of the premises at issue," not at any subjective consideration particular to the plaintiff. Lugo, 464 Mich at 523-524. And, as noted earlier, plaintiff's friend and companion was pushing his wheelchair when plaintiff was injured. The line of sight of plaintiff's friend was no different than any other person of ordinary height who was walking down a sidewalk or across a parking lot.
Plaintiff next argues that the fact that the wheelchair was being moved toward a vehicle intersection down a slope created a "special aspect" that removes the defect from the open and obvious doctrine. The trial court rejected this argument, stating:
Finally, Plaintiff argues that the impending transition into a parking lot was a barrier to the obvious nature of the defect. However, Plaintiff did not testify that he was concerned about traffic or looking for oncoming cars. He testified that he was looking at the building.Because plaintiff provided no testimony or evidence that he was concerned about traffic or oncoming cars, but only testified that he failed to notice the defect because he was looking at the building, rather than the surface on which he was traveling, he has failed to demonstrate a genuine issue of material fact, and his argument has no merit.
Given the uncontroverted testimony, the Court finds that the pothole was open and obvious.
C. PWDCRA CLAIM
Finally, plaintiff argues that defendants violated the PWDCRA because they failed to abide by their statutory duty to "accommodate a person with a disability for purposes of . . . public accommodation." MCL 37.1102(2). The trial court held that plaintiff failed to establish that he was "disabled" for purposes of the PWDCRA. Assuming, without deciding, that plaintiff was "disabled" within the meaning of the statute, we nonetheless conclude that the trial court properly granted summary disposition of plaintiff's claim because "no language in the [PWDCRA] provides an independent tort remedy for persons injured at a place of public accommodation because they are handicapped." Spagnuolo v Rudds #2, Inc, 221 Mich App 358, 363; 561 NW2d 500 (1997). Therefore, even assuming that plaintiff had a "disability" under the statute, he could not pursue a claim simply because he was injured on defendants' property because of that disability. See id. Rather, plaintiff could only establish a claim under the PWDCRA if he was denied a public accommodation on account of a disability covered by the statute.
Based on the facts of this case, plaintiff has failed to raise a genuine issue of material fact that he was denied a public accommodation on account of a disability. In his complaint, plaintiff alleged only that defendants denied him the ability to enter the clinic for medical treatment. Plaintiff alleged that defendants had a "duty to allow full access and full accommodation to the Plaintiff to be allowed to enter its health care facility using a wheel chair without undue hazard and thus have equal and reasonable access to enter the establishment and enjoy the full and equal services of the Defendants' business, with and through the use of his wheel chair" (emphasis added). Plaintiff further alleged that he "had the right to enter" and visit defendants' premises, despite his purported status as a disabled person, and that defendants, "through the failure to maintain its entry ramps to its facility from the parking area knowingly allowed the discriminatory access to its health care facilities and thus refused to grant full and public accommodation to the wheel chair using Plaintiff" (emphasis added).
At his deposition, plaintiff initially claimed that he fell while attempting to enter defendants' clinic. This claim, however, was inconsistent with plaintiff's repeated argument that he fell while traveling down the ramped sidewalk. Based on the photographs of record, if plaintiff had been attempting to enter the facility, he would have encountered the defect before traveling up the ramped sidewalk. Furthermore, when confronted with medical records indicating that his blood was drawn inside the clinic and that he fell while leaving the facility after he received treatment, plaintiff stated that he did not recall whether he fell while entering or exiting the clinic.
In support of their motion for summary disposition, defendants argued that they did not fail to accommodate a person with a disability because medical records confirmed that plaintiff entered the clinic, received medical treatment as usual, and his fall occurred while he was returning to his vehicle in the parking lot. In his response to defendants' motion, plaintiff appears to have abandoned his argument that defendants failed to accommodate his disability by preventing him from entering the clinic, arguing that it was "irrelevant whether the incident occurred on his way to or from his receipt of medical treatment." Because plaintiff has abandoned his claim that he was denied entry to defendants' clinic for medical treatment, he has failed to raise a genuine issue of material fact that he was denied a public accommodation on account of a disability.
Affirmed. Defendants, having prevailed in full, may tax costs under MCR 7.219(F).
/s/ Michael J. Riordan
/s/ Karen M. Fort Hood
/s/ Brock A. Swartzle