Notice is a common issue in premises liability litigation. If someone is injured on another’s property, the owner is not liable for the injury unless he had notice—whether actual or constructive—of the defect that caused the injury. In Grandberry-Lovette v Garascia, __ Mich App __ (Jan. 2, 2014) (Docket No. 311668), the Court of Appeals grappled with the standard for constructive notice. Relying on the defendant’s unique knowledge of construction (he was a licensed residential builder for 20 years) and masonry, the majority held that he had constructive knowledge of a defective brick despite the fact that the defect was not visible. The dissent, however, cautioned against the application of the majority’s published decision to other property owners, stating that Michigan law does not require property owners to be “meteorologically clairvoyant about masonry.
Charlotte Grandberry-Lovette was injured on Mark Garascia’s property when a brick step “crumbled” under her foot. Garascia, who had been a licensed residential builder for 20 years and had experience as a bricklayer, had repaired the steps 9 to 18 months earlier. But he testified that he knew that the thaw and frost common in Michigan could cause the bricks to come loose again. So he visually inspected the steps when he visited the property—typically in the Spring and Summer.
Grandberry-Lovette sued Garascia after her injury. He moved for summary disposition, arguing that the condition was either open and obvious, so he had no duty to warn her, or he did not have notice of it, so he couldn’t warn her. The trial court agreed that there was no evidence that he knew or should have known of the defect and granted summary disposition in Garascia’s favor.
The Court of Appeals majority reversed. Emphasizing Garascia’s testimony that he knew that Michigan’s climate could cause the bricks to deteriorate and the only way to discover a defect in the brickwork was to “wiggle them,” the majority held that his visual inspection was not enough to dispel the notion that he “should have known” about the defective brick. In other words, the issue was whether Garascia had constructive knowledge of the defect and the majority, relying on his own testimony and unique knowledge of masonry, concluded that there was a question of fact on that issue.
Judge O’Connell dissented, expressing concern that the majority had invented “a novel duty that requires premises possessors to predict when and whether Michigan weather might cause decorative bricks to loosen.” He would have affirmed the trial court’s judgment in Garascia’s favor because there was no evidence that the bricks routinely came loose. He also rejected the notion that Garascia would have constructive knowledge of every defect in the steps merely because he had repaired them once in the past.
Practice Tip: Grandberry-Lovette did not re-write Michigan law on notice in premises liability cases. Rather, it can (and should) be fairly limited to its unique facts. The majority opinion emphasized the defendant’s unique knowledge about how defects in brickwork can develop and how to inspect for them. It can be distinguished on those points and should not be read to require every property owner to physically inspect every brick on their property. The majority also stated that the defect did not develop “within such a short period of time that, even with a reasonable inspection regime, [Garascia] would not have discovered” the defect. Accordingly, Grandberry-Lovette has no bearing on defects that form in a short period of time, e.g., ice, and it does not intrude on Michigan’s long-standing view that property owners are not required to comb every inch of their property at all times of day to discover defects or dangers.