If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
JOSHUA DAVID BRIERLEY, UNPUBLISHED
June 22, 2023
Plaintiff-Appellant,
v No. 362016
Wayne Circuit Court
TIMOTHY SAVAS and DOROTHY SAVAS, LC No. 21-005139-NO
Defendants-Appellees.
Before: LETICA, P.J., and BORRELLO and RIORDAN, JJ.
BORRELLO, J. (dissenting).
The majority concludes that plaintiff could not establish causation because, at his
deposition, he changed his theory of causation “from slipping on the wet grass to losing his balance
because of the hole in the ground.” Further, the majority concludes that plaintiff did not provide
any evidence beyond mere speculation that there was a hole in the ground. However, at his
deposition and after discussing the alleged hole and uneven ground, plaintiff testified as follows:
Q. And what exactly happens as you’re pushing the lawn mower?
A. Between the uneven ground and the wet grass I kind of slipped, and my
body weight just kind of like shoved me and my foot went underneath the lawn
mower.
Hence, while plaintiff unquestionably testified that other factors may have played a role in
causing his feet to slip from beneath him, he never abandoned his initial contention that his fall
was due, at least in part, to the wet grass. Because I do not share the majority’s view of plaintiff’s
testimony negating his cause of action in this matter, I respectfully dissent.
This Court has previously explained:
Deposition testimony damaging to a party’s case will not always result in summary
judgment. However, when a party makes statements of fact in a ‘clear, intelligent,
unequivocal’ manner, they should be considered as conclusively binding against
him in the absence of any explanation or modification, or of a showing of mistake
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or improvidence. The purpose of GCR 1963, 117 [now part of MCR 2.116] is to
allow the trial judge to determine whether a factual issue exists. This purpose is
not well served by allowing parties to create factual issues by merely asserting the
contrary in an affidavit after giving damaging testimony in a deposition. [Dykes v
William Beaumont Hosp, 246 Mich App 471, 480-481; 633 NW2d 440 (2001)
(quotation marks and citations omitted; alteration in original).]
It is evident from plaintiff’s deposition that he claimed to have fallen as the result of both
the slippery, wet grass and the nature of the terrain that was uneven and contained a hole. Plaintiff
specifically testified in his deposition that he observed that the grass was wet when he arrived to
mow the lawn, that the yard was “a hill,” and that he told defendant Timothy Savas, “Hey, I don’t
think it’s a good idea [to mow the yard].” Even accepting that plaintiff’s testimony regarding the
existence of a hole or uneven terrain where he fell was speculative, there remains his testimony
about the existence of wet grass and that he slipped on wet grass.
I would conclude that plaintiff’s deposition testimony is fairly understood as providing
clarification that he believed there was a hole or uneven terrain—in addition to the wet grass—
that contributed to his fall. Thus, he is not somehow bound solely to his claim about the hole or
uneven ground as an exclusive theory of causation and he cannot be deemed to have somehow
waived his theory about the wet grass. Id. Yet, this is essentially what the majority concludes. To
support its position, the majority selects statements from plaintiff’s deposition and engages in what
I believe to be impermissible fact finding in order to negate plaintiff’s testimony about his fall
being caused be the wet grass he observed. See Innovative Adult Foster Care, Inc v Ragin, 285
Mich App 466, 480; 776 NW2d 398 (2009) (stating that a court “may not weigh the evidence or
make determinations of credibility when deciding a motion for summary disposition”). Viewing
the evidence in the light most favorable to the nonmoving party, there exists a question of fact
regarding causation.
Additionally, this case implicates our Supreme Court’s holding in Estate of Livings v
Sage’s Investment Group, LLC, 507 Mich 328, 333; 968 NW2d 397 (2021), that “an open and
obvious condition can be deemed effectively unavoidable when a plaintiff must confront it to enter
his or her place of employment for work purposes.” The Supreme Court explained:
[T]he overall analysis centers on whether a reasonable premises possessor in the
defendant’s circumstances could reasonably foresee that the employee would
confront the hazard despite its obviousness. The premises possessor can expect
that the employee will act reasonably. It follows that the employee’s circumstances
are relevant only to the extent they conform to an objectively reasonable standard.
Put differently, the employee’s decision to confront the hazard to enter his or her
workplace is considered under an objective standard.
This standard’s application will depend on the facts of the case, but the key
is whether alternatives were available and would have been used by a reasonable
person in the employee’s circumstances. If an employee could have avoided the
condition through the use of due care under the circumstances, then the condition
was not effectively unavoidable. For example, an employee might be able to avoid
a hazard by taking a different path to work. Another consideration is whether the
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employee would need to breach the employer’s policies in order to avoid the
condition and what the consequences of that breach might be. What a court cannot
conclude, however, is that a hazard was avoidable simply because the employee
could have elected to skip work or breach other requirements of his or her
employment. [Id. at 346-347 (citations omitted).]
At plaintiff’s deposition in this case, the following exchange occurred:
Q. If you initially thought it was dangerous and wasn’t going to be good
like you said earlier, why did you stay and cut the grass?
A. He almost forced me to do it.
Q. And how is that?
A. Mr. Savas, I mean, he was so hot – that guy, he’s a special individual,
I’ll tell you that, to say the least, and he just kind of was like, “You have to do it,”
like, “I have people coming over.” There was no – there was no saying no to that
guy, no can I come back later, no can I come back tomorrow.
Q. Did he threaten you in any way?
A. Sort of, yes.
Q. How so?
A. “You have to do this otherwise” – almost like, “or else you’re not going
to be able to cut my yard again.”
Q. Did he threaten you personally with anything other than not being able
to cut his grass again?
A. No. No. Nothing like that but, like, yeah.
Here, the trial court found that the condition was open and obvious, but it did not address
whether there was a question of fact that it was effectively unavoidable under Estate of Livings. I
would hold that the trial court do so on remand.
For these reasons, I respectfully dissent and would remand the matter to the trial court with
instructions to conduct further proceedings consistent with this opinion.
/s/ Stephen L. Borrello
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