Alleged elevator malfunction; Premises liability; Dangerous condition; Notice of the condition; Possession & control of the premises; Product liability; Statute of repose; MCL 600.5839(1); “Improvement to real property”; Pendzsu v Beazer E, Inc; Waiver of arguments; Negligence; Breach of duty; Failure to warn; MCL 600.2948(2)

The court held as to plaintiffs’ premises liability claims against defendant-Greektown Casino that they (1) failed to show that the elevator at issue was defective and (2) there was no genuine issue of material fact that the casino lacked “actual or constructive notice of any alleged defect.” As to defendant-Otis Elevator, MCL 600.5839(1) barred plaintiffs’ claims for negligent “production and design and gross negligence.” Further, their negligence claim failed because they did not establish a question of fact as to breach of duty, and their failure to warn claim failed because Otis did not owe them a duty to warn. Finally, their premises liability claim against it failed because the casino, “not Otis, had possession and control of the premises at the time of the” incident. Thus, the court affirmed summary disposition for both defendants. It first noted that the “mere fact that plaintiffs were injured does not establish that the elevator was defective. The surveillance video” showed the elevator doors opened and passengers exited before plaintiff-Joel stepped inside “without incident. The surveillance video further reflects that the elevator doors were closing as” plaintiff-Marilyn approached “and before she entered the threshold. As the doors were closing, Marilyn stepped between them, resulting in contact with the doors as they closed. The doors opened after the contact, and remained fully open for approximately 24 seconds.” Plaintiffs did not “present any evidence establishing that Marilyn’s contact with the door was because the elevator was defective, as opposed to operating normally.” In addition, plaintiffs did not offer sufficient evidence that the casino “knew or should have known that riders of the elevator risked injury on the date of the incident.” As to the claims against Otis, the court rejected plaintiffs’ argument that the relevant statute of repose did not apply, concluding that in light of their admissions, they “waived any argument that their claims for negligent production and design and gross negligence are barred by the statute of repose.” Further, as to the negligence claim, there was “no evidence that the elevator malfunctioned after Otis completed its work” on the elevator before the incident. And as to the failure to warn claim, it “is common knowledge that an elevator’s doors may continue to close even when someone is in the way. It is also common knowledge that an elevator’s doors will close with enough force to cause harm to a person.”