Memo

To: Prof. Lauderman

From: Alex Damer

Re: Alverez v Lifetime BRIEF

Date: February 6, 2018

Name of case and citation: No. 328221. Oakland Circuit Court. LC No. 2014-140282-NO.

Facts: Plaintiff (David Alverez) went to a Lifetime Fitness Center in Novi, Michigan. Upon
arriving, the plaintiff and his family went rock climbing. The defendant (Karina Montes
Agredano) assisted the family with harnessing in preparation for rock climbing. Because the
Plaintiff’s harness was improperly used, he fell and suffered multiple injuries. According to the
plaintiffs, the defendant (Agredano) was very close by while Alverez had the harness on. The
defendant also helped David Alverez put the harness on, and watched him climb up the rock
climbing wall while wearing the harness incorrectly. In addition, Mrs. Alverez states that when
Mr. Alverez asked how to get down, the defendant responded, “just let go, and it will bring you
down.”

Issue: Was Karina Montes Agredano grossly negligent?

Rules: MCR 2.116(C)(10): When considering a motion for summary disposition, a court must
view the evidence submitted in the light most favorable to the party opposing the motion.
Summary disposition is appropriate if there is no genuine issue regarding any material fact and
the moving party is entitled to judgment as a matter of law. A genuine issue of material fact
exists when the evidence submitted might permit inferences contrary to the facts as asserted by
the movant. When entertaining a summary disposition motion under Subrule (C)(10), the court
must view the evidence in the light most favorable to the nonmoving party, draw all reasonable
inferences in favor of the nonmoving party, and refrain from making credibility determinations
or weighing the evidence. [Id. at 557-558, quoting Dillard v Schlussel, 308 Mich App 429, 444-
445; 865 NW2d 648 (2014) (quotation marks omitted).]

Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003) (citations omitted): To establish a
claim for gross negligence, it is incumbent on a plaintiff to demonstrate that the defendant acted
or engaged in “conduct so reckless as to demonstrate a substantial lack of concern for whether an
injury results.”

Woodman v Kera, LLC, 280 Mich App 125, 152; 760 NW2d 641 (2008), aff’d 486 Mich 228
(2010): “Evidence of ordinary negligence is insufficient to create a material question of fact
regarding the existence of gross negligence…The issue of gross negligence may be determined
by summary disposition only where reasonable minds could not differ.”
Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004): “Simply alleging that an actor
could have done more is insufficient under Michigan law, because, with the benefit of hindsight,
a claim can always be made that extra precautions could have influenced the result.”

Analysis: The defendant (Karina Montes Agredano) was grossly negligent; therefore, the court
should not have granted the motion for a summary of disposition. According to MCR
2.116(C)(10), “When entertaining a summary disposition motion, the court must view the
evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in
favor of the nonmoving party, and refrain from making credibility determinations or weighing
the evidence.” With that being said, everything the plaintiffs say happened, should be considered
true because the plaintiffs are the nonmoving party.

This means that the plaintiffs’ claims that the defendant was close in proximity to David Alverez
(a plaintiff), helped Mr. Alverez put the harness on, watched Mr. Alverez climb the wall while
wearing the harness incorrectly, and told Mr. Alverez to let go are considered truthful.

Under, Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003), to establish a claim for gross
negligence, it is incumbent on a plaintiff to demonstrate that the defendant acted or engaged in
“conduct so reckless as to demonstrate a substantial lack of concern for whether an injury
results.” The conduct of the defendant demonstrated a lack of concern for whether an injury
results. The defendant was involved in helping Mr. Alverez put the harness on, which
emphasizes gross negligence, as the defendant should have correctly put the harness on the first
time. Not only did the defendant help the plaintiff put the harness on incorrectly, but he
defendant was also close enough distance to observe David Alverez and ensure that the harness
was utilized correctly, but she didn’t. Moreover, the defendant told Mr. Alverez to “let go” in
order to get down, which was followed by Alverez falling. The defendant was not reasonable in
her conduct to ensure the safety of the plaintiffs.

In addition, Woodman v Kera, LLC, 280 Mich App 125, 152; 760 NW2d 641 (2008), aff’d 486
Mich 228 (2010) states that the issue of gross negligence may be determined by summary
disposition only where reasonable minds could not differ. It is clear that a reasonable mind could
potentially differ to the summary of disposition, as Agredano’s conduct demonstrated a lack of
concern for potential injury. Thus, this case does not “simply allege that an actor could have
done more” which is insufficient under Michigan Law, according to Tarlea v Crabtree, 263
Mich App 80, 90; 687 NW2d 333 (2004).

With these laws working in conjunction, the plaintiff’s claims are considered truthful based on
MCR 2.116(C)(10). For a case with the issue of gross negligence to be determined by summary
of disposition, a reasonable mind could not differ, per Woodman v Kera, LLC, 280 Mich App
125, 152; 760 NW2d 641 (2008), aff’d 486 Mich 228 (2010). Because the plaintiff’s claims are
considered true, it is understood that the defendant was grossly negligent by, definition, under Xu
v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003). Therefore, a reasonable mind could
differ from a summary of disposition. Also, the case does not “simply allege that an actor could
have done more” which is insufficient under Michigan Law, according to Tarlea v Crabtree, 263
Mich App 80, 90; 687 NW2d 333 (2004). The defendant was grossly negligent and, for that
reason, the motion for a summary of disposition should not have been granted.
Conclusion: Yes.