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STATE OF MICHIGAN
COURT OF APPEALS


SELINA R. HENDERSON, Plaintiff-Appellant, v VOLPE-VITO, INC., d/b/a FOUR BEARS WATER PARK, Defendant-Appellee.

UNPUBLISHED June 27, 2006

No. 266515 Macomb Circuit Court LC No. 04-003387-NO

Before: Whitbeck, C.J., and Zahra and Donofrio, JJ. PER CURIAM. In this premises liability case, plaintiff appeals by right an order granting defendant summary disposition pursuant to MCR 2.116(C)(10). We affirm. I. Basic Facts and Procedure Plaintiff, the owner of a small business, decided to sponsor a client/employee picnic at defendant's commercial recreation park. Plaintiff contracted with defendant for use of a picnic area, a tent, tables, and a grille. On July 19, 2003, the day of the picnic, plaintiff arrived at the assigned area and discovered the area heavily littered with what she thought were dog feces but which were actually goose feces. Plaintiff, family members and guests cleaned the area after a park employee failed to do so adequately. Plaintiff, who was several months pregnant at the time of the picnic, sought emergency treatment on or about August 4 for a high fever and was admitted to Providence Hospital the following day. While still in the hospital, her child was born August 23, several months premature,1 and she as discharged on August 27. A bone-marrow analysis of the plaintiff revealed the presence of histoplasmosis.2 Plaintiff was twice more hospitalized that year for

1 2

No injury to the child is alleged or at issue this case.

A disease caused by inhaling spores from fungus that grows in soil enriched by bird or bat droppings.

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extended stays. Plaintiff said she is under continued treatment for histoplasmosis and experiences ongoing fatigue, flaring of her lymph glands and had to close her business. In dismissing plaintiff's complaint, the trial court determined that defendant did not know and had no reason to discover that fungus spores existed on defendant's property that could cause harm to plaintiff. Therefore, the trial court concluded defendant did not owe plaintiff a duty to protect her against inhaling the fungus spores and the resulting harm. II. Analysis On appeal, plaintiff claims, inter alia, that defendant owed her a duty to protect her against the condition of having the spores on his land. We disagree. 1. Standard of Review This Court reviews de novo a trial court's decision whether to grant summary disposition. Devillers v Auto Club Ins. Ass'n, 473 Mich 562, 567; 702 NW2d 539 (2005). Under MCR 2.116(C)(10), a motion for summary disposition tests the factual support of the claim. Hazle v Ford Motor Co, 464 Mich 456, 461; 628 NW2d 515 (2001). When deciding a motion pursuant to MCR 2.116(C)(10), this Court must consider "the affidavits, together with the pleadings, depositions, admissions, and documentary evidence then filed in the action or submitted by the parties . . .." MCR 2.116(G)(5). See Auto Club Group Ins. Co. v. Daniel, 254 Mich App 1, 3; 658 NW2d 193 (2002). "A trial court may grant a motion for summary disposition . . . if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law." Karbel v Comerica Bank, 247 Mich App 90, 97; 635 NW2d 69 (2001). 2. Defendant Did Not Owe Plaintiff A Duty To Protect Her From Fungus Spores The threshold question in a negligence action is whether the defendant owed a duty to protect the plaintiff against the condition that caused the harm. Fultz v Union-Commerce Assocs., 470 Mich 460, 463; 683 NW2d 587 (2004). "It is axiomatic that there can be no tort liability unless defendants owed a duty to plaintiff." Beaty v Hertzberg & Golden, PC, 456 Mich 247, 262; 571 NW2d 716 (1997). Initially, we resolve plaintiff's argument

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