COA 372956 DEBRA ACEVES V WESTERS FAMILY VINEYARD AND WINERY LLC Opinion - Per Curiam - Unpublished 12/23/2025

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
DEBRA ACEVES and ALFONSO ACEVES,
Plaintiffs-Appellants,
UNPUBLISHED
December 23, 2025
12:16 PM
v No. 372956
Jackson Circuit Court
WESTERS FAMILY VINEYARD AND WINERY
LLC and BLACK BARN VINEYARD AND
WINERY LLC,
LC No. 23-002452-NO
Defendants-Appellees.
Before: K. F. KELLY, P.J., and MARIANI and ACKERMAN, JJ.
ACKERMAN, J. (dissenting).
In this premises liability case, the majority concludes that plaintiff failed to create a genuine
issue of material fact as to breach because she did not provide sufficient evidence that the gap in
the stair tread that she tripped on posed an unreasonable risk of harm. I respectfully disagree.
Because plaintiff presented evidence from which a reasonable juror could conclude that defendants
exposed her to an unreasonable risk of harm, summary disposition was improper, and I would
reverse.
As the majority explains, plaintiff Debra Aceves attended a wedding at a barn venue owned
and operated by defendants Westers Family Vineyard and Black Barn Vineyard. The venue has
two levels connected by wooden stairs, and the tread of each step consists of two boards separated
by a gap of approximately ⅛ to ¼ of an inch. Plaintiff was wearing high-heeled shoes when she
began descending the stairs and fell, sustaining serious injuries. She alleged that her heel became
caught in the gap in one of the stair treads and that the condition posed an unreasonable risk of
harm to invitees, particularly those wearing high-heeled shoes. The trial court granted summary
disposition to defendants, and the majority affirms, concluding that plaintiff cannot establish that
defendants breached a duty owed to her. I respectfully disagree.
It is well established that “[a]ll negligence actions, including those based on premises
liability, require a plaintiff to prove four essential elements: duty, breach, causation, and harm.”
Kandil-Elsayed v F & E Oil, Inc, 512 Mich 95, 111; 1 NW3d 44 (2023). In premises liability cases

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involving invitees, “[t]he possessor of land has a duty to exercise reasonable care to protect invitees
from an unreasonable risk of harm caused by a dangerous condition of the land.” Williams v
Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418 NW2d 381 (1988). Applying these
principles at the summary disposition stage requires careful attention to the proper division of
responsibility between the court and the jury:
While the court decides questions of duty, general standard of care and proximate
cause, the jury decides whether there is cause in fact and the specific standard of
care: whether defendants’ conduct in the particular case is below the general
standard of care, including—unless the court is of the opinion that all reasonable
persons would agree or there is an overriding legislatively or judicially declared
public policy—whether in the particular case the risk of harm created by the
defendants’ conduct is or is not reasonable. [Moning v Alfono, 400 Mich 425, 438;
254 NW2d 759 (1977) (footnote omitted).]
Here, there is no dispute over whether defendants owed plaintiff a duty (they did) or over whether
plaintiff suffered harm (she did). Moreover, the majority and I agree that plaintiff can show there
is a genuine issue of material fact as to causation. The sole question is whether plaintiff has a jury-
submissible issue as to breach.
Under Moning, a breach occurs when “defendants’ conduct in the particular case is below
the general standard of care.” Id. The general standard of care here is straightforward: Defendants
were required “to exercise reasonable care to protect [plaintiff] from an unreasonable risk of harm
caused by a dangerous condition of the land.” Williams, 429 Mich at 499. This issue must be
submitted to the jury unless “all reasonable persons would agree or there is an overriding
legislatively or judicially declared public policy.” Moning, 400 Mich at 438. There is no assertion
that any overriding public policy controls this situation, so the question is whether all reasonable
persons would agree. I am not convinced that all reasonable persons would agree and therefore
conclude that the issue should be submitted to a jury.
Defendants operated a wedding venue and could reasonably expect that many invitees
would wear high-heeled shoes. Stairs with gaps in their treads pose a particular risk to such
footwear. Plaintiff testified that she fell after her shoe got stuck while descending the stairs, and
her shoe was damaged in a manner consistent with that account. From this evidence, a reasonable
juror could conclude that “defendants’ conduct . . . [was] below the general standard of care,” such
that “the risk of harm created by the defendants’ conduct . . . [was] not reasonable.” Id. That is
sufficient to survive summary disposition.
The fundamental locus of disagreement between me and the majority is whether plaintiff
presented evidence from which a reasonable jury could conclude that the risk was an unreasonable
one. The majority claims that “plaintiff presented no evidence from which a factfinder could
conclude that the gap between the boards posed an unreasonable risk of harm.” In doing so, it
relies on Bertrand v Alan Ford, Inc, 449 Mich 606; 537 NW2d 185 (1995), which it reads to
recognize that “ ‘ordinary steps’ do not pose an unreasonable risk of harm simply because they are
not ‘foolproof.’ ” But Bertrand is no longer reliable authority for that proposition. When it was
decided, the Supreme Court treated the open and obvious nature of a condition as part of the duty
inquiry. The Court stated that “the overriding public policy of encouraging people to take

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reasonable care for their own safety precludes imposing a duty on the possessor of land to make
ordinary steps ‘foolproof,’ ” but “where there is something unusual about the steps, . . . the duty of
the possessor of land to exercise reasonable care remains.” Id. at 616-617 (emphasis added).
Although Bertrand elsewhere spoke in terms of breach and the unreasonableness of the risk of
harm, see, e.g., id. at 614, that doctrinal ambiguity is precisely why the Supreme Court later
observed that Bertrand “mudd[ied] the waters between duty and breach.” Kandil-Elsayed, 512
Mich at 123. Reliance on Bertrand therefore leads the majority astray.
After Kandil-Elsayed, categorical distinctions such as whether steps are “ordinary” or
“unusual” no longer control the analysis in a system governed by comparative fault. The governing
principle is simply “the traditional duty owed to invitees: the ‘duty to exercise reasonable care to
protect [them] from an unreasonable risk of harm caused by a dangerous condition of the land.’ ”
Id. at 143, quoting Williams, 429 Mich at 499. Categorical distinctions about the condition of the
land do not alter this duty, and once a duty exists, plaintiff need only show that a reasonable juror
could find that it was breached. “The trier of fact decides whether reasonable precautions have
been taken and thereby establishes the specific standard of care.” Moning, 400 Mich at 448 n 27.
I therefore disagree with the majority’s suggestion that plaintiff was required to “present[]
evidence that the gap between the boards was designed abnormally or defectively, or that it would
be standard practice to take protective measures with respect to the gap in light of defendants’
operation as a wedding venue.” A court may remove the issue of breach from the jury only if no
reasonable juror could conclude that defendants acted unreasonably or that defendants were more
at fault than plaintiff. Plaintiff clears that threshold. Contrary to the majority’s assertion that
“there is no evidence from which a factfinder could infer that the mere presence of a gap poses an
unreasonable risk of harm,” the gaps here were located in stair treads at a commercial wedding
venue operated by defendants. A reasonable juror could conclude that stairs containing gaps of
sufficient size to catch a high-heeled shoe posed an unreasonable risk of harm under those
circumstances—particularly given the foreseeable use of the stairs by guests wearing such
footwear and the heightened danger posed by a fall on stairs due to the change in elevation.
I also disagree that there is any risk of speculation as to this element of plaintiff’s
negligence action. Under Moning, the court instructs the jury as to the general standard of care,
and the jury decides whether the defendant’s conduct fell below it. That is a value judgment.
[A] major role for juries in negligence cases is to evaluate the facts to determine
whether the defendant was negligent, whether his conduct was a legal cause of the
plaintiff’s harm, and the amount of damages. The value judgments entailed are
quite different from the determination of historical facts. If the plaintiff claims
injury resulting when, on a dark night, she bumped into a face-level box attached
to a utility pole, the jury must first determine whether defendant attached such a
box to the pole, how high it was, and whether the plaintiff in fact bumped into it.
Those are questions of historical fact. Once those historical facts are determined,
the jury must go further and decide whether the defendant’s conduct amounted to
the negligent creation of an unreasonable risk. For this there is no conclusive legal
guide except the standard of the reasonable and prudent person. It is the jury’s job
to make a judgment whether the defendant’s conduct met that standard. [1 Dobbs,

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Hayden & Bublick, Torts (2d ed), § 163, p 525 (emphasis added; footnotes
omitted).]
While courts must guard against inviting juries to speculate as to historical facts, I am aware of no
authority—and the majority cites none1—suggesting that “speculation” is a concern when juries
make the normative judgment as to whether a risk was unreasonable. The only question is whether
a reasonable juror could conclude that the dangerous condition posed an unreasonable risk of harm.
Although “[t]he mere occurrence of plaintiff’s fall is not enough to raise an inference of negligence
on the part of defendant,” Stefan v White, 76 Mich App 654, 661; 257 NW2d 206 (1977), the only
inference plaintiff asks the jury to draw is whether her shoe heel was caught in the stair tread,
rather than that she tripped for some other reason.
To say that a reasonable juror could find breach is not to say that they must. A jury might
well find that plaintiff bore greater responsibility for her injury by choosing to navigate rustic
wooden stairs in high-heeled shoes or by failing to observe the condition of the stair treads. That
might even be my own assessment were I sitting as a juror. But that is not the role of this Court at
summary disposition. That judgment belongs to a jury of Jackson County residents, because “the
jury’s judgment of what is reasonable under the circumstances of a particular case is more likely
than the judicial judgment to represent the community’s judgment of how reasonable persons
would conduct themselves.” Moning, 400 Mich at 436.
Because plaintiff presented evidence from which reasonable minds could differ on whether
defendants breached their duty, summary disposition was improper. I would reverse and remand,
and I respectfully dissent.
/s/ Matthew S. Ackerman
1 The cases cited by the majority involve speculation as to historical facts, not normative judgments
about the reasonableness of a risk. In Skinner v Square D Co, 445 Mich 153, 173; 516 NW2d 475
(1994), the “[p]laintiffs’ expert testimony did not sufficiently establish causation.” In Stefan v
White, 76 Mich App 654, 661; 257 NW2d 206 (1977), the “plaintiff’s husband did not see [her
fall],” and while he submitted an affidavit suggesting that she tripped on a metal strip, “[o]nly
conjecture” supported that conclusion. And in Meisner Law Group PC v Weston Downs Condo
Ass’n, 321 Mich App 702, 720; 909 NW2d 890 (2017), the “plaintiff . . . could not create a question
of fact, that its claim . . . could exceed the $25,000 jurisdictional limit of the circuit court,” i.e., the
historical fact of damages.

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