Koch-Gulotty v. R.L. Morgan Company d/b/a Gill-Roy's Hardware
Filing
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ORDER Granting 18 Motion for Summary Judgment and Dismissing Complaint. Signed by District Judge Thomas L. Ludington. (KWin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JUDY KOCH-GULOTTY,
Plaintiff,
v
Case No. 18-11631
Honorable Thomas L. Ludington
R.L. MORGAN COMPANY,
Defendant.
__________________________________________/
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT AND DISMISSING
COMPLAINT
On May 23, 2018, Plaintiff Judy Koch-Gulotty filed a complaint against Defendant R.L.
Morgan Company, a hardware store. ECF No. 1. Plaintiff alleges that while on Defendant’s
premises she was “severely injured when she tripped and fell due to a lawn edger that was sticking
out into an aisle in an extremely unsafe manner.” Id. at 2. On March 5, 2019, Defendant filed a
motion for summary judgment. ECF No. 18. For the following reasons, Defendant’s motion will
be granted.
I.
According to Plaintiff, on or about July 4, 2017, Plaintiff entered Defendant’s store. ECF
No. 1 at 2. Defendant’s employee, Adam Podboy, greeted Plaintiff and led her down the store’s
main aisle to help her locate an item. ECF No. 20 at 1. While walking down the main aisle, Mr.
Podboy turned left down an aisle that intersected the main aisle perpendicularly. Id. Plaintiff
followed Mr. Podboy and tripped on a lawn edger “that was sticking out into the aisle.” Id. at 2.
Plaintiff claims that her encounter with the edger left her with a wounded ankle and a “meniscal
tear resulting to [sic] a knee replacement and other complications.” ECF No. 1 at 2.
On May 23, 2018, Plaintiff filed a complaint against Defendant, alleging that it was liable
for premises liability and negligence. Id. at 2–6.
II.
Defendant has now filed a motion for summary judgment. ECF No. 18. A motion for
summary judgment should be granted if the “movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The moving party has the initial burden of identifying where to look in the record for evidence
“which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the opposing party who must set out
specific facts showing “a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986) (citation omitted). The Court must view the evidence and draw all reasonable
inferences in favor of the non-movant and determine “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Id. at 251–52.
III.
In diversity cases like this one, federal courts “must apply the substantive law of the state
in which the court sits.” Mill’s Pride, Inc. v. Cont’l Ins. Co., 300 F.3d 701, 704 (6th Cir. 2002).
Thus, this Court will apply Michigan’s substantive laws. Accordingly, the question is whether,
viewing the evidence in a light most favorable to Plaintiff, there are genuine issues of material fact
regarding his premises liability claim and negligence claim.
Michigan law provides that, “[i]n a premises liability action, a plaintiff must prove (1) that
the defendant owed a duty to the plaintiff, (2) that the defendant breached the duty, (3) that the
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defendant’s breach of the duty caused the plaintiff’s injuries, and (4) that the plaintiff suffered
damages.” Kennedy v. Great Atl. & Pac. Tea Co., 274 Mich. App. 710, 712 (2007).
“In general, a premises possessor owes a duty to an invitee to exercise reasonable care to
protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the
land.” Lugo v. Ameritech Corp., 464 Mich. 512, 516 (2001). “However, where the dangers are
known to the invitee or are so obvious that the invitee might reasonably be expected to discover
them, an invitor owes no duty to protect or warn the invitee unless he should anticipate the harm
despite knowledge of it on behalf of the invitee.” Riddle v. McLouth Steel Prod. Corp., 440 Mich.
85, 96 (1992). In other words, “[a] premises possessor is generally not required to protect an invitee
from open and obvious dangers.” Kennedy, 274 Mich. App. at 713.
Defendant contends that Plaintiff’s complaint should be dismissed because the edger was
open and obvious and there were no special aspects making the condition unreasonably dangerous
or effectively unavoidable. See generally ECF No. 18. Each of these arguments will be addressed
in turn.
A.
A premises possessor “‘owes no duty to protect or warn’ of dangers that are open and
obvious because such dangers, by their nature, apprise an invitee of the potential hazard, which
the invitee may then take reasonable measures to avoid.” Hoffner v. Lanctoe, 821 N.W.2d 88, 94
(2012) (quoting Riddle v. McLouth Steel Prod. Corp., 440 Mich. 85 (1992)). It is an objective
standard, determining “[w]hether it is reasonable to expect that an average person with ordinary
intelligence would have discovered it upon casual inspection.” Id. at 94–95.
Defendant quotes three separate depositions to supports its argument that the edger’s
placement was open and obvious. First, it quotes Mr. Podboy’s deposition, which provides:
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Q: Okay. As one is walking down Aisle 1 from the main entrance towards that end
cap, is the edger visible?
A: Yes.
Q: Is it hidden?
A: No.
Q: If a person were walking down that aisle and watching where they were going
on July 5th of 2017, would the edger be visible to them?
A: Yes.
Podboy Dep. at 30, Ex. 2, ECF No. 18-3.
Defendant next quotes the deposition of the store manager, Timothy Stevens. He testified
as follows:
Q: You saw and observed the lawn edger shortly after this incident occurred; is that correct?
A: Yes.
Q: Was it plainly visible to anyone walking down aisle No. 1?
A: Once you got to that middle aisle, yes.
Q. Okay. Was it plainly visible once you got to the cross aisle there?
A. Yes.
Q. Okay. It wasn’t hidden or obscured, was it?
A. Correct. It was not.
Q. If somebody were watching where they were going, they would have seen it?
A. Yes.
Stevens Dep. at 16, Ex. 3, ECF No. 18-4.
Lastly, Defendant quotes Plaintiff’s deposition. It provides:
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Q: When you looked to see what you had tripped on, you saw this piece of equipment
sticking out into the aisle?
A: Okay.
Q: Is that correct?
A: Part of it was sticking out, yes.
Q: And you could see that?
A: After I turned around and looked, yes, part of it was sticking out.
Pl.’s Dep. at 69, ECF No. 18-2.
Defendant also provides a photograph taken by Stevens the same day the incident occurred.
ECF No. 18-5. The photograph shows the edger with a tape measure stretched across the aisle,
indicating that there were at least three feet of open aisle space between the edger and the opposite
shelving unit. Defendant also provides three photographs of the aisle and an edger of the same
make and model placed in the same position as the original edger. ECF No. 18-6. The three
photographs are accompanied by an affidavit from Stevens testifying that he had taken the
photographs about six months after the incident and that there had “been no change to the size of
the aisleways or positioning of the shelving units” since the original incident. Id.
In her response brief, Plaintiff gives only cursory attention to whether the edger was “open
and obvious.” She argues that “[w]hile Plaintiff contends that the condition was not open and
obvious, it exhibited special aspects under Michigan case law.” ECF No. 20 at 5. Plaintiff provides
no evidence or explanation to support her assertion that the edger was not open and obvious.
Instead, she dedicates the majority of her argument to the theory of “special aspects” which only
applies when a condition is open and obvious.
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The depositions and photographs support the assertion that an average person with ordinary
intelligence would have noticed the edger through casual inspection. See Hoffner v. Lanctoe, 821
N.W.2d 88, 94–95 (2012). As Plaintiff testified during her deposition, “part of [the edger] was
sticking out” into the aisle. ECF No. 18-2 at 69. The photographs indicate that the edger would be
visible as an individual approached the perpendicular aisle. Once the individual had arrived at the
perpendicular aisle, it would be fully visible. Though Plaintiff contends that she did not notice the
edger until after she tripped over it, her subjective perception does not bear upon the inquiry. The
open and obvious standard is an objective test determining the perception of a person with ordinary
intelligence who had the opportunity to casually inspect the situation. Accordingly, the edger was
open and obvious.
B.
Plaintiff argues that even if the edger were open and obvious, “special aspects” existed,
making Defendant liable. The Michigan Supreme Court has explained that
This Court has discussed two instances in which the special aspects of an open and
obvious hazard could give rise to liability: when the danger is unreasonably
dangerous or when the danger is effectively unavoidable. In either circumstance,
such dangers are those that “give rise to a uniquely high likelihood of harm or
severity of harm if the risk is not avoided” and thus must be differentiated from
those risks posed by ordinary conditions or typical open and obvious hazards.
Further, we have recognized that neither a common condition nor an avoidable
condition is uniquely dangerous.
Hoffner, 821 N.W.2d at 96 (quoting Lugo v. Ameritch Corp., Inc., 629 N.W.2d 384, 387–388
(2001)) (emphasis present in original). Plaintiff only argues that the edger was “effectively
unavoidable.” She does not argue that it was “unreasonably dangerous.”1
1
In her recitation of the facts, Plaintiff refers to the edger as “unreasonably dangerous.” ECF No. 20 at 1. However,
she does not present an argument supporting this assertion in her analysis.
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The court in Hoffner explained that “[u]navoidability is characterized by an inability to be
avoided, an inescapable result, or the inevitability of a given outcome. Accordingly, the standard
for ‘effective unavoidability’ is that a person, for all practical purposes, must be required or
compelled to confront a dangerous hazard.” Id. at 99 (emphasis present in original). In Lugo v.
Ameritech Corp., Inc., the Michigan Supreme Court used the example of a building whose interior
exit is blocked by standing water. Lugo v. Ameritech Corp., Inc., 629 N.W.2d 384, 387 (2001).2
The court explained that the standing water is an open and obvious condition, but that it has special
aspects because it blocks an individual from exiting the building. See id.
Plaintiff reasons that the condition of the edger possessed a special aspect because Mr.
Podboy “brought [Plaintiff] right to the condition.” ECF No. 20 at 6. Plaintiff has presented no
authority providing that an employee leading an invitee to an open and obvious condition is
evidence of a special condition. The presence of the edger did not create an “inescapable” result
or an “inevitable” outcome. It was not preventing Plaintiff from exiting the building. Additionally,
Defendant’s photographs indicate that there was an abundance of space in the aisle even with the
edger placement next to the shelf. ECF No. 18-5. Lastly, the fact that Mr. Podboy led Plaintiff to
this area of the store belies Plaintiff’s contention that his behavior created a “special aspect.” There
is no indication in the record that Mr. Podboy tripped on the edger or made any contact with it. He
walked around the edger without an issue. Plaintiff has not demonstrated why she was unable to
do the same as she was following him.
Plaintiff also presents an argument that the facts in this case are analogous to those of Foust
v. Home Depot USA, Inc. ECF No. 20 at 6. In that case, the plaintiff injured herself after tripping
on a cart. Foust v. Home Depot USA, Inc., 166 F.Supp.3d 881 (E.D. Mich. 2016). The court found
2
Plaintiff also quotes
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that granting the defendant’s motion for summary judgment was not merited because the cart had
metal strips that extended into the aisle that created an independent tripping hazard. See id. at 891.
However, as Defendant argues, “the court noted that the metal strips laid close to the floor, created
an independent tripping hazard, and were similar in color to the store’s cement floor making it
harder to observe.” The descriptions of the edger and aisleway in conjunction with the photographs
indicate that it is not analogous to the cart in Foust. None of the edger’s appendages appear to
extend beyond the main body of the edger. Additionally, the edger is predominantly black and the
surrounding floor is white. This differs from the metal stripes in Foust that were difficult to observe
in relation to the floor.
IV.
Accordingly, it is ORDERED that Defendant’s motion for summary judgment, ECF No.
18, is GRANTED.
It is further ORDERED that Plaintiff’s complaint is DISMISSED.
Dated: April 22, 2019
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
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