Davis v. Oakland Pebble Creek Housing Associates, LP

Filing 15

ORDER granting in part and denying in part 12 Motion for Judgment. Signed by District Judge Lawrence P. Zatkoff. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DILAGENE C. DAVIS,
Case No. 11-11572
Hon. Lawrence P. Zatkoff

Plaintiff,
v.
OAKLAND PEBBLE CREEK HOUSING
ASSOCIATES, LP,
Defendant.
_______________________________________/
OPINION AND ORDER

AT A SESSION of said Court, held in the United States Courthouse,
in the City of Port Huron, State of Michigan, on February 19, 2012.
PRESENT: THE HONORABLE LAWRENCE P. ZATKOFF
UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
This matter is before the Court on Defendant’s motion for summary judgment [dkt 12]. The
motion has been fully briefed. The Court finds that the facts and legal arguments are adequately
presented in the parties’ papers such that the decision process would not be significantly aided by oral
argument. Therefore, pursuant to E.D. Mich. L.R. 7.1(f)(2), it is hereby ORDERED that the motion be
resolved on the briefs submitted, without oral argument. For the following reasons, Defendant’s
motion is GRANTED IN PART and DENIED IN PART.
II. BACKGROUND
On July 23, 2010, Plaintiff was walking from her residence in Defendant’s apartment complex
to her friend’s apartment, also part of Defendant’s complex. While proceeding on the sidewalk,
Plaintiff encountered a section of concrete containing a crack or break. Although she was “able to

appreciate that the sidewalk was cracked,” Plaintiff alleges that the “change in height” in the sidewalk
was not visible and caused her to trip and fall:
Q.
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So during the afternoon you were walking to the daughter of a girlfriend’s
apartment at Pebble Creek?
Yes.
And you fell in this area that’s depicted in Exhibit A?
Yes.
Now, it was broad daylight at the time?
Yes.
And the condition of the walkway was obvious to you; correct?
What do you mean?
Well, I mean, you could see clearly where you were walking at the time; right?
Yes.

See Dkt. 12, ex. C at ¶ 19.
At the time of the incident, Plaintiff had been a resident of Defendant’s apartment complex for
several years. She claims that, as a result of her trip and fall, she sustained the following injuries: three
fractures to her right wrist; injuries to her neck, back, arms, legs, body, eyes, head, muscles, ligaments;
bruises, abrasions, lacerations and contusions to the legs and head; injuries to the nerves of the arms,
legs, neck, spine and back; convulsions and severe shock and injury to the nervous system; severe
emotional shock, stress and physiological as well as psychiatric problems such as depression; loss of
wages; medical expenses; and other injuries to be determined upon further discovery.
Prior to the incident, a concrete repair contractor had been in the area, and the portion of the
sidewalk where Plaintiff allegedly fell was highlighted with bright, spray-painted arrows in preparation
for repair.
Plaintiff asserts that there was no alternate route and that she had no choice but to encounter the
cracked sidewalk. She claims that although she was wearing athletic shoes, she did not want to walk
on the grass because it was less safe than walking on the cracked, marked sidewalk and because she
was fearful of what lay hidden in the grass. She also admits that there were other ways to enter and
leave the premises:
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Q.
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What type of shoes were you wearing at the time?
Gym shoes. Nike Air.
And you could have walked on the grass, correct?
I didn’t want to walk on the grass because of the lumps and stuff like that. I
didn’t want to walk on the grass.
So the grass seemed less safe than the sidewalk as you observed it?
It just—yes.
Looking at the grass there, it looks nicely maintained. Was there anything in
particular about the grass there that was a hazard to you?
I just didn’t want to trust the grass. Sometimes grass has them little hidden
pockets, holes and stuff where it looks like it’s grass but you still have those
hidden pockets.
Now, looking at the sidewalk, it seems like there’s plenty of areas around the
cracks that you could have walked on, correct?
Yes. I guess.
***

Q.
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You didn’t think it was unreasonably dangerous to walk over [the cracked] area
of the walkway?
Evidently I didn’t because I’m just walking. I just walked and, you know, I got
caught up in that crack.

See Dkt. 12, ex. C at ¶¶ 15–16, 19.
In Count I of her complaint, Plaintiff states a claim of negligence, alleging that Defendant:
negligently maintained a dangerous and defective condition on the sidewalks; failed to take
precautionary measures to correct or alleviate unsafe conditions caused by the defective sidewalks;
failed to keep the sidewalks in a safe and habitable condition; negligently ignored requests by Plaintiff
and others to correct the defective conditions; and engaged in other acts of negligence not yet known.
In Count II, Plaintiff alleges that Defendant’s conduct violated Mich. Comp. Laws § 554.139.
III. LEGAL STANDARD
“The court shall grant summary judgment 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);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A party must support its assertions by:
(A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
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declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or;
(B) showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). “The court need consider only the cited materials, but it may consider other
materials in the record.” Fed. R. Civ. P. 56(c)(3).
The moving party bears the initial burden of demonstrating the absence of any genuine dispute
as to a material fact, and all inferences should be made in favor of the nonmoving party. Celotex, 477
U.S. at 323. The moving party discharges its burden by “‘showing’—that is, pointing out to the district
court—that there is an absence of evidence to support the nonmoving party’s case.” Horton v. Potter,
369 F.3d 906, 909 (6th Cir. 2004) (citing Celotex, 477 U.S. at 325).
Once the moving party has met its initial burden, the burden then shifts to the nonmoving party,
who “must do more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “[T]he mere existence of
a scintilla of evidence in support of the [nonmoving party’s] position will be insufficient [to defeat a
motion for summary judgment]; there must be evidence on which the jury could reasonably find for the
[nonmoving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
IV. ANALYSIS
Defendant argues that the cracks in the sidewalk were “open and obvious,” thereby precluding
Plaintiff from recovering on her negligence claim. As to its alleged violation of Mich. Comp. Laws §
554.139, Defendant states that although the sidewalk was in the process of being repaired, it remained
fit for its intended use.
“To establish a prima facie case of negligence, a plaintiff must prove four elements: (1) a duty
owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages.” Case
v. Consumers Power Co., 463 Mich. 1, 6 (2000). With respect to the duty element, “the general rule is
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that 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.’” Lawrence v.
U.S., 679 F. Supp. 2d 820, 825 (E.D. Mich. 2010) (citing Lugo v. Ameritech Corp., 464 Mich. 512, 516
(2001)). “Questions concerning the duty element of a negligence action are for the court to decide as a
matter of law.” Id. (citing Scott v. Harper Recreation, Inc.., 444 Mich. 441, 448 (1993)). The parties
do not dispute that Plaintiff was an invitee on the premises at the time of the incident.
A. OPEN AND OBVIOUS
“[W]here 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.” Wasaya v. United Artist
Theatre Circuit, Inc., 205 F. Supp. 2d 756, 759 (E.D. Mich. 2002) (citation omitted). “To determine if a
danger is open and obvious, the relevant inquiry is whether ‘an average user with ordinary intelligence
[would] have been able to discover the danger and the risk presented upon casual inspection.’” Id. at
759 (citing Novotney v. Burger King Corp., 198 Mich. App. 470, 499 (1993)). If there are “special
aspects” of a condition that make even an “open and obvious” danger “unreasonably dangerous,” the
premises possessor maintains a duty to undertake reasonable precautions to protect invitees from such
danger. Lugo, 464 Mich. at 517.
To determine “whether a condition is ‘open and obvious,’ or whether there are ‘special aspects’
that render even an ‘open and obvious’ condition ‘unreasonably dangerous,’ the fact-finder must utilize
an objective standard, i.e., a reasonably prudent person standard.” Lawrence, 679 F. Supp. 2d at
824 (citing Lugo, 464 Mich. at 517). That is, in a premises liability action, the fact-finder must consider
the “condition of the premises,” not the condition of the plaintiff, Lugo, 464 Mich. at 518 n. 2, or the
subjective degree of care used by the plaintiff, Id. at 516. As such, to survive a motion for summary
judgment, a plaintiff must “come forth with sufficient evidence to create a genuine issue of material fact
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that an ordinary user upon casual inspection could not have discovered the existence” of the danger,
and therefore it is irrelevant whether the specific plaintiff in any given case actually saw the
danger. Novotney, 198 Mich. App. at 475.
The Court finds that even if the crack in the sidewalk was itself open and obvious, Plaintiff has
created a genuine issue of fact by providing photographic evidence purportedly showing that the crack
created an unreasonably dangerous condition. Although Plaintiff acknowledges that the cracks in the
sidewalk were open and obvious, she argues in her response brief that the varying height of the
concrete surrounding the crack—and not the crack itself—was not visible to her. The photographs of
the area in question submitted to the Court by the parties are hazy, unclear, and therefore inconclusive.
As such, a genuine factual issue remains as to whether the concrete surrounding the crack was uneven
to such an extent that it would have been open and obvious to the average invitee. See Novotney, 198
Mich. App. at 474.
The Court turns next to Plaintiff’s claim that Defendant violated Mich. Comp. Laws § 554.139
(Count II).
B. MICH. COMP. LAWS § 554.139
Section 554.139 provides in pertinent part:

(1) In every lease or license of residential premises, the lessor or
licensor covenants:
(a) That the premises and all common areas are fit for the use intended
by the parties.
(b) To keep the premises in reasonable repair during the term of the
lease or license[.]
Mich. Comp. Laws § 554.139. Plaintiff argues that Defendant violated subsections (a) and (b) because the
sidewalk was unfit for its intended purpose and because Defendant did not keep the sidewalk in reasonable
repair.

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First, although the portion of the sidewalk in question was cracked and in the process of being
replaced, by no means was the entire sidewalk unusable. Although inconclusive on the issue of whether the
concrete around the crack was dangerously uneven, the photographs do show that the crack did not span the
entire length of the sidewalk or the entire width of the sidewalk, instead affecting only about a third of the
width of a particular section. While the crack may have reduced the fully usable portion of the sidewalk, the
sidewalk remained substantially fit for walking—its intended purpose. See Benton, 270 Mich. App. at 444
(“[T]he intended use of a sidewalk is walking on it[.]”). Further, while not dispositive to Plaintiff’s earlier
claim, the photographs—as well as Plaintiff’s testimony—indicate that Plaintiff could have avoided the
alleged danger by walking on the grass momentarily. While the sidewalk was not in perfect condition,
reasonable minds could not disagree that it was in the process of being repaired yet nevertheless remained fit
for its intended use.
Therefore, no reasonable jury could find Defendants in violation of Mich. Comp. Laws §
554.139(l)(a) on the basis of the sidewalk’s state of repair or fitness for its intended use, and Defendant is
entitled to summary judgment with respect to Count II.

V. CONCLUSION
Accordingly, and for the reasons set forth above, it is HEREBY ORDERED that Defendant’s
motion for summary judgment [dkt 12] is GRANTED IN PART and DENIED IN PART in
accordance with the following:
A. Defendant’s motion is GRANTED with respect to Count II of Plaintiff’s
Complaint;
B. Defendant’s motion is DENIED with respect to Count I of Plaintiff’s Complaint.
IT IS SO ORDERED.
s/Lawrence P. Zatkoff
LAWRENCE P. ZATKOFF
U.S. DISTRICT JUDGE
Dated: February 19, 2013
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