Jafaar v. Home Depot USA, Incorporated
Filing
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ORDER Granting Defendant's Motion for Summary Judgment 14 . Signed by District Judge Denise Page Hood. (LSau)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SAMER JAAFAR,
Plaintiff,
v.
Case No. 16-11167
HON. DENISE PAGE HOOD
HOME DEPOT USA, INC.,
Defendant.
__________________________________/
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT [#14]
I.
INTRODUCTION
On June 29, 2017, Defendant filed a Motion for Summary Judgment. [Dkt. No.
14] The Motion has been fully briefed. The Court, having concluded that the decision
process would not be significantly aided by oral argument, previously ordered that the
motion be resolved on the motion and briefs submitted by the parties. E.D. Mich. L.R.
7.1(f)(2). [Dkt. No. 18] For the reasons that follow, the Court grants Defendant’s
Motion for Summary Judgment.
II.
BACKGROUND
Plaintiff has lived in Michigan most of his life and is familiar with Michigan
weather. (Dkt. No. 14, Ex. 2 at 34-37). On November 17, 2014, Plaintiff slipped on
a patch of black ice in the parking lot of Defendant’s Dearborn, Michigan store.
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Plaintiff slipped as he exited his vehicle at approximately 8:04 a.m., resulting in
serious back injuries.
At his deposition, Plaintiff testified that “[w]hen I was driving in[,] I noticed a
few areas of ice . . .” Id. at 32. Plaintiff noticed “different areas of ice patches around,
um, shiny areas on the ground too . . .” Id. Plaintiff also testified (moments later) that,
as he drove from his home to the store, he “[did]n’t recall” there being any snow or
ice on the ground but that the weather was “a little gloomy.” (Dkt. No. 16, Ex. 1 at
33). When he pulled into Defendant’s parking lot, it was “ten to fifteen” percent full,
id. at 75, and “it was light enough where you didn’t need [head]lights” – “daylight”
but not “full daylight” because it was gloomy. Id. at 33-34. Plaintiff stated that he did
not notice any ice as he pulled into his parking space, and it was only when he was
getting up from his fall that he noticed any ice. Id. at 48. Photographs taken by
Plaintiff approximately 30 minutes after Plaintiff fell show: (1) snow on Plaintiff’s
vehicle, the ground and the roof of Defendant’s building; and (2) ice in the parking
lot next to his vehicle, where he had fallen. (Dkt. No. 14, Ex. 6 (especially Deposition
Exhibits B, F, G, I, and J)).
Data from the U.S. Department of Commerce, National Oceanic & Atmospheric
Administration (“NOAA”) show that: (a) temperatures had warmed above freezing
in the 24 hours prior to the incident but dropped below freezing at the time of the
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incident; and (b) frozen and liquid precipitation had fallen in the Dearborn area during
the 24 hours preceding the incident. (Dkt. No. 14, Ex. 3-5).
III.
APPLICABLE LAWS & ANALYSIS
A.
Standard of Review
Rule 56(a) of the Rules of Civil Procedures provides that 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). The presence of factual disputes will preclude granting of summary judgment
only if the disputes are genuine and concern material facts. Anderson v. Liberty Lobby,
Inc. 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine” only if
“the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. Although the Court must view the motion in light most favorable to the
nonmoving party, where “the moving party has carried its burden under Rule 56(c),
its opponent must do more than simply show that there is metaphysical doubt as to the
material facts.” Matsushita Electric Industrial Co. v. Zenth Radio Corp., 475 U.S.
574, 586 (1986) ; Celotex Corp. v. Caterett, 477 U.S. 317, 323-24 (1986). Summary
Judgement must be entered against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that
party will bear the burden of proof at trial. In such a situation, there can be “no
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genuine issue as to any material face,” since a complete failure of proof concerning
an essential element of the nonmoving party’s case necessarily renders all other facts
immaterial. Celotex Corp., 477 U.S. at 322-23. A court must look at the substantive
law to identify which facts are material. Anderson, 477 U.S. at 248.
B.
Analysis
In this premises liability action, Plaintiff has alleged that Defendant negligently
failed to maintain its parking lot free of black ice. To prevail on a premises liability
action, a plaintiff must prove the following elements of negligence: (1) the defendant
owed a duty; (2) the defendant breached that duty; (3) an injury proximately resulted
from that breach; and (4) the plaintiff suffered damages. Benton v. Dart Properties,
Inc., 270 Mich. App. 437, 440 (2006); Taylor v. Laban, 241 Mich. App. 449, 452
(2000). “[T]he existence of a legal duty is a question of law for the court to decide.”
Anderson v. Wiegand, 223 Mich.App. 549, 554 (1997). “Unless the defendant owed
a duty to the plaintiff, the analysis cannot proceed further.” Bell & Hudson, PC v. Buhl
Realty Co., 185 Mich. App. 714, 717 (1990).
A premises possessor is not an absolute insurer of the safety of its invitees.
Quinlivan v. The Great Atlantic & Pacific Tea Co., Inc., 395 Mich. 244 (1975).
However, a premises possessor does owe “a duty to an invitee to exercise reasonable
care to protect the invitee from an unreasonable risk of harm caused by a dangerous
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condition on the land.” Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 516 (2001).
There is no duty to protect an invitee against dangerous conditions that are open and
obvious dangers, unless special aspects of a condition make even an open and obvious
risk unreasonably dangerous. Watts v. Michigan Multi–King, Inc, 291 Mich. App. 98,
102 (2010).1 The test to determine if a danger is open and obvious is whether an
average user of ordinary intelligence would have been able to discover the danger and
the risk presented upon casual inspection. Mann v. Shusteric Enterprises, Inc, 470
Mich. 320, 328 (2004); Joyce v. Rubin, 249 Mich. App. 231, 238 (2002).
In Scott v. Kroger, 2010 WL 3184488 (Mich. Ct. App. Aug. 12, 2010), the court
stated:
Under the open and obvious doctrine, when a plaintiff is a business
invitee, the premises owner has a duty to use reasonable care to protect
the plaintiff from dangerous conditions. Bertrand v. Alan Ford, Inc., 449
Mich. 606, 612-613, 537 N.W.2d 185 (1995). “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.” Id. To determine whether a
danger is open and obvious, the courts consider “whether an average user
with ordinary intelligence would have been able to discover the danger
and the risk presented upon casual inspection.” Joyce v. Rubin, 249
Mich.App. 231, 238, 642 N.W.2d 360 (2002). Courts do not consider
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Plaintiff does not contend that there was any special aspect that created an unreasonable
risk of harm despite the condition being open and obvious. Lugo, 464 Mich. at 517 (“if special
aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises
possessor has a duty to undertake reasonable precautions to protect invitees from that risk.”).
Accordingly, the Court does not address that issue.
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whether a specific plaintiff knew or should have known about the
dangerous condition, but whether the danger would be foreseeable to a
reasonable person in the plaintiff’s position. Id.
Id. at *1. The Michigan Supreme Court has stated:
Whether a danger is open and obvious depends on whether it is
reasonable to expect that an average person with ordinary intelligence
would have discovered it upon casual inspection. This is an objective
standard, calling for an examination of “the objective nature of the
condition of the premises at issue.”
Hoffner v. Lanctoe, 492 Mich. 450, 461 (2012) (citations omitted) (emphasis in
original).
Defendant argues that the ice Plaintiff slipped on was open and obvious because
it was visible upon casual inspection and because there were indicia of a potentially
hazardous condition. Defendant relies on Plaintiff’s statements that he had noticed
ice in some areas on the drive to Defendant’s store, that he had seen ice when he stood
up after falling, and that Plaintiff noticed ice and shiny/damp areas on the pavement
as he drove out of Defendant’s parking lot. Defendant also relies on the photographs
Plaintiff took that showed ice where he fell, snow on vehicles in Defendant’s parking
lot (including Plaintiff’s) and the ground and the roof of Defendant’s store, the fact
that it had snowed four of the previous five days (including the preceding day), and
that the temperature was below freezing at the time of the incident – after temperatures
had been above freezing the day before.
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Plaintiff argues that there is no evidence that would give rise to the conclusion
that, as a matter of law: (1) the black ice in Defendant’s parking lot would have been
visible on casual inspection before the fall; or (2) other indicia existed to put him on
notice of a potentially hazardous condition in Defendant’s parking lot. Plaintiff relies
on his testimony that: (a) he “[did]n’t recall” the presence of snow or ice on his way
to Defendant’s store (Dkt. No. 16, Ex. 1 at 33); (b) as he pulled into his parking spot,
he did not notice ice on the ground, id. at 79; and (c) he only noticed some ice on the
ground as he got help standing after his fall. Id. at 48.
Plaintiff cites a number of cases to suggest that because there were only some
indicia of icy or slippery conditions (but not other indicia of icy or slippery conditions
identified in each of those cases), there is a question of fact whether the presence of
black ice in Defendant’s parking lot was open and obvious. Plaintiff argues that he
fell going into the store and did not testify that there was “quite a bit of ice” on the
ground, unlike the plaintiff in Harris v. CW Financial Servs., 2017 WL 104572
(Mich.Ct.App. Jan. 10, 2017), who fell in the parking lot after going into the
defendant’s store and testified that there was “quite a bit of ice” on the ground.
Plaintiff also suggests that, as in Slaughter v. Blarney Castle Oil Co., 281 Mich.App.
474, 481 (2008), ice was not readily discernable even after the fall. Plaintiff argues
that the weather records in this case do not indicate “the presence of any significant
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precipitation” (1/10th inch of precipitation in the previous 24 hours), unlike in Kalosis
v. Woods of Livonia Assoc., 2017 WL 1034430 (Mich.Ct.App. Mar. 16, 2017), where
at least two inches of snow had fallen the previous day, the complex management had
plowed and salted the premises near the plaintiff’s carport, the plaintiff had put on
shoes with nonskid shoes because of the weather, and the plaintiff had noticed snow
and ice o the way to his car.
The Michigan Supreme Court has addressed the issue of black ice in Michigan
on numerous occasions, holding that:
[T]he governing precedent established in Slaughter v. Blarney Castle Oil
Co., 281 Mich.App. 474, 483, 760 N.W.2d 287 (2008), . . . renders
alleged “black ice” conditions open and obvious when there are “indicia
of a potentially hazardous condition,” including the “specific weather
conditions present at the time of the plaintiff's fall.” Here, the slip and
fall occurred in winter, with temperatures at all times below freezing,
snow present around the defendant's premises, mist and light freezing
rain falling earlier in the day, and light snow falling during the period
prior to the plaintiff's fall in the evening. These wintry conditions by
their nature would have alerted an average user of ordinary intelligence
to discover the danger upon casual inspection. Novotney v. Burger King
Corp. (On Remand), 198 Mich.App. 470, 475, 499 N.W.2d 379 (1993).
Janson v. Sajewski Funeral Home, Inc., 486 Mich. 934, 935 (2010). The Court finds
that the facts of this case establish that the ice upon which Plaintiff fell was visible and
could be seen upon casual inspection. The Court also finds that there was sufficient
indicia that icy conditions were present.
First, Plaintiff has lived in Michigan for most of his life and is familiar with
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Michigan weather. See, e.g., Kaseta v. Binkowski, 480 Mich. 939 (2007) (reversing
the court of appeals’ decision by adopting the dissenting opinion from the court of
appeals decision, which concluded that black ice was open and obvious where, among
other things, the plaintiff was a lifelong Michigan resident who had considerable
experience with Michigan weather); Buhalis v. Trinity Continuing Care Servs., 296
Mich.App. 685, 695 (2012) (finding open and obvious condition because, among
other things, “at the time of her fall, [plaintiff] had lived through 85 Michigan
winters.”); Hoffner, 492 Mich. at 454 (2012) (“Michigan, being above the 42nd
parallel of north latitude, is prone to winter. And with winter comes snow and ice
accumulations on
sidewalks, parking lots, roads, and other outdoor sources.
Unfortunately, the accumulation of snow ice, and other slippery hazards on the
surfaces regularly traversed by the citizens of this state results in innumerable mishaps
and injuries each year.”)
Second, Plaintiff testified that he saw this ice when he got up from his fall and
that he saw snow and ice driving to and from Defendant’s store. Janson, 486 Mich.
at 935. The photographs taken by Plaintiff shortly after he fell show: (a) the patch of
ice upon which Plaintiff slipped and fell (i.e., the patch of ice was visible); (b) snow
and possibly ice on Plaintiff’s vehicle and the vehicle next to his; and (c) snow and
possibly ice on the ground and roof of Defendant’s store. Janson, 486 Mich. at 935.
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Third, the climate information from the NOAA shows that: (1) in the 24 hours
before the incident occurred, temperatures had been above freezing at some point but
later fell below freezing; (2) the temperature was below freezing when the incident
occurred; and (3) there had been both liquid and frozen precipitation in the 24 hours
prior to the incident. See, e.g., Buhalis, 296 Mich.App. at 695 (“Evidence showed that
it rained and snowed the day before plaintiff's fall. Though temperatures rose during
the night before the incident, [plaintiff] admitted that after she fell she could see the
patch of ice on which she slipped, and Mr. Shock testified that when he went to move
[plaintiff’s] trike after her fall the ice on the patio was evident. Further, at the time of
her fall, [plaintiff] had lived through 85 Michigan winters.”).
The Court concludes that there is an absence of a genuine dispute of material
fact that Defendant owed Plaintiff a duty under the undisputed circumstances of this
case, as the ice upon which Plaintiff fell was open and obvious. The Court grants
Defendant’s motion for summary judgment.
IV . CONCLUSION
For the reasons stated above, IT IS ORDERED that Defendant’s Motion for
Summary Judgment [#14] is GRANTED. Judgment shall be entered accordingly.
IT IS ORDERED.
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S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: December 19, 2017
I hereby certify that a copy of the foregoing document was served upon counsel of
record on December 19, 2017, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager
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