Gorsline v. Speedway LLC
Filing
36
MEMORANDUM OPINION and ORDER Granting Defendant's Motions in Limine [24,25,26] and Granting in Part and Denying in Part Plaintiff's Motion in Limine 23 Signed by District Judge Gershwin A. Drain. (TMcg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KATHLEEN GORSLINE,
Plaintiff,
Case No. 16-cv-13002
v.
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
SPEEDWAY LLC,
Defendant.
UNITED STATES MAGISTRATE JUDGE
R. STEVEN WHALEN
______________________________/
OPINION AND ORDER GRANTING DEFENDANT’S MOTIONS IN LIMINE [24, 25, 26]
AND GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION IN LIMINE
[23]
I.
Introduction
On September 15, 2017, the Court granted in part and denied in part
Defendant Speedway’s Motion for Summary Judgment. See Dkt. No. 22. The Court
granted Defendant’s motion on Plaintiff Kathleen Gorsline’s ordinary negligence
claim, and denied Defendant’s motion on Plaintiff’s premises liability claim. Id.
Presently before the Court are four motions in limine, one filed by the Plaintiff
and three filed by the Defendant [23–26]. Plaintiff has moved in limine to exclude
evidence of the absence of accidents caused by the water display in Defendant’s
store [23]. Defendant has moved in limine to preclude evidence of its internal
policies and procedures [24], references to its corporate wealth, financial disparities
between the parties, or both [25], and references to it as an “oil company” [26].
The motions are sufficiently briefed and the Court held a hearing on the
motions on Tuesday, December 19, 2017 at 10:00 a.m.1 At the hearing, the Court
ruled on these motions from the bench. For the reasons that follow, the Court
GRANTED as uncontested Defendant’s Motions in Limine to Preclude References
to Its Corporate Wealth, Financial Disparities Between the Parties, or Both [25], and
References to It as an “Oil Company” [26]. The Court GRANTED IN PART AND
DENIED IN PART Plaintiff’s Motion in Limine to Exclude Evidence of the Absence
of Accidents [23]. The Court also GRANTED Defendant’s Motion in Limine to
Preclude Evidence of Its Internal Policies and Procedures [24].
II.
Discussion
A.
Defendant’s Motions in Limine to Preclude References to Corporate
Wealth and the Financial Disparities Between the Parties [25], and References
to the Defendant as an “Oil Company” [26]
As an initial matter, the Court can easily resolve Defendant’s Motions in
Limine to Preclude References to Its Corporate Wealth, Financial Disparities
Between the Parties, or Both [25], and References to It as an “Oil Company” [26].
The Plaintiff did not file a reply brief in support of her Motion in Limine to Exclude
Evidence of the Absence of Accidents.
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Plaintiff has concurred in Defendant’s motions to exclude this evidence.2 See Dkt.
No. 33, pp. 1–2 (Pg. ID 391–92). Consequently, the Court will GRANT these
motions as uncontested.
B.
Plaintiff’s Motion in Limine to Preclude Evidence of the Absence of
Accidents [23]
The Court will next turn to Plaintiff’s motion in limine. Dkt. No. 23. This
motion is to prevent the Defendant from presenting evidence at trial that no one
besides the Plaintiff tripped over the water display. Id. at p. 2 (Pg. ID 322). Plaintiff
argues that, under Michigan law, this evidence is inadmissible to prove that the
Defendant was not negligent. Id. at p. 6 (Pg. ID 326). Speedway responds that it
does not intend to introduce evidence of the absence of accidents to show that it was
not negligent. Dkt. No. 32, p. 7 (Pg. ID 385). Instead, Speedway contends it will
offer this evidence to illustrate that the water display “was open and obvious and
avoidable.” Id. at pp. 6–7 (Pg. ID 384–85).
The Court holds that evidence of the absence of accidents is inadmissible to
show that the Defendant was not negligent. Evidence of whether other individuals
in the store had difficulty traversing the aisleway with the water display is
2
Plaintiff’s concurrence is somewhat surprising, given that the Defendant asserts it
sought Plaintiff’s concurrence in filing these motions as required by Eastern District
of Michigan Local Rule 7.1(a)(2). See Dkt. No. 25, p. 2 (Pg. ID 346); see also Dkt.
No. 26, p. 2 (Pg. ID 358).
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admissible, however. It is admissible for the limited purpose of describing the
condition of the aisleway around the time of Plaintiff’s accident.
The parties agree that McAuliff v. Gabriel, 34 Mich. App. 344, 191 N.W.2d
128 (1971), is instructive. But, they disagree about how that case should apply here.
The Court finds that the Defendant adopts the better view of McAuliff.
In McAuliff, the court began its analysis by affirming the general principle that
“[t]estimony showing the absence of prior accidents is not competent evidence on
the issue of defendants’ alleged lack of negligence.” Id. at 131. Indeed, “Michigan
courts have long held that negative evidence, i.e., evidence regarding the absence of
accidents, is inadmissible to show an absence of negligence.” Paul v. Henri-Line
Mach. Tools, Inc., 557 F. App’x 535, 540–41 (6th Cir. 2014) (citing Grubaugh v.
City of St. Johns, 82 Mich. App. 282, 266 N.W.2d 791, 794 (1978)). The McAuliff
court continued—and Plaintiff fails to acknowledge—that some evidence pertaining
to the condition of the premises does not violate the negative evidence rule.
Specifically, evidence that is “carefully limited” to “what [the witnesses] themselves
had observed and what, if any difficulties had been encountered in entering or exiting
the defendants’ premises.” McAuliff, 191 N.W.2d at 131. Therefore, although the
Defendant cannot offer evidence of the absence of accidents to show that it was not
negligent, it can offer evidence of the condition of the aisleway to prove that people
easily navigated this area.
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This conclusion finds further support from several persuasive authorities cited
by the Defendant which, although not resolving issues for trial, rely on evidence
about whether people had trouble walking in the area in question. For example, in
Njoku v. Nw. Airlines, Inc., a court in this district dismissed a plaintiff’s premises
liability claim in part because:
[i]t [wa]s undisputed that several hundred other passengers walked over
the steel plate on the jet bridge at gate A–18 on the same day as Plaintiff
without incident. Plaintiff does not provide any evidence that this
particular steel plate, or other similar plates which exist throughout the
airport, have ever posed a risk of harm to passengers.
806 F. Supp. 2d 1022, 1029 (E.D. Mich. 2011). Similarly, in Meredith v. Somerset
Collection, GP, Inc., No. 228740, 2002 WL 551104, at *1 (Mich. Ct. App. Apr. 12,
2002), the court granted defendant’s summary disposition motion as “[p]laintiff
testified that the mall was very crowded, and the evidence indicates that many people
negotiated themselves around the platform without incident.”
Accordingly, the Court finds that evidence of the absence of accidents is
admissible to the extent it is introduced to describe the condition of the aisleway
with the water display, and not for proving whether Speedway was negligent.
C.
Defendant’s Motion in Limine to Exclude Evidence of Its Internal
Operations Manual
The Court will now address Defendant’s Motion in Limine to Exclude
Evidence of Its Internal Operations Manual. See Dkt. No. 24. Here, Plaintiff seeks
to introduce sections of Speedway’s internal Operations Manual, including
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provisions that instruct employees (1) to “keep aisles and walkways free of
obstructions”; (2) to position floor displays “so that they do not limit walking space
or access to gondolas or cooled goods”; and (3) to ensure that floor display areas are
“accessible to customers, without interfering with customer traffic and without
creating any other safety hazards.” Dkt. No. 33, p. 8 (Pg. ID 398). The Court
concludes that this evidence is inadmissible.
Gorsline concedes this evidence is not admissible to establish that Speedway
had a legal duty or acted negligently. Id. Michigan law prohibits the use of internal
manuals for this purpose. See, e.g., Buczkowski v. McKay, 441 Mich. 96, 490
N.W.2d 330, 332 n.1 (1992) (noting that “[i]mposition of a legal duty on a retailer
on the basis of its internal policies is actually contrary to public policy. Such a rule
would encourage retailers to abandon all policies enacted for the protection of others
in an effort to avoid future liability.”); see also Gallagher v. Detroit-Macomb Hosp.
Ass’n, 171 Mich. App. 761, 431 N.W.2d 90, 92 (1988) (observing that Michigan
courts have held that “an institution’s internal rules and regulations do not add to its
obligations to the public or establish a standard of care” (citing McKernan v. Detroit
C. S. R. Co., 138 Mich. 519, 101 N.W. 812, 813–14 (1904))).
Plaintiff attempts to circumvent this restriction by arguing that she will offer
this evidence to show that Speedway “knew and possessed knowledge that products
placed in aisles and walkways can be dangerous to the safety of customers.” Dkt.
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No. 33, pp. 9, 11 (Pg. ID 399, 401). Yet, as Speedway correctly notes, this purpose
is simply another way of alleging that (1) Speedway had a legal duty to keep the
aisles safe; and (2) Speedway acted negligently in situating the water display in the
aisle. The danger posed by the water display goes directly to whether Speedway had
a legal duty or behaved negligently. According to the above, then, Gorsline cannot
present evidence of Speedway’s internal Operations Manual.
III.
Conclusion
Based on the foregoing analysis, the Court ruled from the bench and
GRANTED as uncontested Defendant’s Motions in Limine to Preclude References
to Its Corporate Wealth and/or Financial Disparities Between the Parties [25], and
References to It as an “Oil Company” [26]. The Court GRANTED IN PART AND
DENIED IN PART Plaintiff’s Motion in Limine to Exclude Evidence of the Absence
of Accidents [23]. In addition, the Court GRANTED Defendant’s Motion in Limine
to Preclude Evidence of Its Internal Policies and Procedures [24].
Finally, at least one week prior to the start of trial, the Parties must provide
the Court with any requests for voir dire, proposed jury instructions, and the verdict
form. See Dkt. No. 27, p. 3 (Pg. ID 371).
IT IS SO ORDERED.
Dated: December 21, 2017
/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge
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CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
December 21, 2017, by electronic and/or ordinary mail.
/s/ Tanya Bankston
Deputy Clerk
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