Morris v. Home Depot USA, Inc.

Filing 20

OPINION AND ORDER Granting 13 Motion for Summary Judgment. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Renee Morris,
Plaintiff,
v.

Case No. 17-10063

The Home Depot,

Sean F. Cox
United States District Court Judge

Defendant.
______________________________/
OPINION AND ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
While shopping at Home Depot, Plaintiff was injured when she tripped over a pallet lying
in the center of a walkway. She has now sued Home Depot on a premises liability theory and
Defendant has moved for summary judgment. For the reasons below, the Court shall grant
Defendant’s motion because any danger posed by the pallet was open and obvious.
BACKGROUND
In May 2016, Plaintiff Renee Morris went to a Home Depot in Livonia to do some
shopping. Pl. Dep., p. 19. While searching for some patio cushions, she walked down a
pathway that had patio furniture to her left and a stack of charcoal to her right. Id. at 22. Several
wooden pallets were also nearby the charcoal. Id.
As Plaintiff was looking at a patio cushion, she tripped over a light-colored wooden
pallet that was lying in the center of the concrete walkway. Id. at 22, 24; Def. Stmt. of Material
Facts, ¶ 13. The pallet was about 2.5 inches high and, when lying flat, spanned almost the entire
walkway. Pl. Dep., p. 25-26. Yet Plaintiff claims that she did not see the pallet because patio

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furniture was blocking her view of the walkway. Id. at 22.
After Plaintiff fell, Home Deport employee Steve Larkins lifted up the pallet and propped
it up against the charcoal.1 Id. at 24. The next day, Plaintiff returned to the store and filed an
incident report. Id. at 33.
About seven months later, Plaintiff filed a negligence suit in state court against
Defendant Home Depot, which removed the case to this Court on diversity grounds (Doc. # 1).
Defendant has moved for summary judgment (Doc. # 13) and Plaintiff has responded (Doc. #
15). The Court held a hearing on Defendant’s motion on May 31, 2018.
STANDARD OF DECISION
Summary judgment will be granted when no genuine issue of material fact exists.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact
exists where “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. The Court “must view the evidence, all facts, and any inferences that
may be drawn from the facts in the light most favorable to the non-moving party.” Skousen v.
Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002).
ANALYSIS
In a premises liability case, the plaintiff “must prove (1) that the defendant owed a duty
to the plaintiff, (2) that the defendant breached the duty, (3) that the defendant's breach of the

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Larkins later disposed of the pallet. Now, for the first time, Plaintiff cursorily urges the
Court to impose sanctions for spoliation of evidence based on that decision. But this argument
should have been raised in an appropriate discovery motion, not in opposition to the motion for
summary judgment. Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494, 507 (D. Md. 2009).
And, in any event, Plaintiff has not shown that Larkins disposed of the pallet with a culpable
state of mind. See Adkins v. Wolever, 692 F.3d 499, 504 (6th Cir. 2012). Thus, the Court
declines to impose any spoliation sanction.
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duty caused the plaintiff's injuries, and (4) that the plaintiff suffered damages.” Kennedy v.
Great Atlantic & Pacific Tea Co., 737 N.W.2d 179, 181 (Mich. Ct. App. 2007). Here, the only
issue is whether Defendant owed Plaintiff a duty.
A landowner owes a duty to use reasonable care to protect invitees, like Plaintiff, “from
unreasonable reasonable risks of harm posed by dangerous conditions on the owner’s land.”
Hoffner v. Lanctoe, 821 N.W.2d 88, 94 (Mich. 2012). But there is generally no duty to protect
an invitee against “open and obvious” dangers, which, “by their nature, apprise an invitee of the
potential hazard, which the invitee may then take reasonable measures to avoid.” Id. An
exception to this rule exists only if special aspects of the condition make the open and obvious
risk unreasonable, either because the hazard is unreasonably dangerous or because the danger is
effectively unavoidable. Id. at 95-96.
Defendant argues that the pallet Plaintiff tripped over was open and obvious. This is
determined using an objective standard: “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.” Id. at 94-95.
The undisputed facts show that the pallet spanned nearly the entire pathway in which
Plaintiff was walking. This alone made it readily visible to a casual observer. See LaFontaine v.
Big Lots Stores, Inc., 2011 WL 6757480, at * 2 (holding that a pallet sticking out three feet into
an aisle was open and obvious); Summers v. Carter’s Inc., 2005 WL 2372075, at * 1 (Mich. Ct.
App. 2005) (holding that a five-foot strip of plastic wrap lying in an aisle was open and obvious).
What’s more, the pallet contrasted with its surroundings–the light wooden pallet rose several
inches above the concrete floor. See LaFontaine, 2011 WL 6757480, at * 2 (noting that the

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pallet contrasted with the floor); Maronek v. Wal-Mart Stores, 2008 WL 1959255, at * 2
(holding that the edge of an exposed black pallet lying on white floor tiles was open and
obvious). It was a clear obstacle in Plaintiff’s path–one that an average person would have
observed upon casual inspection. This is true even if the view of the pallet was initially obscured
by furniture. Because the pallet spanned almost the entire pathway, it is reasonable to conclude
that an average person would have observed it at some point before reaching it.
The Court emphasizes that the test here is an objective one. So, the question is not
“whether the particular plaintiff knew or should have known that the condition was hazardous.”
Slaughter v. Blarney Castle Oil Co., 760 N.W.2d 287, 290 (Mich. Ct. App. 2008). As such, that
Plaintiff did not see the pallet, or was distracted by other items in the store, does not alter the
conclusion that, under an objective standard, the pallet was open and obvious. See Kennedy, 737
N.W.2d at 184 (“[M]ere distractions are not sufficient to prevent application of the open and
obvious danger doctrine.”).
Finally, the pallet did not present an extremely high risk of severe harm such that the
open and obvious doctrine is inapplicable. See Hoffner, 821 N.W.2d at 95. The pallet was not
unreasonably dangerous. Plaintiff has not identified–nor do the undisputed facts show–anything
unique or uncommon about the pallet that she tripped over. Indeed, the pallet is more akin to an
ordinary pothole than an unguarded thirty foot deep pit in the middle of a parking lot, the former
of which, of course, is not unreasonably dangerous. See Lugo v. Ameritech Corp., Inc., 629
N.W.2d 384, 387-88 (Mich. 2001). Nor was any danger posed by the pallet “effectively
unavoidable.” “[S]ituations in which a person has a choice whether to confront a hazard cannot
truly be unavoidable, or even effectively so.” Hoffner, 821 N.W.2d at 99. That is the case here.

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Plaintiff was not compelled to enter the aisle in question, she chose to do so.
In sum, Plaintiff was injured by an avoidable open and obvious danger that did not pose
an unreasonably high risk of harm. Thus, she cannot recover in tort as a matter of law and
Defendant is entitled to summary judgment. See id. at 101-02.
CONCLUSION
For the reasons above, IT IS ORDERED that Defendant’s Motion for Summary
Judgment is GRANTED.
IT IS SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: June 1, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of record on
June 1, 2018, by electronic and/or ordinary mail.
s/Jennifer McCoy
Case Manager

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