Taylor v. PetSmart, Inc.
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 13 . Signed by District Judge Gershwin A. Drain. (TBan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 17-cv-10151
UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN
UNITED STATES MAGISTRATE JUDGE
MONA K. MAJZOUB
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT 
Plaintiff Jeanne Taylor initiated this action in state court on December 20,
2016. See Dkt. No. 1-1, p. 3 (Pg. ID 10). Plaintiff filed this action against Defendant
PetSmart, Inc., alleging two claims: ordinary negligence (Count I) and premises
liability (Count II). See id. at pp. 4–6 (Pg. ID 11–13). The Defendant removed the
case to this Court on January 17, 2017. See Dkt. No. 1.
The Defendant filed a Motion for Summary Judgment on October 26, 2017,
and this motion is fully briefed. See Dkt. No. 13. The Court held oral argument on
the motion on Tuesday, January 8, 2018 at 10:00 a.m.
Presently before the Court is the Defendant’s Motion for Summary Judgment
. Ruling from the bench during oral argument on Defendant’s motion, the Court
GRANTED IN PART AND DENIED IN PART the Defendant’s Motion for
Summary Judgment . The Court granted the motion on the ordinary negligence
claim (Count I) and denied the motion on the premises liability claim (Count II).
The Plaintiff is a resident of Livonia, Michigan, and Defendant PetSmart owns
and operates a store in this city. Dkt. No. 1-1, pp. 3–4 (Pg. ID 10–11). On a cold,
snowy winter day in January 2014, Plaintiff entered Defendant’s store. Id. at pp. 4,
45 (Pg. ID 11, 136). While walking down an aisle, she “fell violently to the floor,”
after “slip[ing] on a clear liquid that could not be seen.” Id. at p. 4 (Pg. ID 11).
In an incident report about Plaintiff’s fall, PetSmart employee Karla Eakin
wrote that “there was a strip of water on the floor” and this water “was immediately
cleaned up.” Dkt. No. 17, p. 17–18 (Pg. ID 214–15). The record does not contain
deposition testimony from Eakin.
As to what caused the accident, Plaintiff testified “I have no idea. I slipped on
something. I didn’t see anything and I wasn’t aware.” Dkt. No. 13, p. 45 (Pg. ID
136). She continued “my foot went out from under me like this, so there was
something on the floor. I don’t know what it was, if it was water or what, I’m not
sure.” Id. Plaintiff did say, however, that her jacket was wet after she fell. Id.
Other people in the store when Plaintiff fell testified about the incident. At
the time of the accident, Brooke Bourdage was working in the store for a third-party
vendor. Id. at p. 53 (Pg. ID 144). Bourdage testified that she witnessed Plaintiff’s
fall “out of the corner of [her] eye,” and does not remember seeing water, or any
other hazards, on the floor where Plaintiff fell. Id. at pp. 53–54 (Pg. ID 144–45).
Ten or fifteen minutes after the accident Brittany Blaskay, a PetSmart employee,
surveyed the aisle where Plaintiff fell. Id. at p. 65 (Pg. ID 156). In a deposition,
Blaskay described the condition of the aisle, saying “I saw nothing on the floor. I
didn’t see any water, nothing.” Id.
Under Federal Rule of Civil Procedure 56(a), “[a] 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.” A court must view the
facts, and draw reasonable inferences from the facts, in the light most favorable to
the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
No genuine dispute of material fact exists where the record “taken as a whole could
not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec.
Indus., Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The key inquiry is
“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.”
Anderson, 477 U.S. at 251–52.
Plaintiff asserts two claims in this action. Count I is a claim for ordinary
negligence and Count II is for premises liability. The Defendant is entitled to
summary judgment on Count I, but Count II will survive the summary judgment
The Court will first turn to Plaintiff’s claim for premises liability, Count II.
Michigan law provides that “a premises owner must maintain his or her property in
a reasonably safe condition and has a duty to exercise due care to protect invitees
from conditions that might result in injury.” Riddle v. McLouth Steel Prods. Corp.,
440 Mich. 85, 485 N.W.2d 676, 679 (1992) (citations omitted).
“landowners are not insurers; they are not charged with guaranteeing the safety of
every person who comes onto their land.” Hoffner v. Lanctoe, 492 Mich. 450, 821
N.W.2d 88, 94 (2012). A landowner breaches its duty to an invitee, and is therefore
liable for any harm caused, “when the premises possessor knows or should know of
a dangerous condition on the premises of which the invitee is unaware and fails to
fix the defect, guard against the defect, or warn the invitee of the defect.” Id. (citing
Bertrand v. Alan Ford, Inc., 449 Mich. 606, 537 N.W.2d 185, 186 (1995);
Samuelson v. Cleveland Iron Mining Co., 49 Mich. 164, 13 N.W. 499, 501 (1882)).
The Defendant offers several arguments to convince the Court that the
Plaintiff cannot prove notice or causation as a matter of law. None are persuasive.
The Defendant argues, and the Court disagrees, that all reasonable persons
would conclude that the Plaintiff cannot prove notice.
“ ‘[T]o establish a claim of premises liability, the plaintiff must be able to
prove that the premises possessor had actual or constructive notice of the dangerous
condition at issue.’ ” Lowrey v. LMPS & LMPJ, Inc., 500 Mich. 1, 890 N.W.2d 344,
349 (2016) (per curiam) (quoting Lowrey v. LMPS & LMPJ, Inc., 313 Mich. App.
500, 885 N.W.2d 638, 645 (2015)).
That is, Taylor must “demonstrate that
[PetSmart] knew about the alleged water on the [floor] or should have known of it
because of its character or the duration of its presence.” Id. at 350. (citing Serinto v.
Borman Food Stores, 380 Mich. 637, 158 N.W.2d 485, 486–87 (1968)). Plaintiff
bears the burden of demonstrating a question of fact regarding notice; conversely, a
defendant need not “go beyond showing the insufficiency of plaintiff’s evidence.”
Id. at 349. Indeed, a court can award the moving party summary judgment because
“of the nonmoving party’s failure to produce evidence sufficient to demonstrate an
essential element of its claim.” Id. (citing Bernardoni v. Saginaw, 499 Mich. 470,
886 N.W.2d 109 (2016)).
The Defendant asserts that the Michigan Supreme Court decision in Lowrey
forecloses Plaintiff’s claim. Lowrey is inapposite, however.
In Lowrey, the plaintiff fell down allegedly wet stairs at the defendant’s
restaurant. Id. at 347. The court granted the defendant summary disposition on the
plaintiff’s premises liability claim, holding that there was no genuine dispute
regarding notice, whether actual or constructive. Id. at 346–47.
Here, the Court holds that there is a genuine dispute about whether the
Defendant had constructive notice of the condition, i.e. that the hazard had been
present for a time sufficient to suggest that the defendant should have known of its
existence. In Lowrey, the plaintiff had navigated the stairs several times on the night
she fell, evidence which led the court to determine “that the hazardous condition that
caused plaintiff’s fall had not been present on the steps for the entirety of the
evening.” Id. at 350–51. Taylor, on the other hand, had not gone through the aisle
prior to falling down. This case is also different from Lowrey in that a PetSmart
employee, Karla Eakin, identified water on the floor when she cleaned up the aisle
following Plaintiff’s fall. See Dkt. No. 17, p. 17–18 (Pg. ID 214–15). Indeed, Eakin
described the hazard as “a strip of water” which—viewed in the light most favorable
to the Plaintiff—suggests that it had been on the ground long enough that PetSmart
should have known of its presence.
Accordingly, the Court finds that whether PetSmart had notice of the alleged
hazard is a question for trial.
Plaintiff argues that water on the PetSmart store floor caused her fall. She
claims this argument has merit because after she fell her clothes were wet and
PetSmart immediately cleaned up water from the floor. Id. at p. 13 (Pg. ID 210).
The Court concludes that this evidence provides sufficient grounds for a reasonable
juror to conclude that water on the PetSmart store floor caused Plaintiff’s injuries.
A premises liability claim requires proof of both cause in fact and proximate
cause. See Skinner v. Square D Co., 445 Mich. 153, 516 N.W.2d 475, 479 (1994).
To show cause in fact, a plaintiff must demonstrate “that ‘but for’ the defendant’s
actions, the plaintiff’s injury would not have occurred.” Id. (citing Prosser &
Keeton, Torts (5th ed.), § 41, p. 266)). Conversely, proximate cause “involves
examining the foreseeability of consequences, and whether a defendant should be
held legally responsible for such consequences.” Id. (citing Moning v. Alfono, 400
Mich. 425, 254 N.W.2d 759, 765 (1977); Charles Reinhart Co. v. Winiemko, 444
Mich. 579, 513 N.W.2d 773, 775 n.13 (1994)). “Although causation is sometimes a
jury question, [a] district court may decide causation as a matter of law if the plaintiff
presents insufficient evidence to ‘support a reasonable inference’ of causation.”
Demo v. Red Roof Inns, Inc., 274 F. App’x 477, 478 (6th Cir. 2008) (citations
omitted). Speculation alone is insufficient to raise a genuine dispute of material fact
regarding causation and a defendant’s negligence. Drews v. Am. Airlines, Inc., 68
F. Supp. 3d 734, 742 (E.D. Mich. 2014) (noting that “ ‘[t]he mere occurrence of
plaintiff’s fall is not enough to raise an inference of negligence on the part of the
defendant.’ ” (quoting Stefan v. White, 76 Mich. App. 654, 257 N.W.2d 206, 210
The Defendant contends that Taylor cannot prove causation as a matter of law
because the logic of Kassab v. Target Corp., No. 16-12788, 2017 WL 2880086 (E.D.
Mich. July 6, 2017), controls the outcome in this case. Plaintiff responds that Kassab
is not instructive because it is persuasive authority, her clothes were wet after she
fell, and PetSmart cleaned up water on the floor immediately after she fell. Dkt. No.
17, p. 13 (Pg. ID 210).
The Court agrees with the Plaintiff that Kassab does not control this case, and
that it is indeed distinguishable. In Kassab, the plaintiff fell in an aisle of a Target
store. 2017 WL 2880086, at *1. The plaintiff and others with him during the
accident suggested that he slipped because the floor was wet after just having been
waxed. Id. at *5. The court found that the plaintiff could not show causation as a
matter of law, however, as the “[p]laintiff testified that he felt his foot slip as he fell,
but he admitted that he had ‘no idea’ what his foot might have slipped on or what
caused him to fall.” Id. at *3. The court reasoned that these allegations were too
general to necessitate a finding by a jury. Id. at *5.
The Plaintiff’s allegations here, however, are not too general. Although
Taylor, like the plaintiff in Kassab, testified that she is unaware of why she slipped,
evidence in the record suggests that a hazard caused her fall. Specifically, the report
of the incident from PetSmart employee Karla Eakin. See Dkt. No. 17, p. 17–18 (Pg.
ID 214–15). Eakin’s statement that immediately after the incident she cleaned up “a
strip of water on the floor” makes this case different from Kassab. Dkt. No. 17, p.
17–18 (Pg. ID 214–15). It provides an explanation of why Taylor slipped and fell.
In addition, Taylor’s clothes were wet after she fell, which signals that she slipped
on water. Dkt. No. 13, p. 45 (Pg. ID 136). The plaintiff in Kassab also fell, but
unlike Taylor, his clothes were not wet. Kassab, 2017 WL 2880086, at *1. This
difference also distinguishes Kassab from this case, and indicates that water on the
PetSmart store floor caused Taylor’s fall.
Because a jury could reasonably find that Taylor has demonstrated causation,
the Defendant is not entitled to summary judgment on Plaintiff’s premises liability
Plaintiff asserts that the Defendant’s failure to inspect aisleways in the store
raises a question of fact about whether PetSmart was negligent. Dkt. No. 17, p. 14
(Pg. ID 211). PetSmart, on the other hand, contends that Plaintiff’s negligence claim
fails because it is miscast as a premises liability claim. Dkt. No. 13, p. 29 (Pg. ID
120). According to PetSmart, because the alleged condition arose from the land, and
not from an overt act, Plaintiff’s negligence claim is purely a premises liability claim.
Id. at p. 30 (Pg. ID 121). As the Plaintiff here conceded during the motion hearing,
this claim fails.
“Courts are not bound by the labels that parties attach to their claims.” Buhalis
v. Trinity Continuing Care Servs., 296 Mich. App. 685, 822 N.W.2d 254, 258 (2012)
(citing Manning v. Amerman, 229 Mich. App. 608, 582 N.W.2d 539, 541 (1998)).
Instead, “ ‘the gravamen of an action is determined by reading the complaint as a
whole, and by looking beyond mere procedural labels to determine the exact nature
of the claim.’ ” Id. (quoting Adams v. Adams, 276 Mich. App. 704, 742 N.W.2d
399, 403 (2007)). “Ordinary negligence claims are grounded on the underlying
premise that a person has a duty to conform his or her conduct to an applicable
standard of care when undertaking an activity.” Lymon v. Freedland, 314 Mich.
App. 746, 887 N.W.2d 456, 462 (2016) (citing Laier v. Kitchen, 266 Mich. App.
482, 702 N.W.2d 199, 208 (2005)). Premises liability claims are not grounded in
the same underlying premise; there, “ ‘liability emanates merely from the
defendant’s duty as an owner, possessor, or occupier of land.’ ” Id. (quoting Laier,
702 N.W.2d at 208). Put another way, “ ‘[w]hen an injury develops from a condition
of the land, rather than emanating from an activity or conduct that created the
condition on the property, the action sounds in premises liability.’ ” Id. (quoting
Woodman v. Kera, LLC, 280 Mich. App. 125, 760 N.W.2d 641, 657 (2008)).
Plaintiff’s negligence claim lacks merit because it is a thinly veiled premises
liability claim. Taylor does not allege that PetSmart engaged in some activity and
caused her harm in the process. For instance, in Cote v. Lowe’s Home Ctr., Inc., 896
F. Supp. 2d 637, 638, 649 (E.D. Mich. 2012), a plaintiff’s negligence claim survived
summary judgment. There, the claim stemmed from injuries suffered where an
employee of the defendant was allegedly organizing boxes on a high shelf, and a box
fell on the plaintiff’s head as he was moving through an aisle. Id. The court reasoned
that the harm alleged had occurred not “ ‘by a condition of the land,’ but by an
employee’s activities—specifically, his lack of care in handling the boxes.” Id.
To the contrary, here Taylor contends that she suffered harm as PetSmart
failed to reasonably maintain its store. And, this allegation describes a claim for
premises liability. See, e.g., Hakim v. Detroit Entm’t, LLC, No. 329006, 2017 WL
378123, at *2 (Mich. Ct. App. Jan. 26, 2017) (concluding that as the plaintiff alleged
that conditions on a sidewalk caused him harm, “it is clear that [plaintiff’s] claim
sounds in premises liability”).
Accordingly, Taylor’s ordinary negligence claim will not survive the
Defendant’s summary judgment motion.
In light of the foregoing analysis, the Court will GRANT IN PART and DENY
IN PART the Defendant’s Motion for Summary Judgment . The Defendant is
entitled to summary judgment on Plaintiff’s claim for ordinary negligence (Count I).
Plaintiff’s claim for premises liability (Count II) will survive the motion, however.
The Court will order the parties to attend facilitation prior to Monday, April
23, 2018. See Dkt. No. 6. The parties may use the same facilitator as in their
November 2017 facilitation, and must submit a proposed stipulated order to the
Court by Thursday, March 1, 2018 identifying the facilitator and the date set for
IT IS SO ORDERED.
Dated: January 12, 2018
/s/Gershwin A. Drain
GERSHWIN A. DRAIN
United States District Judge
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
January 12, 2018, by electronic and/or ordinary mail.
/s/ Tanya Bankston
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