Hanford v. Diversified Maintenance Systems, LLC et al
Filing
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OPINION AND ORDER denying defendants' Motions for Summary Judgment 24 , 27 Signed by District Judge George Caram Steeh. (MBea)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JENNIFER HANFORD,
Plaintiff,
Case No. 18-11363
v.
Hon. George Caram Steeh
J.C. PENNEY CORPORATION, INC.,
and DIVERSIFIED MAINTENANCE
SYSTEMS, INC.,
Defendants.
_________________________________/
OPINION AND ORDER DENYING DEFENDANTS’
MOTIONS FOR SUMMARY JUDGMENT (ECF Nos. 24, 27)
Before the court are Defendants’ motions for summary judgment.
The court heard oral argument on October 28, 2019, and took the matter
under advisement. For the reasons explained below, Defendants’ motions
are denied.
BACKGROUND FACTS
Plaintiff Jennifer Hanford slipped and fell at a J.C. Penney store in
Ann Arbor, Michigan. Hanford worked for U.S. Vision, an optical store
located within J.C. Penney. J.C. Penney contracts with Defendant
Diversified Maintenance Systems (“Diversified”) for janitorial services.
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On February 9, 2015, sometime between 11 a.m. and 12 p.m.,
Hanford was walking with Nicole Fitzgerald to the breakroom, in an
employee-only area of the store. As Hanford walked down the hall to the
breakroom, she did not observe water on the floor, a wet floor sign, or any
cleaning supplies. She purchased a candy bar in the breakroom and then
began walking down the same hallway in the opposite direction. Hanford
slipped and fell forward, landing on her wrist and stomach. She then rolled
over and sat on the floor. She did not see any water on the floor, but
noticed “moisture” on the sole of her shoe and that her rear end was wet.
Neither her hands nor the front of her clothing were wet. Hanford injured
her ankle and broke her wrist as a result of her fall.
In her declaration, Nicole Fitzgerald stated that when Hanford fell, the
“floor was definitely damp like it had just been mopped.” ECF No. 29-5.
She also stated that, later that day, “I recall talking to an older AfricanAmerican male who was one of the custodians. He was an elderly man
and had curly black hair. He asked if Jennifer was okay. He said he hoped
she didn’t fall because he was cleaning and hoped she was okay.” Id.
Approximately one week after Hanford’s fall, her boyfriend, Mark
O’Bryan, was waiting for Hanford to get off work. He ran into Darryl
Richardson, a Diversified employee, in the restroom. According to
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O’Bryan, Richardson said that he was “sorry about Jennifer, I forgot to
leave the wet floor sign out, I just mopped the floors basically in them
areas.” ECF No. 29, Ex. 2 at 24. O’Bryan, who had also worked for
Diversified, testified that Richardson often slept on the job, then clocked out
and finished his tasks.
Plaintiff’s complaint alleges claims of negligence and premises
liability against J.C. Penney and Diversified. Defendants seek summary
judgment in their favor.
LAW AND ANALYSIS
I.
Standard of Review
Summary judgment is appropriate if “there is no genuine issue as to
any material fact and . . . the moving party is entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(c). In reviewing a motion for summary
judgment, the court must determine “‘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.’” Amway Dist.
Benefits Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)).
The facts and any reasonable inferences drawn from the facts must be
viewed in the light most favorable to the nonmoving party. Matsushita Elec.
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Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In
response to a properly supported motion for summary judgment, the
opposing party must come forward with specific evidence showing there is
a genuine issue of fact for trial. A “mere scintilla” of evidence is insufficient
to meet this burden; the evidence must be such that a reasonable jury
could find in favor of the nonmoving party. Anderson, 477 U.S. at 252.
II.
Negligence/Premises Liability
Michigan law governs Plaintiff’s negligence/premises liability claims in
this diversity case. See Chandler v. Specialty Tires of Am. (Tenn.) Inc.,
283 F.3d 818, 823 (6th Cir. 2002). To establish a prima facie case of
negligence, a plaintiff must establish that (1) the defendant owed the
plaintiff a duty; (2) defendant breached its duty; (3) causation; and (4)
damages. Case v. Consumers Power Co., 463 Mich. 1, 6 (2000). The
common law “imposes on every person engaged in the prosecution of any
undertaking an obligation to use due care, or to so govern his actions as
not to unreasonably endanger the person or property of others.” Riddle v.
McLouth Steel Prods. Corp., 440 Mich. 85, 95 (1992) (citation omitted).
With respect to premises liability, “[i]t is well settled in Michigan that a
premises owner must maintain his property in a reasonably safe condition
and has a duty to exercise due care to protect invitees from conditions that
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might result in injury.” Id. at 90. See also Stitt v. Holland Abundant Life
Fellowship, 462 Mich. 591, 596-97 (2000). As an employee working within
its store, Hanford was an invitee of J.C. Penney. See id. (“[I]nvitee status is
commonly afforded to persons entering upon the property of another for
business purposes.”).
A possessor of land is subject to liability for physical harm
caused to his invitees by a condition on the land if the
owner: (a) knows of, or by the exercise of reasonable care
would discover, the condition and realize that the condition
involves an unreasonable risk of harm to such invitees; (b)
should expect that invitees will not discover or realize the
danger, or will fail to protect themselves against it; and (c)
fails to exercise reasonable care to protect invitees against
the danger.
Stitt, 462 Mich. at 597.
III.
Diversified Maintenance’s Motion
Diversified first argues that, under its contract with J.C. Penney, it had
no duty to Plaintiff. See Fultz v. Union-Commerce Assocs., 470 Mich. 460,
467 (2004) (holding that a defendant must owe a duty to the plaintiff that is
“separate and distinct from the defendant’s contractual obligations”).
Diversified’s argument is misplaced. Plaintiff’s cause of action is not based
upon Diversified’s failure to perform its contractual obligations to J.C.
Penney. Rather, Plaintiff “claims that defendant breached the common-law
duty to exercise reasonable care and avoid harm when one acts.” Loweke
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v. Ann Arbor Ceiling & Partition Co., L.L.C., 489 Mich. 157, 168-71 (2011).
By performing an act under a contract, Defendant “was not relieved of its
preexisting common-law duty to use ordinary care in order to avoid physical
harm to foreseeable persons and property in the execution of its
undertakings.” Id.; see also Leone v. BMI Refractory Servs., Inc., 893 F.3d
359, 363 (6th Cir. 2018) (when a party acts it has a duty “to perform the act
in a nonnegligent manner”).
Diversified also argues that no hazardous condition existed, and that
even if one did, Diversified did not create the hazardous condition.
Diversified bases this argument on the fact that Hanford did not observe
the floor to be wet or recently mopped, and that Darryl Richardson was
allegedly not working or in the building at the time of her fall. Plaintiff’s
theory is that Richardson mopped the floor and failed to put out a wet floor
sign. Plaintiff points to Fitzgerald’s testimony that the floor appeared damp,
as well as Richardson’s alleged admission to both Fitzgerald and O’Bryan
that he had mopped before Plaintiff fell. Although Diversified contends that
Richardson clocked out at 9:41 a.m. on the day Hanford fell (between 11
a.m. and 12 p.m.), O’Bryan testified that Richardson often slept during
working hours and then worked off the clock to finish his tasks. Viewing the
evidence in the light most favorable to Plaintiff, there is a question of fact
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regarding whether Diversified breached its duty by creating a hazardous
condition that led to Plaintiff’s fall. See Berryman v. K Mart Corp., 193
Mich. App. 88, 91-93 (1992) (question fact when “the evidence leads to an
inference that defendant created the condition” that caused the plaintiff’s
fall).
Diversified also argues that it did not have notice of any hazardous
condition. However, “[b]ecause the evidence leads to an inference that
defendant created the condition that caused [the plaintiff’s] fall, proof of
notice is unnecessary.” Id. at 93.
Finally, in its reply brief, Diversified asserts that it cannot be held
liable for work that Richardson allegedly performed off the clock.
Diversified argues that such work was outside the scope of Richardson’s
employment. See generally Rogers v. J.B. Hunt Transport, Inc., 466 Mich.
645, 651 (2002) (“An employer is not vicariously liable for acts committed
by its employees outside the scope of employment, because the employee
is not acting for the employer or under the employer’s control.”). However,
the fact that Richardson performed work on behalf of his employer off the
clock does not necessarily remove that work from the scope of his
employment. See Matouk v. Michigan Municipal League Liability &
Property Pool, 320 Mich. App. 402 (2017). An employee acts within the
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scope of his employment when he is “engaged in the service of his master
or while about his master’s business.” Hamed v. Wayne Cty., 490 Mich. 1,
11 (2011). An employee’s conduct is within the scope of employment if “(a)
it is of the kind he is employed to perform; (b) it occurs substantially within
the authorized time and space limits; [and] (c) it is actuated, at least in part,
by a purpose to serve the master.” Matouk, 320 Mich. App. at 413 (quoting
Restatement of Agency (Second) § 228)). “Conduct of a servant is not
within the scope of employment if it is different in kind from that authorized,
far beyond the authorized time or space limits, or too little actuated by a
purpose to serve the master.” Id. at 414.
Thus, the analysis is more complicated than Defendant suggests.
The parties have not fully briefed this issue. Moreover, “the issue of
whether the employee was acting within the scope of his employment is
generally for the trier of fact.” Id. at 408-409. The court may only decide
the issue as a matter of law if “it is clear that the employee was acting to
accomplish some purpose of his own.” Id. In this case, there is no
evidence that Richardson “was acting to accomplish some purpose of his
own” by mopping the floor, even if he did so after his designated work
hours.
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For these reasons, the court will deny Diversified’s motion for
summary judgment.
IV.
J.C. Penney’s Motion
J.C. Penney argues that it is not liable because it had no notice of
any unsafe condition. See Stitt, 462 Mich. at 597. As discussed above,
however, Plaintiff has raised a question of fact regarding whether
Diversified created an unsafe condition by failing to put up a wet floor sign
after mopping. The issue is not whether J.C. Penney had notice of the
unsafe condition (and was negligent itself), but whether J.C. Penney is
vicariously liable for Diversified’s negligence. When a property owner
“entrusts repairs to an independent contractor, the general weight of
authority is that his duty of care in making them cannot be delegated, and
he will be liable for the contractor’s negligence.” Misiulis v. Milbrand
Maintenance Corp., 52 Mich. App. 494, 502, 508 (1974) (holding that
defendant premises owners were “vicariously liable for the negligence of
their independent contractor in making repairs on the leased premises
which resulted in injury to plaintiff, a business invitee”). See also Richter v.
American Aggregates Corp., 522 Fed. Appx. 253, 260-61 (6th Cir. 2013)
(noting that a landlord’s duty to exercise reasonable care in making repairs
is “nondelegable”).
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J.C. Penney does not respond to Plaintiff’s argument that it is
vicariously liable for Diversified’s negligence. Accordingly, it has not met its
burden of demonstrating that it is entitled to summary judgment.
CONCLUSION
IT IS HEREBY ORDERED that Defendants’ motions for summary
judgment (ECF Nos. 24, 27) are DENIED.
Dated: November 4, 2019
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
November 4, 2019, by electronic and/or ordinary mail.
s/Marcia Beauchemin
Deputy Clerk
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