Radney-Maxwell et al v. Menard, Inc.
ORDER granting 22 Defendant's Motion for Summary Judgment. Signed by District Judge Terrence G. Berg. (AChu)
Case 2:21-cv-11851-TGB-KGA ECF No. 30, PageID.467 Filed 01/19/23 Page 1 of 11
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Individually and as Next Friend
of MAKENZI MAXWELL, a
DEFENDANT’S MOTION FOR
MENARD, INC., a Foreign Profit
(ECF NO. 22)
Latasha Radney-Maxwell sued Menard, Inc. after her daughter
slipped and fell in one of its stores. Menard has moved for summary
judgment. For the reasons that follow, the motion will be GRANTED.
On August 19, 2018, Brandon Maxwell met his friend, Shonee
McNair, at a Menard’s store to help her pick out flooring for a homeremodeling project.1 Maxwell Dep. 7:18-8:15, ECF No. 22-3, PageID.19091. Maxwell’s four-year-old daughter, Makenzi, accompanied him. Id. at
During their depositions, neither Maxwell nor McNair could recall
with any certainty the date or even the year of the incident. (See Maxwell
Dep. 8:18, PageID.192 (“What was this, 2014? 2016, I’m sorry, correct?”);
McNair Dep. 5:3, PageID.251 (“It wasn’t 2018. You have the wrong date.
… Maybe 2020.”).) No incident reports or medical records reflecting a
date of injury are part of the record. But Menard has not raised a statuteof-limitations defense, and the parties appear to agree for purposes of
this motion that August 19, 2018 is the correct date.
Case 2:21-cv-11851-TGB-KGA ECF No. 30, PageID.468 Filed 01/19/23 Page 2 of 11
9:12-21, 18:21-25, PageID.192, 201. The two trailed after McNair in the
store as she shopped around. Id. at 24:2-8, PageID.207.
Makenzi slipped on a piece of paper as the group browsed in the
ceramic tile aisle. Id. at 26:16-27:25, PageID.209-10. Maxwell and
McNair have slightly differing recollections of the incident. According to
Maxwell, Makenzi was walking “maybe a half a step” behind him and fell
while he and McNair were turned away from her. Id. at 27:12-29:23,
PageID.210-12. McNair, meanwhile, remembers facing Makenzi from
about fifteen feet away and seeing her fall backwards and hit her head
as she wandered around the aisle commenting about how pretty the tiles
were. McNair Dep. 7:23-8:17, 11:19-13:22, ECF No. 22-4, PageID.252-53.
Neither Maxwell nor McNair saw paper on the ground or knew how
long it had been there before Makenzi fell. Maxwell Dep. 32:2-11, 41:1219, PageID.215, 224; McNair Dep. 11:15-12:9, 17:10-17, PageID.253-54.
Retrospectively, McNair recalls “see[ing] something on the floor” that
looked like “it was part of the floor … but apparently it wasn’t;” Maxwell
remembers that it “kind of blended with the floor.” McNair Dep. 8:18-9:3,
PageID.252; Maxwell Dep. 32:3-11, PageID.215. Maxwell remembers
only one “almost clear” piece of paper, while McNair recalls “at least
three” white, 12” x 12” papers, of the type used to separate ceramic tiles,
coated in slick wax. Maxwell Dep. 32:21-33:22, PageID.215-16, McNair
Dep. 15:11-16:17, PageID.254.
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Maxwell scooped Makenzi up while McNair became “kind of
hysterical,” walked over, picked up the paper, balled it up, and put it on
a shelf. Maxwell Dep. 32:15-20, PageID.215. Makenzi was dazed, staring
blankly, and not responsive. Id. at 36:9-20, PageID.219. An employee who
was helping a customer at a nearby kiosk yelled out, “Oh, shoot, she fell!”
but did not assist. Id. at 31:14-18, PageID.214. Maxwell testifies that he
rushed Makenzi to the customer service desk, where he got an icepack
and filled out an incident report, then headed to urgent care. Id. at 37:1440:20, PageID.220-23. In the flurry of events, nobody took photos of the
aisle or the paper on which Makenzi slipped. Id. at 34:12-23, PageID.217.
The incident report has not been made a part of the record.
Three years later, in 2021, Makenzi’s mother, Latasha RadneyMaxwell, sued Menard in Wayne County Circuit Court on Makenzi’s
behalf, asserting claims for negligence and premises liability.2 (ECF No.
1-2.) She alleged that Makenzi was suffering ongoing complications,
including cognitive and neurological deficits, headaches, and a decrease
Radney-Maxwell did not number the claims in her complaint. Her
pleading makes a passing reference to a potential statutory claim under
MCL § 554.139, which concerns the implied warranty of habitability for
a residential premises. (ECF No. 1-2, PageID.14.) The parties do not
discuss this claim in their briefs. The Court will construe its inclusion in
the complaint as a scrivener’s error. There is no dispute that the incident
occurred on commercial, not residential, premises, so MCL § 554.139 is
Case 2:21-cv-11851-TGB-KGA ECF No. 30, PageID.470 Filed 01/19/23 Page 4 of 11
in her motor skills. Radney-Maxwell is a Michigan resident and Menard
is not, so Menard chose to remove the case to federal court. (ECF No. 1.)
Menard now moves for summary judgment.
A party is entitled to summary judgment if it “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); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247 (1986). No genuine material factual dispute
exists if “the record taken as a whole could not lead a rational trier of fact
to find for the nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
At summary judgment, the Court construes the evidence in the
light most favorable to the nonmoving party and draws all reasonable
inferences in her favor. Id. The nonmoving party’s evidence need not be
in an admissible form. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
But she must “show that she can make good on the promise of the
pleadings by laying out enough evidence that will be admissible at trial
to demonstrate that a genuine issue on a material fact exists.” Alexander
v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009).
The parties agree that Radney-Maxwell’s claims are governed by
Michigan law. Guthre v. Lowe’s Home Ctrs., Inc., 204 F. App’x 524, 525
(6th Cir. 2006).
Case 2:21-cv-11851-TGB-KGA ECF No. 30, PageID.471 Filed 01/19/23 Page 5 of 11
A. Ordinary Negligence
As a preliminary matter, Menard argues that it cannot be held
notwithstanding the labels attached to Radney-Maxwell’s claims, the
gravamen of her allegations is that her daughter was injured by a
dangerous condition on its premises. (ECF No. 22, PageID.175-76.)
Michigan law distinguishes between claims arising from ordinary
negligence and claims premised on conditions of land. Buhalis v. Trinity
Continuing Care Servs., 822 N.W.2d 254, 258 (Mich App. 2012). A claim
for ordinary negligence is “based 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.” Jeffrey-Moise v. Williamsburg Towne
Houses Coop., Inc., 971 N.W.2d 716, 723 (Mich. App. 2021). A premises
liability claim, meanwhile, arises solely from a defendant’s duty as an
owner or occupier of a premises. Buhalis, 822 N.W.3d at 258.
Radney-Maxwell responds that a claim for premises liability does
not preclude a separate, independent claim for ordinary negligence. (ECF
No. 25, PageID.373.) She highlights her allegations that her daughter’s
injuries do not stem solely from a condition on Menard’s premises, but
also from an employee’s negligence in “placing a display with loose paper
… where the paper was likely to end up on the floor and cause a hazard.”
(ECF No. 25, PageID.377.)
Case 2:21-cv-11851-TGB-KGA ECF No. 30, PageID.472 Filed 01/19/23 Page 6 of 11
Radney-Maxwell is correct that, under certain circumstances, a
plaintiff may maintain claims for both ordinary negligence and premises
liability. In Pernell v. Suburban Motors Co., Inc., 2013 WL 1748573, at
*5 (Mich. App. Apr. 23, 2013), for example, the Michigan Court of Appeals
recognized that, in addition to a premises liability claim based on puddles
on the floor of an auto dealership, the plaintiff could maintain a separate
claim for ordinary negligence based on allegations that a defendantemployee had carelessly escorted her across the service bay where there
were potentially dangerous accumulations of fluids. And in Sundberg v.
Oberstar, Inc., 2020 WL 6685075, at *4 (Mich. App. Nov. 12, 2020), the
court similarly held that, in addition to a premises liability claim based
on the plaintiff’s fall through a significant (over 7 feet) drop-off in an unlit
room in an office building, the plaintiff had an independent claim for
ordinary negligence based on allegations that an employee pointed her in
the direction of the drop-off when she asked where the bathroom was and
then failed to intercede when he saw her headed toward it.
But as the court explained in Sundberg, the key question is whether
Makenzi’s injury is tied to some conduct by an employee in addition to
the existence of a hazard on its premises. Id. Simply “alleging that [the]
defendant created the condition does not ‘transform the claim into one for
ordinary negligence.’” Jahnke v. Allen, 865 N.W.2d 49, 51-52 (Mich. App.
2014) (quoting Buhalis, 822 N.W.2d at 254). A review of the complaint
and summary judgment record shows that Radney-Maxwell’s claim
Case 2:21-cv-11851-TGB-KGA ECF No. 30, PageID.473 Filed 01/19/23 Page 7 of 11
concerns an injury occurring because of a condition on Menard’s
premises—i.e., a poorly stacked shelf leading to papers falling on the
floor, creating a tripping hazard. There are no allegations or evidence of
any additional conduct by a Menard employee, such as bumping into
Makenzi or leading her towards the hazard, that would give rise to a
claim for ordinary negligence. And Radney-Maxwell has not raised any
claims relating to Menard’s response to the incident—for instance, a
claim that the employee who saw the fall breached some sort of duty of
care by failing to assist in the aftermath. Radney-Maxwell’s claim is thus
a common-law premises liability claim.
B. Premises Liability
Menard contends that it is entitled to summary judgment because
the record contains no evidence showing that it knew or should have
known that there was a hazardous condition in its store. (ECF No. 22,
A storekeeper must “provide reasonably safe aisles for the
customers.” Guthre, 204 F. App’x at 526 (internal quotations omitted). To
establish a premises liability claim, a plaintiff needs evidence that an
unsafe condition was “known to the storekeeper or [was] of such a
character or has existed a sufficient length of time that he should have
had knowledge of it.” Id. Put another way, a plaintiff needs evidence that
a storekeeper-defendant had actual or constructive notice of a hazard.
Case 2:21-cv-11851-TGB-KGA ECF No. 30, PageID.474 Filed 01/19/23 Page 8 of 11
Radney-Maxwell appears to concede she has no evidence that
Menard actually knew there was a tripping hazard in the ceramic tile
aisle. But, she argues, Menard had an affirmative duty to inspect its
premises and eliminate hazards. (ECF No. 25, PageID.372-73.) She
asserts that, from Maxwell’s testimony that a nearby employee saw
Makenzi fall, a reasonable juror could infer that the employee had
neglected this duty. She further asserts that, from McNair’s testimony
that there were “several” pieces of paper on the floor, a juror could infer
that the hazard was obvious enough that a reasonably careful employee
should have seen it and therefore known about it. (Id.)
Radney-Maxwell’s problem, however, is that she has no evidence of
how long the paper (or papers) was (or were) on the floor. While it is not
necessary for a plaintiff to have personal knowledge of how long a hazard
existed, there must at least be some affirmative evidence suggesting that
it existed for more than mere seconds. Guthre, 204 F. App’x at *4. The
employee who allegedly witnessed the accident has not been identified,
and there is no testimony about how long she was in the area or whether
she saw the paper. The only evidence supporting Radney-Maxwell’s claim
is Maxwell and McNair’s testimony. Both walked past the paper without
incident and without seeing it. And both admit that they do not know
how long the paper was on the floor and that they did not see it until after
Makenzi fell. Indeed, Maxwell testified at his deposition that, “If it had
Case 2:21-cv-11851-TGB-KGA ECF No. 30, PageID.475 Filed 01/19/23 Page 9 of 11
been there two hours or ten minutes, no, I can’t answer that.” Maxwell
Dep. 41:12-19, ECF No. 22-3, PageID.224.
To be sure, Menard was under an affirmative duty to inspect its
premises. But the Michigan Supreme Court has made clear that a
defendant need not provide “proof of reasonable inspection” to avoid
liability in a slip-and-fall case. Lowrey v. LMPS & LMPJ, Inc., 890
N.W.2d 344, 349 (Mich. 2016). Instead, the burden is on the plaintiff to
show that a hazard was “of such a character, or had existed for a
sufficient time, that a reasonable premises possessor would have
discovered it.” Id. at 350. Here, there is no evidence suggesting that the
condition of the paper or the aisle would support an inference of neglect—
e.g., footprints on the paper or dust on the floor. See Guthre, 204 F. App’x
at 527 (no inference of constructive notice possible where plaintiff
admitted she did not know how long sand was on floor before she slipped
and had no evidence of footprints or cart lines to show sand was spread
through store by somebody other than her); cf. Clark v. Kmart, 634
N.W.2d 347, 349 (Mich. 2001) (jurors could infer from testimony about
timing of lane closure that grapes were on floor for at least one hour
before plaintiff slipped on them); Shiemke v. Target Corp., 2014 WL
7204971, at *6 (E.D. Mich. Dec. 17, 2014) (jurors could infer from the fact
that puddle on which plaintiff slipped was partially dried up that it had
been there for longer than a few minutes). A juror would be left to
speculate as to when the paper fell to the floor to determine whether
Case 2:21-cv-11851-TGB-KGA ECF No. 30, PageID.476 Filed 01/19/23 Page 10 of 11
Menard employees should have known about it. Such speculation is not
permitted under Michigan law. Guthre, 204 F. App’x at 527.
Radney-Maxwell suggests that the manner in which items were
stacked on the shelf in the ceramic tile aisle created an intolerable risk
that loose papers would fall and create a tripping hazard. But she has
presented no evidence of the condition of the aisle or its shelves. McNair
and Maxwell did not describe either during their depositions. In response
to a compound question asking both whether he saw pieces of paper
between the tiles on the shelf and whether he knew whether such papers
were there, Maxwell responded, “Yes.” Maxwell Dep. 33:9-19, ECF No.
22-3, PageID.216. The only evidence of what the aisle looked like is a
photograph of submitted by Menard, taken at an unknown date. Def’s Ex.
A, ECF No. 22-2, PageID.182. This photograph depicts boxes of tiles
neatly stacked on the shelves. There are no loose papers. There is a
portion of one visible sheet of paper sticking out from the top of one of the
boxes. Whether this paper was jostled out of place by a customer who
opened the box to inspect tiles or for some other reason, it is not evidence
of a hazard that would have alerted the owner of the premises. There is
nothing evident in the arrangement of the boxes or shelves that suggests
Menard should have known there was a risk of loose papers falling to the
floor. As McNair speculated about the papers during her deposition,
“somebody [must have] pulled them off the shelf and threw them on the
floor, apparently.” McNair Dep. 15:21-16:2, ECF No. 22-4, PageID.254.
Case 2:21-cv-11851-TGB-KGA ECF No. 30, PageID.477 Filed 01/19/23 Page 11 of 11
But there is no evidence showing when this may have happened, or
whether the paper was there for a long enough period of time for Menard
to be placed on notice of its presence.
Radney-Maxwell has failed to present any evidence that Menard
knew or should have known there was a tripping hazard in the aisle, and
she therefore cannot establish a case for premises liability.
Menard’s Motion for Summary Judgment is GRANTED, and this
case will be DISMISSED in its entirety with prejudice.
IT IS SO ORDERED, this 19th day of January, 2023.
BY THE COURT:
/s/Terrence G. Berg
TERRENCE G. BERG
United States District Judge
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