Traub v. Target Corporation
Filing
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OPINION AND ORDER GRANTING 8 Defendant's Motion for Summary Judgment. Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DINA MARIE TRAUB,
Plaintiff,
Case No. 14-13026
HON. TERRENCE G. BERG
v.
TARGET CORPORATION,
Defendant.
/
OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT (DKT. 8)
Plaintiff Dina Marie Traub slipped and fell at the Target store in Dearborn
Heights, Michigan. She is now suing Defendant Target Corporation on the ground
that Target’s negligence caused her to fall and injure herself. On May 6, 2015,
Target filed a motion for summary judgment (Dkt. 8). After the motion was fully
briefed, the Court held argument on January 5, 2016. For the reasons explained
below, Target’s motion for summary judgment is GRANTED.
I.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff is a resident of Canton, Michigan. (Dkt. 1, p. 1). Somewhere
between 8 a.m. and 9:30 a.m. on June 8, 2012, she visited a Target store in
Dearborn Heights, Michigan looking for a baby gift for a friend. (Plaintiff Dep.,
Dkt. 10, Ex. A).1 Before the incident in question, Plaintiff was going to cross from
what she believes was the kids’ clothing section to the boys’ or ladies’ clothing
The parties provided different excerpts of the same depositions. Accordingly, the Court will note
the location of each excerpt in the record. For future purposes, the parties are reminded of the
Court’s motion practice guidelines that require that parties file the full text of any source cited in
support of proffered facts in a summary judgment motion. Motion Practice Guideline F; see also
Fantroy v. Dean Vann, No. 14-13341, Dkt. 21 (E.D. Mich. June 15, 2015).
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section (“boys’ clothing section”) on her way to the checkout line. (Id. at 37:2-7;
Plaintiff Incident Diagram, Dkt. 8, Ex. C). As she stepped onto the tile aisle
between the two sections, Plaintiff’s foot slipped and she fell onto her right arm and
shoulder in the carpeted area of the boys’ clothing section. (Plaintiff Dep., Dkt. 10,
Ex. A, 45:10-13).
After she fell, Plaintiff noticed that her feet were wet (id. at 46:7-11) but she
did not check the aisle where she fell to see whether it was wet (id. at 46:22-25).
Before crossing the aisle, however, she did not see standing water or a visible
puddle; she only noticed that the floor was shiny. (Plaintiff Dep., Dkt. 8, Ex. B,
47:1-11). Target employs an outside company to buff and shine its floors nightly, a
process that sometimes extends until 6 or 7 a.m. in the morning. (Aaron Custer
Dep., Dkt. 10, Ex. C, 13:11-21). While she describes the floor as shiny, Plaintiff
acknowledges that there was no “wet floor” sign on the aisle where she fell, or any
mops or water buckets nearby. (Plaintiff Dep., Dkt. 10, Ex. A, 46:15-18). After she
fell, she saw a “wet floor” sign on an aisle perpendicular to the one where she fell,
some 10 to 15 feet away. (Id. at 38:19-39:11).
A Target employee working in a section across from the boys’ clothing section
then came over and asked Plaintiff if she was okay. (Id. at 39:20-41:16). Plaintiff
told the employee that the “floor was very slippery and that [that] really hurt.” (Id.
at 43:5-6). Plaintiff also told her that the floor was “very wet” (id. at 41:18) and that
she had to go (id. at 43:15-16). The employee called for a manager on her walkietalkie but Plaintiff left before a manager came over. (Id. at 41:18-25). Plaintiff says
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that she left immediately after she fell because she was in pain and embarrassed.
(Id. at 50:20-23). Target did not independently create an injury report and states
that it does not have video surveillance of the incident. (Target’s Response to First
Request to Produce, Dkt. 8, Ex. D).
Target explains that it has a procedure in place for inspecting and cleaning
spills. Once an hour, Target Protection Specialists (“TPSs”) are required to walk
the store looking for any safety issues, including spills. (Aaron Custer Dep., Dkt.
10, Ex. C, 15:19-25). Managers, called leaders on duty (“LODs”) conduct the same
inspection. Furthermore, all employees are expected to be aware of potential safety
hazards like spills. (Aaron Custer Dep., Dkt. 8, Ex. E, 23:14-21). As explained by a
Target employee:
If a team member comes across [a] spill, they stand there, use the
walkie to call other people to assist. The person never leaves to
call other people to assist. The person never leaves the spill by
itself. There’s always a team member. We come, clean up the
spill, and we put the wet floor sign out there in case there’s any
moisture left.
(Yvette Brock Dep., Dkt. 10, Ex. D, 17:6-12). Target claims that it places warning
cones at the site of a spill, but that it does not post warning cones to alert costumers
that another, nearby area is wet.2 (Id. at 25:11-20).
Plaintiff injured her right shoulder in the fall and she says that she now lives
with constant pain. (Plaintiff Dep., Dkt. 10, Ex. A, 8:11-21). She states that she
can no longer lift heavy objects, play sports with her children, or go bowling with
At this store, Target used yellow “warning cones” as “wet floor” signs. (Aaron Custer Dep., Dkt. 8,
Ex. E, 18:10-20).
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her family. (Id. at 12-19). Because of this injury, Plaintiff filed suit in the Wayne
County Circuit Court on May 21, 2014 alleging that Target was negligent in failing
to maintain its premises.3 (Dkt. 1, Ex. 2). On August 4, 2014, Target removed the
case to this Court pursuant to 28 U.S.C. § 1446(b)(3). (Dkt. 1). On May 6, 2015,
Target filed for summary judgment. (Dkt. 8).
II. ANALYSIS
A. Standard of Review
“Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with any affidavits, show that
there is no genuine issue as to any material fact such that the movant is entitled to
a judgment as a matter of law.” Villegas v. Metro. Gov't of Nashville, 709 F.3d 563,
568 (6th Cir. 2013); see also Fed. R. Civ. P. 56(a). A fact is material only if it might
affect the outcome of the case under the governing law. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 249 (1986). On a motion for summary judgment, the
Court must view the evidence, and any reasonable inferences drawn from the
evidence, in the light most favorable to the non-moving party. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted);
Redding v. St. Edward, 241 F.3d 530, 531 (6th Cir. 2001).
“As the moving parties, the defendants have the initial burden to show that
there is an absence of evidence to support [plaintiff’s] case.” Selhv v. Caruso, 734
F.3d 554 (6th Cir. 2013); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
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Case No. 2014-14-006624-NO.
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Once the moving party has met its burden, the non-moving party “‘may not rest
upon its mere allegations or denials of the adverse party’s pleadings, but rather
must set forth specific facts showing that there is a genuine issue for trial.’”
Ellington v. City of E. Cleveland, 689 F.3d 549, 552 (6th Cir. 2012) (citing Moldowan
v. City of Warren, 578 F.3d 351, 374 (6th Cir.2009)).
B. Discussion
“In [an] action arising under federal diversity jurisdiction, we apply the
substantive law of Michigan, as the forum state.” Berrington v. Wal-Mart Stores,
Inc., 696 F.3d 604, 607 (6th Cir. 2012). Under Michigan law, to establish a prima
facie claim of negligence, “a plaintiff must introduce evidence sufficient to prove
that (1) the defendant owed a duty to the plaintiff, (2) the defendant breached that
duty, (3) the defendant's breach of its duty was a proximate cause of the plaintiff's
injuries, and (4) the plaintiff suffered damages.” Berryman v. K Mart Corp., 193
Mich. App. 88, 91-92 (1992). “A prima facie case of negligence may be established
by use of legitimate inferences, as long as sufficient evidence is introduced to take
the inferences ‘out of the realm of conjecture.’” Id. at 92 (citing Ritter v. Meijer, Inc.,
128 Mich. App. 783, 786 (1983)).
Target clearly owed a duty to Plaintiff because as a customer, she was an
invitee. See Gainer v. Wal-Mart Stores East, L.P., 933 F. Supp. 2d 920, 925 (E.D.
Mich. 2013). But “[i]nvitors are not absolute insurers of the safety of their invitees.”
Id. (internal quotation marks omitted). Storekeepers need only “provide reasonably
safe aisles for customers.” Clark v. Kmart Corp., 465 Mich. 416, 419 (2001). A
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storekeeper is “liable for injury resulting from an unsafe condition either [1] caused
by the active negligence of himself and his employees or, if otherwise caused, [2]
where known to the storekeeper or [3] is of such a character or has existed a
sufficient length of time that he should have had knowledge of it.” Id. (citing
Serinto v. Borman Food Stores, 380 Mich. 637, 640-41 (1968)). “The mere fact that
a customer slips and is injured on the premises of a storekeeper does not constitute
actionable negligence.” Gainer, 933 F. Supp. 2d at 925 (citing J.K. Winfrey v. S.S.
Kresge Co., 6 Mich. App. 504, 507 (1967)).
Plaintiff raises various arguments alleging that Target was responsible for
the wet tile floor. First, she claims that Target had lax cleaning practices since it
did not have a full-time employee tasked with cleaning spills, but only had a Target
Protection Specialist or Leader on Duty walk around the store once an hour. This
argument fails to address the need to show that Target caused the spill through
active negligence, or was aware of the spill, or that the spill existed for such a long
period of time that Target should have known of it.
Plaintiff’s second argument fares no better. She argues that Target had
recently mopped a large area of the tile floor to clean a spill “likely caused by spilled
food or drink,” including the aisle where she fell, and therefore was responsible for
the wet floor. (Dkt. 10, p. 9). This assertion of fact is not supported in the record.
No witness testified that a Target employee had recently mopped the aisle in the
area where Plaintiff fell. Plaintiff testified that she did not see any “wet floor” sign
posted near the spot where she fell. (Plaintiff Dep., Dkt. 10, Ex. A, 46:15-18). After
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she fell, however, Plaintiff did see a wet floor sign that was located some 10 to 15
feet away from where she fell, in a different aisle. (Id. at 38:19-39:11). Target
claims that it posts a warning cone at the site of a spill, but it does not post
additional warning cones in other locations to alert customers that a different area
nearby is wet. (Aaron Custer Dep., Dkt. 8, Ex. E, 25:11-20). Upon observing a spill,
Target instructs its employees not to leave the area, to obtain assistance in cleaning
the spill, and to post a warning cone at the site of the spill. (Yvette Brock Dep., Dkt.
10, Ex. D, 17:6-12). Plaintiff has not provided any evidence showing that Target
posts warning cones at any location other than a spill site. Plaintiff has also not
provided any evidence to show that Target mopped the area where she fell and then
failed to post a warning cone. While negligence may be established through
drawing legitimate inferences from the available evidence, it cannot be established
by mere conjuncture. In this case, there is no evidence that a spill existed in the
area where Plaintiff fell, nor is there evidence that Target created the spill, was
aware of the spill, or that the spill had existed for a long-enough period of time that
a reasonable storekeeper would have been aware of it.
Plaintiff next argues that Target knew about the spill because there was a
Target employee in a nearby section of the store across from where she fell.
Plaintiff states that she did not see standing water or a visible puddle in the aisle
before she fell; she only saw that the floor had been buffed and appeared to be
shiny. (Plaintiff Dep., Dkt. 8, Ex. B., 47:1-11). If Plaintiff, who was the person
closest to the slippery area, having just crossed the aisle, did not see the spill either
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before or after she fell, the evidence does not support a fair inference that an
employee in a different section of the store would have had knowledge of the spill
simply by virtue of being in the vicinity. And Plaintiff has provided no other
evidence that raises a question of fact as to whether Target knew of the spill.
Lastly, Plaintiff argues that Target should have known about the spill,
under a constructive knowledge theory. This requires that an unsafe condition be of
“such a character or has existed a sufficient length of time that [the defendant]
should have had knowledge of it.” Clark v. Kmart Corp., 465 Mich. at 419.
According to the record, Plaintiff knew that the tile floor was wet because her feet
were wet after she fell. (Plaintiff Dep., Dkt. 10, Ex. A, 46:7-11). But Plaintiff did
not examine the tile floor to see whether there was a spill (id. at 46:22-25), and she
did not see standing water or a visible puddle prior to stepping in the aisle (Plaintiff
Dep. Dkt. 8, Ex. B, 47:1-11). Thus, there is scant evidence in the record to support a
finding that the aisle was wet. And even were the Court to conclude that there is a
genuine issue of material fact as to whether the aisle was actually wet, Plaintiff
would still have to provide evidence that the water was present for a sufficient
length of time to infer that Target had knowledge about it. In Eby v. Target Corp.,
No 13-10688, 2014 WL 941906, at *4 (E.D. Mich. Mar. 11, 2014), the court held that
the defendant did not have constructive notice where, although there was evidence
of a puddle on the floor, the plaintiff did not provide evidence that the puddle had
“existed for a considerable time.” The same was true in Gainer. See 933 F. Supp.
2d at 932-33. There the court stated that “[n]othing in the record indicates when
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the water accumulated on the floor, how much water was on the floor, or what
caused the asserted accumulation of water. Without evidence establishing how long
the dangerous condition existed, it is impossible to rationally conclude that the
condition existed for a length of time sufficient to have enabled a reasonably careful
storekeeper to discover it.” Id. at 932-33.
Here, there is but little evidence supporting Plaintiff’s claim that the floor
was actually wet, and no evidence indicating how long the floor had been wet for
prior to her unfortunate fall. Further, Plaintiff left the store without making an
injury report, and no video evidence or witness statements shed further light on this
issue. Under these factual circumstances, “it is impossible to rationally conclude”
that Target had constructive notice of the spill.
For these reasons, Plaintiff has failed to make out a prima facie claim of
negligence.
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III. CONCLUSION
For the reasons explained above, Defendant Target’s motion for summary
judgment (Dkt. 8) is GRANTED.
SO ORDERED.
Dated: March 9, 2016
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Certificate of Service
I hereby certify that this Order was electronically submitted on March 9,
2016, using the CM/ECF system, which will send notification to all parties.
s/A. Chubb
Case Manager
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