Proctor et al v. Panera, LLC
OPINION AND ORDER DENYING 45 Defendant's Second Motion for Summary Judgment. Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
HEIDI PROCTOR, as next friend of,
ETHAN PROCTOR, a minor, and
HEIDI PROCTOR and BRIAN PROCTOR,
Case No. 14-14824
Hon. Terrence G. Berg
OPINION AND ORDER DENYING DEFENDANT’S SECOND MOTION FOR
SUMMARY JUDGMENT (DKT. 45)
This is a case about a young boy who reached into a crevice between the seat
cushions in a booth at Panera Bread and punctured his finger on a medical needle
that was there. The Court already entered summary judgment for Defendant on all
but Plaintiffs’ premises liability claim. Dkt. 35. A detailed discussion of the facts of
this case appears in the Court’s previous summary judgment order. The Court will
not repeat what is contained in that order because the question currently before the
Court is simple and narrow: Does the Michigan Supreme Court’s recent opinion in
Lowrey v. LMPS & LMPJ, Inc., 500 Mich. 1 (2016) (Lowrey II), require this Court to
reverse course from its previous ruling and grant summary judgment to Defendant
on Plaintiffs’ premises liability claim?
In the Court’s first summary judgment order, it relied on Lowrey v. LMPS &
LMPJ, Inc., 2015 WL 8484482 (Mich. Ct. App. Dec. 10, 2015) (Lowrey I), for the
proposition that to obtain summary judgment on a premises liability claim, a property
owner must present evidence of what constitutes a “reasonable inspection” of the
property. Dkt. 35, Pg. ID 845. The Court then concluded that Defendant had failed to
present evidence showing what a reasonable inspection of its booths would entail.
Dkt. 35, Pg. ID 846.
Lowrey II reversed Lowrey I in part because the Michigan Court of Appeals
required the property owner to present such evidence. Lowrey II, 500 Mich. at 8-9.
As the Michigan Supreme Court made clear, that Court “has never required a
defendant to present evidence of a routine or reasonable inspection” to prove “a
premises owner’s lack of constructive notice of a dangerous condition of its property.”
Id. at 10. So Defendant is correct that Lowrey II changes the rule of Lowrey I upon
which the Court based its denial of summary judgment. But even in light of the
holding in Lowrey II, Defendant has not demonstrated that it is entitled to summary
In Lowrey II, the Michigan Supreme Court restated the rule that “[a] plaintiff
had to establish that [a] defendant, as a premises owner, possessed actual or
constructive notice of the dangerous condition.” 500 Mich. at 10. So to avoid summary
judgment, a plaintiff must “proffer evidence sufficient to demonstrate a question of
fact regarding defendant's actual or constructive notice of the hazardous condition.”
Id. at 11. Thus a defendant may establish its entitlement to summary judgment “by
demonstrating that [a] plaintiff failed to present sufficient evidence of notice” of the
hazard. Lowrey II, 500 Mich. at 10.
As the Court noted in its first summary judgment order, the only type of notice
at issue here is constructive notice, Dkt. 35, Pg. ID 845, which Plaintiffs can show
through evidence of the needle’s “character or of the duration of its presence.”
Lowrey II, 500 Mich. at 11. Specifically, to prevail on their claim Plaintiffs must show
that “the hazard was of such a character, or had existed for a sufficient time, that a
reasonable premises possessor would have discovered it.” Id. at 11-12. So to survive
Defendant’s motion, Plaintiffs must have presented evidence of the needle’s character
or duration in the booth sufficient to establish a genuine issue of material fact such
that a reasonable jury could find that a reasonable possessor of premises would have
discovered the needle.
Defendant argues that Plaintiffs have presented no evidence that the needle was
of such a character that a reasonable premises possessor would have discovered it.1
Dkt. 45, Pg. ID 936. For support, Defendant compares this case to the facts in Lowrey,
where the plaintiff allegedly slipped on wet stairs after having consumed a number
of shots of alcohol, and for evidence that the stairs were wet submitted that her pants
felt wet after she fell. Lowrey II, 500 Mich. at 12. Defendant’s comparison is not well
taken. In Lowrey, there was no evidence that there was even a hazard; the plaintiff
did not have a picture of the allegedly wet steps or eye-witness testimony that there
was a puddle on one of the steps. Id. at 12. Here, however, there are multiple pictures
Defendant presents a similar argument about the duration of the needle’s presence
in the booth, but the Court need not reach that argument because Plaintiff has
presented sufficient evidence of the needle’s character to create a genuine issue of
fact on whether Defendant had constructive notice.
of the needle. See Dkt. 45-8. And as the Court has already concluded, the size and
nature of the needle is sufficient evidence to permit a jury to conclude that “a routine,
workmanlike wiping and inspection of the seating area of the booth, in the area where
EP was injured, would have resulted in the discovery of the needle or the mitigation
of the hazard it created.” Dkt. 35, Pg. ID 847. If a jury were to conclude that a
reasonable owner of a restaurant would conduct a routine, workmanlike wiping and
inspection, it could further conclude that such a reasonable premises possessor would
have discovered the needle, and thus could find for Plaintiffs. Consequently,
Defendant’s motion is DENIED.
Dated: May 9, 2017
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Certificate of Service
I hereby certify that this Order was electronically submitted on May 9, 2017,
using the CM/ECF system, which will send notification to all parties.
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