Peterson v. Outback Steakhouse, Inc. et al

Filing 53

OPINION and ORDER Granting Defendant's 50 Motion for Summary Judgment. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RENATA PETERSON,
Plaintiff,

Civil Case No. 15-13980
Honorable Linda V. Parker

v.
OUTBACK STEAKHOUSE
OF FLORIDA, LLC,
Defendant.
________________________________/
OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT (ECF NO. 50)
Plaintiff Renata Peterson commenced this premises liability action in
Michigan state court against Defendants Outback Steakhouse, Inc. and Bloomin’
Brands, Inc. on October 8, 2015. Presently before the Court is Defendant Outback
Steakhouse of Florida, LLC’s Motion for Summary Judgment, filed March 21,
2018. (ECF No. 50.) The motion has been fully briefed. Finding the legal
arguments sufficiently presented in the parties’ briefs, the Court is dispensing with
oral arguments pursuant to L.R. 7.1(f)(2). For the reasons that follow, the Court
grants Defendant’s motion.
I.

Factual and Procedural History
On May 30, 2014, Plaintiff and her family dined at Outback Steakhouse in

Shelby Township, MI. (ECF No. 51 at Pg ID 1057.) They arrived sometime
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around dusk and dined for two to three hours. (ECF No. 50 at Pg ID 1029, Exh. F,
Mack Peterson, Jr. Dep. Tr. 15:2-6 (July 10, 2017).) Plaintiff exited the restaurant
approximately around 10:30 p.m. with her son, Mack Peterson III, and grandson,
Mack Peterson, IV, while her husband, Mack Peterson, Jr. used the facilities.
(ECF No. 51 at Pg ID 1057.) Plaintiff’s son testified that he was carrying his son
and walking in front of Plaintiff. (ECF No. 50, Ex. H, Mack Peterson, III, Dep. Tr.
16:23-17:8 (July 10, 2017).) As she was returning to her vehicle, Plaintiff slipped
and fell in the parking lot owned and operated by Defendant. (ECF No. 42 at Pg
ID 1001.) According to Plaintiff, grease had accumulated next to an underground
grease trap system, which caused her to fall and suffer severe injuries. (Id.)
Plaintiff testified that she did not see the grease prior to her fall, and she did not see
the grease when she entered the restaurant. (ECF No. 50, Ex. A, Renata Peterson
Dep. Tr. 47:16-23 (May 2, 2017).) However, Plaintiff testified that she walked a
different path when she exited the restaurant. (ECF No. 50, Ex. A, Renata
Peterson Dep. Tr. 48:2-4.)
Shortly thereafter, Plaintiff’s husband exited the restaurant and witnessed
Plaintiff on the ground. (ECF No. 50, Ex. F, Mack Peterson, Jr. Dep. Tr. 17:1218:16.) After helping Plaintiff up and showing her to a nearby bench, Plaintiff’s
husband went inside the restaurant to inform the manager of the incident in the
parking lot. (ECF No. 50, Ex. F, Mack Peterson Jr. Dep Tr. 19:3-8, 21:5-11).)
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Arturo Word, the manager on duty, testified that there was grease in the parking lot
where Plaintiff had fallen, which was located near the underground grease trap
system. (ECF No. 50, Ex. J, Arturo Word Dep. Tr. 45:18-23 (Jun. 16, 2017).) Mr.
Word testified that, once outside, he immediately noticed the grease without
anyone pointing it out to him. (ECF No. 50, Ex. J, Word Dep. Tr. 44:24-45:2;
45:15-17.)
According to Larry LaFray, managing partner of Outback Steakhouse of
Florida, LLC, the grease trap system works in conjunction with the plumbing
system. (ECF No. 50, Exh. C, Larry LaFray Dep. Tr. 9:6-10:19 (Jun. 16, 2017).)
Its purpose is to prevent food debris and grease from entering the sewer system.
(Id. at. 10:25-11:1.) On a monthly basis, a third-party contractor, Dover Grease,
services the trap system and removes the accumulated grease. (Id. at 11:5-20.)
Mr. LaFray testified that the grease overflow was a result of two pump failures in
the grease trap system. (Id. at 22:2-3.)
Mr. Word testified that included in the manager’s daily opening checklist is
an inspection of the parking lot, but it is discarded daily. (ECF No. 50, Ex. J,
Word Dep. Tr. 30:23-31:23.) Additionally, throughout the day as shifts change,
employees scan the parking lot for any unsafe conditions. (Id.) There was no
testimony that anyone had seen grease in the parking lot prior to Plaintiff’s fall, as
well as to how long the grease had been in the parking lot prior to Plaintiff’s fall.
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Following this incident, Plaintiff filed suit in the Circuit Court for the
County of Macomb on October 8, 2015. (ECF No. 1 at Pg ID 2.) Defendants filed
a Notice of Removal to this Court on November 12, 2015. On August 16, 2017,
Defendants filed a motion for summary judgment, arguing (1) Defendants did not
have actual or constructive notice of the alleged condition of the parking lot; (2)
the alleged condition of the parking lot was open and obvious; (3) Defendant
Outback Steakhouse, Inc. is not an entity, and therefore, is an improper party; and
(4) Defendant Bloomin’ Brands did not have possession and control of the parking
lot. (ECF No. 32.) In an Opinion and Order dated January 11, 2018, this Court,
granted, in part, Defendants’ motion for summary judgment and dismissed
Bloomin’ Brands, Inc. (ECF No. 40.) In a separate Opinion and Order dated
January 11, 2018, this Court granted Plaintiff’s motion to amend the complaint to
name the proper party, Outback Steakhouse of Florida, LLC, and dismissed
Outback Steakhouse, Inc. (ECF No. 41.)
On March 21, 2018, Defendant filed the instant motion, arguing that
Defendant did not have actual or constructive notice of the alleged condition in the
parking lot and that the condition was open and obvious. (ECF No. 50.)
II.

Standard of Review
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is

appropriate “if the movant shows that there is no genuine dispute as to any material
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fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The central 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 v. Liberty Lobby, Inc., 477 U.S.
242, 251-52 (1986). After adequate time for discovery and upon motion, Rule 56
mandates summary judgment against a party who fails to establish the existence of
an element essential to that party’s case and on which that party bears the burden
of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The movant has the initial burden of showing “the absence of a genuine
issue of material fact.” Id. at 323. Once the movant meets this burden, the
“nonmoving party must come forward with specific facts showing that there is a
genuine issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (internal quotation marks and citation omitted). To
demonstrate a genuine issue, the nonmoving party must present sufficient evidence
upon which a jury could reasonably find for that party; a “scintilla of evidence” is
insufficient. See Liberty Lobby, 477 U.S. at 252.
“A party asserting that a fact cannot be or is genuinely disputed” must
designate specifically the materials in the record supporting the assertion,
“including depositions, documents, electronically stored information, affidavits or
declarations, stipulations, admissions, interrogatory answers, or other materials.”
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Fed. R. Civ. P. 56(c)(1). The court must accept as true the non-movant’s evidence
and draw “all justifiable inferences” in the non-movant’s favor. See Liberty Lobby,
477 U.S. at 255.
III.

Applicable Law & Analysis
The duty that a possessor of land owes to another person who is on the land

depends on the latter person’s status.” Hampton v. Waste Mgmt. of Mich., Inc.,
601 N.W.2d 172, 175 (1999). The parties agree that Plaintiff was lawfully on
Defendant’s premises as an invitee at the time of the incident. (See ECF No. 50 at
Pg ID 1037; ECF No. 51 at Pg ID 1059.)
“In general, a premises possessor owes a duty to an invitee to exercise
reasonable care to protect the invitee from an unreasonable risk of harm caused by
a dangerous condition on the land.” Lugo v. Ameritech Corp., 629 N.W.2d 384,
386 (Mich. 2001). This duty arises where there is “an unreasonable risk of harm
caused by a dangerous condition of the land that the landowner knows or should
know the invitees will not discover, realize, or protect themselves against.”
Bertrand v. Alan Ford, Inc., 537 N.W.2d 185, 186 (Mich. 1995) (internal quotation
marks and citation omitted). In order to hold a landowner liable, plaintiff must
show defendant had actual or constructive notice of the condition of the land.
Lowrey v. LMPS & LMPJ, Inc., 500 Mich. 1, 8 (2016); see also Berryman v. K
Mart Corp., 193 Mich. App. 88, 92 (Mich. Ct. App. 1992). To have constructive
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notice, the condition must be of a character or have existed for a sufficient length
of time so that the landowner should have had notice of the condition. Lowrey,
500 Mich. at 11; see also Banks v. Exxon Mobil Corp., 477 Mich. 983, 983 (2007).
Defendant contends that there is no evidence that it had notice of grease in
the parking lot. Further, Defendant argues that there was no testimony that grease
was seen prior to Plaintiff entering the restaurant, or any reports of anyone seeing
any grease in the parking lot prior to Plaintiff’s fall. Moreover, Mr. Word testified
that the parking lot is inspected daily and as the employees begin each shift.
To the contrary, and without providing any factual basis, Plaintiff contends
Defendant had constructive notice of the condition of the parking lot. Plaintiff
erroneously relies on Grandberry-Lovette v. Garascia, 303 Mich. App. 566 (Mich.
Ct. App. 2014), arguing that Defendant had a continuing duty to inspect the
parking lot. (ECF No. 51 at Pg ID 1066.) Further relying on Grandberry-Lovette,
Plaintiff contends that “the premises possessor must show that the type of
inspection that a reasonable prudent premises possessor would have undertaken
under the same circumstances would not have revealed the dangerous condition at
issue.” (Id.) Plaintiff argues that “if under the totality of circumstances a
reasonable prudent premises possessor would have employed a more vigorous
inspection regime that would have revealed the dangerous condition, the fact that
the condition was not observable on casual inspection would not preclude a jury
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from finding that the premises possessor should have discovered the hazard . . . .”
(Id.)
However, the Michigan Supreme Court held in Lowrey that GrandberryLovette was wrongfully decided on the exact issues upon which Plaintiff relies.
Lowrey, 500 Mich. at 8. The Michigan Supreme Court stated that defendant is
required to do no more than show plaintiff’s evidence is insufficient—a defendant
has no obligation to prove it does not have notice. Id. at 9. Further, defendant is
not required to “present evidence of a routine or reasonable inspection . . . to prove
a premise’s owner lack of constructive notice of a dangerous condition on the
property.” Id. at 10. All a defendant need do is “demonstrat[e] that plaintiff failed
to present sufficient evidence of notice.” Id. This is what Defendant has done
here.
As relates to actual notice, Plaintiff has presented no evidence that she or
any member of her family saw the grease prior to her fall, including her son, who
testified that he walked ahead of Plaintiff. Further, Mr. Word testified that there
were no other incidents or reports of falls or grease in the parking lot. To the
extent anyone saw grease, it was after Plaintiff’s fall, which would have been
readily apparent because Plaintiff’s fall would have drawn attention to the location
and presence of the grease.

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Likewise, Plaintiff failed to present any evidence that Defendant had
constructive notice of the condition by demonstrating that the hazard had existed
for a sufficient time such that Defendant would have discovered it. There is no
evidence of how long the grease had been in the parking lot, whether it was there
for an unreasonable amount of time, or for mere seconds. Although Plaintiff need
not have personal knowledge of how long the grease was in the parking lot, she
must show “affirmative evidence that points to the condition having existed for
more than mere seconds.” Guthrev v. Lowe’s Home Ctrs., Inc., 204 F. App’x 524,
527 (6th Cir. 2006). Along those same lines, Plaintiff has not produced any
evidence that the grease was of such a character that Defendant should have had
notice.
As to the open and obvious doctrine, Defendant argues that the grease in the
parking lot was open and obvious for four reasons: (1) the grease was visible as
shown in the photograph provided by Plaintiff; (2) Plaintiff testified that she saw
the grease after she fell; (3) Plaintiff’s husband and son saw the grease after the
incident; and (4) Mr. Word testified that he saw the grease when he came outside
prior to anyone pointing it out. (ECF No. 50 at Pg ID 1047.) Further, Defendant
argues that there were no special aspects that would render the condition of the
parking lot unreasonably dangerous despite its open and obvious nature. (Id.)

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The Court declines to discuss the open and obvious doctrine because
Plaintiff has failed to show Defendant had notice of the condition of the parking
lot. See Lowrey, 500 Mich. at 8 (stating that in order to hold a landowner liable,
plaintiff must show defendant had actual or constructive notice of the condition of
the land).
Accordingly, viewing the evidence in the light most favorable to Plaintiff,
Defendant is entitled to judgment as a matter of law as Plaintiff has failed to prove
Defendant had notice of the grease in the parking lot.
IV.

Conclusion
For the reasons above, the Court grants Defendant’s motion.
Accordingly,
IT IS ORDERED that Defendants’ motion (ECF No. 50) is GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s Complaint is DISMISSED.
IT IS SO ORDERED.
s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE

Dated: November 27, 2018
I hereby certify that a copy of the foregoing document was mailed to counsel of
record and/or pro se parties on this date, November 27, 2018, by electronic and/or
U.S. First Class mail.
s/ R. Loury
Case Manager
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