Erdody v. Nitto, Inc.

Filing 28

OPINION and ORDER Granting Defendant's 15 Motion for Summary Judgment. Signed by District Judge Linda V. Parker. (RLou)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DAVID ERDODY,
Plaintiff,

Case No. 17-cv-11348
Honorable Linda V. Parker

v.
NITTO, INC.,
Defendant.
________________________________/
OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT (ECF NO. 16)
Plaintiff David Erdody (“Plaintiff”) commenced this lawsuit against
Defendant Nitto, Inc. (“Defendant”) in the Circuit Court for the County of Wayne,
Michigan on January 10, 2017. Defendant removed this case to federal court based
on diversity jurisdiction on April 27, 2017. (ECF No.1.) Plaintiff alleges
Defendant failed to maintain its premises in a reasonably safe condition. (Compl.
at ¶ 5, ECF No. 1 at Pg ID 5.) Presently before the Court is Defendant’s motion
for summary judgment, filed August 17, 2017. (ECF No. 16.) Plaintiff did not file
a response to Defendant’s motion, although Plaintiff was aware1 of the pending
motion. For the reasons stated below, the Court grants Defendant’s motion.

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On January 8, 2018, the Court issued a Notice of Determination without Oral
Argument. Immediately thereafter, Plaintiff’s counsel contacted chambers upon
realizing he had not filed a response and was informed that he needed either to file
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I.

Factual and Procedural History
On January 10, 2014, Plaintiff, a driver for USF Holland, Corporation, was

lawfully on Defendant’s property to make a delivery. (Compl. at ¶¶ 3-4, ECF No.
1 at Pg ID 4-5.) Plaintiff testified that he frequently made pick-ups and deliveries
at Defendant’s property, used Defendant’s loading dock and was familiar with the
operation of the dock plate. (David Erdody Dep. 15:18-21, 17:11-16 Mot., Ex. 1,
ECF No. 15 at Pg ID 40.)
Plaintiff testified that on the day of the incident, it was snowing heavily and
there was visible snow and ice on the dock plate. (Erdody Dep. 74:14-21, 75:11,
20-22, Mot., Ex. 1, ECF No. 15 at Pg ID 57-58.) Sometime after completing his
delivery, Plaintiff slipped and fell on Defendant’s dock plate. According to
Plaintiff, Defendant allowed snow and ice to accumulate, creating a hazardous
condition. (Compl. at ¶ 5, ECF No. 1 at Pg ID 5.) Because of the fall, Plaintiff
sustained severe and disabling injuries, including a ruptured hamstring tendon.
(Compl. at ¶ 7, ECF No. 1 at Pg ID 5.)
On January 10, 2017, Plaintiff initiated this action against Defendant in state
court for claims of negligence and nuisance. Plaintiff contends that even assuming
the condition of the land was open and obvious, it was unavoidable in the course of
a motion for leave or obtain consent from opposing counsel to late file a response.
On February 7, 2018, Plaintiff filed a motion for leave to file a response no later
than February 9, 2018, which the Court granted also on February 7, 2018. To date,
there is no record of a response.
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employment. (Compl. at ¶ 6. ECF No. 1 at Pg ID 5.) Defendant properly removed
this case to federal court on April 27, 2017.
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
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

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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.”
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
Although Plaintiff alleges negligence and nuisance, reading Plaintiff’s

Complaint as a whole, Plaintiff is complaining of the conditions of the land, and
therefore, Plaintiff’s Complaint sounds in premises liability. See Lymon v.
Freedland, 887 N.W.2d 456, 462 (Mich. Ct. App. 2016) (“Michigan law
distinguishes between claims arising from ordinary negligence and claims
premised on the condition of the land.”) 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
accident. (See ECF Nos. 1 at Pg ID 4; ECF No. 4 at Pg ID 15.)
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“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). This duty does not extend, however, to dangerous
conditions that are open and obvious unless special aspects of the condition make
even an open and obvious risk unreasonably dangerous. Lugo, 629 N.W.2d at 386.
As summarized by the Michigan Supreme Court:
[i]f the particular activity or condition creates a risk of
harm only because the invitee does not discover the
condition or realize its danger, then the open and obvious
doctrine will cut off liability if the invitee should have
discovered the condition and realized its danger. On the
other hand, if the risk of harm remains unreasonable,
despite its obviousness or despite knowledge of it by the
invitee, then the circumstances may be such that the
invitor is required to undertake reasonable precautions.
Bertrand, 537 N.W.2d at 187.
An open and obvious condition is one “‘that an average person with ordinary
intelligence would have discovered . . . upon casual inspection.’” Wimberly v.
Forman Mills, Inc., 574 F. App’x 621, 622 (6th Cir. 2014) (quoting Hoffner v.
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Lanctoe, 821 N.W.2d 88, 94-95 (Mich. 2012). The Michigan Supreme Court has
advised that when applying this test, “it is important for courts . . . to focus on the
objective nature of the condition of the premises at issue, not on the subjective
degree of care used by the plaintiff.” Lugo, 629 N.W.2d at 390. “The proper
question is not whether this plaintiff could or should have discovered the
[dangerous condition], but whether the [dangerous condition] was observable to
the average, casual observer.” Price v. Kroger Co. of Michigan, 773 N.W.2d 739,
742 (Mich. Ct. App. 2009) (citing Novotny v. Burger King Corp., 499 N.W.2d 379,
381 (Mich. Ct. App. 1993); see also Lugo, 629 N.W.2d at 390 (explaining that the
degree to which the plaintiff was paying proper attention is immaterial to the
question of whether the condition of the premises was open and obvious).
While the danger of a condition may generally be open and obvious, there
may be special aspects of the condition “that make the risk of harm unreasonable,
and, accordingly, a failure to remedy the dangerous condition may be found to
have breached the duty to keep the premises reasonably safe.” Bertrand, 537
N.W.2d at 188. As the Michigan Supreme Court restated:
Consistent with Bertrand, we conclude that, with regard
to open and obvious dangers, the critical question is
whether there is evidence that creates a genuine issue of
material fact regarding whether there are truly “special
aspects” of the open and obvious condition that
differentiate the risk from typical open and obvious risks
so as to create an unreasonable risk of harm, i.e., whether
the “special aspect” of the condition should prevail in
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imposing liability upon the defendant or the openness
and obviousness of the condition should prevail in
barring recovery.
Lugo, 629 N.W.2d at 387. The Michigan Supreme Court has identified two
instances where the special aspects of an open and obvious hazard could give rise
to liability: (1) when the danger is unreasonably dangerous or (2) when the danger
is effectively unavoidable. See Hoffner v. Lanctoe, 821 N.W.2d 88, 96 (Mich.
2012). With regard to ice and snow on the land, the Michigan Supreme Court has
rejected the notion that because ice and snow hazards are open and obvious then
liability cannot occur under any circumstances. Id. at 96-97. A landowner is under
a duty to exercise reasonable care, taking reasonable measures within a reasonable
time, to diminish snow and ice hazards. Id. at 97.
It is undisputed that snow and ice conditions are open and obvious and that
Plaintiff saw the snow and ice accumulation prior to his fall. The Court now turns
to the question of whether the ice and snow condition created a special aspect that
was effectively unavoidable or unreasonably dangerous. In his Complaint,
Plaintiff contends that the danger was unavoidable because of the course of his
employment. However, the Michigan Supreme Court has rejected this argument.
In Hoffner, the plaintiff fell on an icy sidewalk after attempting to enter
Fitness Xpress. Notwithstanding the fact that the plaintiff saw ice on the sidewalk,
she argued the ice was unavoidable because she had a contractual right to enter the
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property. Hoffner, 821 N.W.2d at 99. The court held that “[t]he law of premises
liability in Michigan provides that the duty owed to an invitee applies to any
business invitee, regardless of whether a preexisting contractual or other
relationship exits, and thus the open and obvious rule similarly apply with equal
force to the invitees.” Id. at 99.
Likewise, the Michigan Court of Appeals rejected the same argument in
Lymon. In Lymon, the plaintiff, a nursing aide, fell due to ice and snow
accumulation on a sloped driveway where she worked. Another nursing aide
testified that she saw the condition of the driveway and chose to walk an alternate
route. There was also testimony that the landowner asked the nursing aides,
including plaintiff, to walk a different path to enter the home to avoid the slippery
driveway. Yet, plaintiff argued that she was compelled to walk an unsafe path
because of her employment. See Lymon, 887 N.W.2d at 461. In short, one’s
employment cannot be the basis for confronting an open and obvious condition on
the land. See Hoffner, 821 N.W.2d at 101.
Next, Defendant contends that Plaintiff’s fall was caused when Plaintiff
stepped on the dock plate while it was in the incline position. According to
Defendant, had Plaintiff waited for the dock plate to return to its neutral position,
Plaintiff would not have fallen. Ezieas Keith Brown, Defendant’s dockworker,

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who stated he witnessed the fall, declared2 that “[i]nstead of waiting a few seconds
for the air bags to deflate so that the dock plate could return its horizontal position,
Mr. Erdody stepped up onto the raised dock plate while it was on a steep incline
and he fell.” (Ezieas Keith Brown Aff., ¶ 8, ECF No. 16 at Pg ID 64.) Mr.
Brown’s affidavit is unrebutted.
Defendant submitted two videos in support of its motion for summary
judgment: a video demonstrating the operation of the dock plate (“first video”) and
another video purportedly displaying Plaintiff’s fall on January 10, 2014 (“second
video”). (ECF No. 16, Exh. A; ECF No. 18.) Although the first video helped the
Court understand the operation of the dock plate, the second video was less
helpful. The second video is of poor quality. The dock plate, including any incline
and the snow and ice accumulation is not visible in the frame, as well as Plaintiff’s
actual fall. Further, Defendant attached excerpts of Plaintiff’s deposition, which
do not mention that Plaintiff stepped on an incline prior to his fall.
However, the Michigan Supreme Court has made clear that there is an
“extraordinarily high bar for a condition to constitute an unreasonable risk of harm
because the condition must present a ‘substantial risk of death or severe injury.’
Based on this heightened standard, courts have repeatedly held that ice and snow
generally do not meet this threshold.” Lymon, 887 N.W.2d at 463; see also Corey
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The date of the fall was January 10, 2014. However, Mr. Brown refers to the date
of the fall as January 10, 2015.
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v. Davenport College of Business, 251 Mich. App. 1, 6-7 (2002) (rejecting a high
likelihood of harm or severity of harm in ice-covered steps); Royce v. Chatwell
Club Apartments, 267 Mich. App. 389, 395-96 (“[t]he risk of slipping and falling
on ice is not sufficiently similar to those special aspects discussed in Lugo to
constitute a uniquely high likelihood or severity of harm and remove the condition
from the open and obvious danger doctrine.”). The court in Lugo described an
unreasonably dangerous condition as follows:
[C]onsider an unguarded thirty-foot deep pit in the middle of a
parking lot. The condition might well be open and obvious, and one
would likely be capable of avoiding the danger. Nevertheless, this
situation would present such a substantial risk of death or severe
injury to one who fell in the pit that it would be unreasonably
dangerous to maintain the condition, at least absent reasonable
warnings or other remedial measures being taken.
Lugo, 629 N.W.2d at 387.
Unlike the special aspects presented in Lugo, Plaintiff has not presented any
evidence that he faced a substantial risk of death or severe injury due to the snow
and ice accumulation. Plaintiff was not forced to confront the risk,
notwithstanding his allegation that the risk was unavoidable due to his course of
employment. There has been no evidence presented to rebut Mr. Brown’s
testimony and no evidence that the risk of harm associated with the ice and snow
on the docking plate was unreasonably high. Because there is no dispute that the
ice was open and obvious, and because Plaintiff has not alleged the ice and snow
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had a special aspect, the Court cannot speculate as to the condition of the land, and
therefore, Plaintiff is precluded from recovery.
IV.

Conclusion
Accordingly, for the reasons stated above, Defendant’s motion is granted.
IT IS ORDERED that Defendant’s motion for summary judgment (ECF

No. 15) is GRANTED.
IT IS SO ORDERED.

s/ Linda V. Parker
LINDA V. PARKER
U.S. DISTRICT JUDGE
Dated: February 28, 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, February 28, 2018, by electronic and/or
U.S. First Class mail.
s/ R. Loury
Case Manager

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