Fredenburg v. J.C. Penney Corporation, Inc.

Filing 78

MEMORANDUM REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
__________________________

TAMMY FREDENBURG,
Plaintiff,
v.

Case No. 1:16-CV-251

J.C. PENNEY CORPORATION, INC.,

HON. GORDON J. QUIST

Defendant.
_________________________________/
MEMORANDUM REGARDING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
Plaintiff, Tammy Fredenburg, sued Defendant, J.C. Penney Corporation, Inc., alleging a
claim for premises liability/negligence. Penney moved for summary judgment, and the Court heard
oral argument on July 6, 2017. For the reasons that follow, the Court will grant Penney’s motion.
The pertinent facts regarding Fredenburg’s fall are not in dispute. On July 16, 2015, while
looking at curtains with a friend at a Penney store, Fredenburg stepped back without looking and
tripped on the base of an endcap behind her. The base is rectangular in shape and abuts the upright
back panel of the fixture. The base is 36 inches wide, 18 inches deep, four and one-half inches tall,
and is covered in a wood-toned-and-grained laminate material. (ECF No. 67-3; 72-2.) The
base/endcap is depicted in photographs Penney submitted in support of its motion. (ECF No. 67-3.)
Penney had not received a complaint of a customer tripping on the base/endcap before Fredenburg’s
accident.
Penney has no duty to protect Fredenburg from dangers that are open and obvious. Bertrand
v. Alan Ford, Inc., 449 Mich. 606, 609, 537 N.W.2d 185, 186 (1995) (citations omitted). A
condition is considered open and obvious if “it is reasonable to expect that an average person with

ordinary intelligence would have discovered it upon casual inspection.” Hoffner v. Lanctoe, 492
Mich. 450, 461, 821 N.W.2d 88, 94–95 (2012) (footnote omitted). The base/endcap was open and
obvious because a reasonable person with ordinary intelligence would have seen it. Although the
base/endcap was a similar color to that of the floor, the difference in color and its height from the
floor sufficiently set it off such that a reasonable person would have seen it. No reasonable juror
would conclude that the base was not open and obvious.
The base/endcap did not have any special aspects that rendered it unreasonably dangerous.
Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 517, 629 N.W.2d 384, 386–87 (2001). The fact that
Fredenburg was distracted by Penney’s merchandise is insufficient to create an issue for the jury.
“The issue is not merely whether there was an issue of material fact as to whether plaintiff was
distracted from an open and obvious condition.” Freeman v. Kmart Corp., No. 331224, 2017 WL
2463407, at *5 (June 6, 2017) (per curiam) (citing Kennedy v. Great Atl. & Pac. Tea Co., 274 Mich.
App. 710, 717, 737 N.W.2d 179, 184 (2007)). Rather, the question is whether there was anything
unusual about the distraction that would preclude application of the open and obvious condition.
Id. (citing Kennedy, 274 Mich. App. at 716–18, 737 N.W.2d at 184–85). Fredenburg has not shown
that there was anything unusual about the distraction in this case that would preclude application of
the open and obvious doctrine.
A separate Order will enter.

Dated: July 7, 2017

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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