The opinion of the court was delivered by: Virginia M. Morgan United States Magistrate Judge
VIRGINIA M. MORGAN UNITED STATES MAGISTRATE JUDGE
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Doc. No. 36)
In this personal injury lawsuit, plaintiff Layla M. Robinson ("plaintiff"), the mother of Tanya Robinson ("Tanya"), a minor, alleges that Defendant Lowe's Home Centers, Inc.'s ("Lowe's") negligent maintenance of its parking lot and its defective shopping cart caused Tanya severe injury when the shopping cart Tanya was sitting in rolled across the parking lot, hit a pothole, and tipped over, landing on top of then two-year old Tanya. Presently before the court is Lowe's motion for summary judgment. The motion was fully briefed, and the court heard oral argument on March 17, 2010. For the reasons stated below, the court GRANTS Lowe's motion for summary judgment.
On June 30, 2007, Luther Robinson, Tanya's father, took her to Lowe's in Southfield, Michigan. (Compl. ¶ 5). Mr. Robinson carried Tanya, who was two years old at the time, in to the store where a Lowe's employee handed him a shopping cart. (Doc. No. 36, Def.'s MSJ Ex. B, Luther Robinson Dep. 14, 22). Mr. Robinson placed Tanya in the child seat of the cart. (Id. at 25). After shopping for approximately forty-five minutes, he checked out and wheeled his purchases and Tanya to the car in the shopping cart. (Id. at 25-26). One of Lowe's employees helped load some of Mr. Robinson's purchases into his Dodge Durango, and then the employee returned to the store. (Id. at 19, 27). As Mr. Robinson turned to put his remaining purchases in the Durango, the cart rolled away, for a few seconds, and hit a pothole. (Id. at 27-28). Tanya was still in the cart as it started to roll. (Id. at 27-28). One of the cart's wheels came off and the cart flipped over on to Tanya, "pinn[ing] her arm up under the cart." (Id. at 28, 32, 37-38, 46). Mr. Robinson went over to her and picked her up. (Id. at 47). They got into the car and Luther drove Tanya to Children's Hospital, where Tanya was diagnosed with a broken arm. (Id. at 46-50). Tanya wore a splint for a week and then was in a cast for two and a half weeks. (Id. at 50).
The following day, July 1, 2007, Mr. and Mrs. Robinson went to Lowe's to report the incident to the store manager. (Doc. No. 36, Def.'s MSJ Ex. H., Incident Report). The incident report, written by store manager Michael Strahan, states:
Customer was in the store on 6-30-07 at 457 pm [sic] after leaving the store with a cart the customer hit a crack in the parking lot and the cart fell over. The customers [sic] daughter was in the cart. The cart rolled into a hole with a crack causing the cart to fall over. The customers [sic] daughter broke her arm in two places. The customer then took his daughter to the Children [sic] Hospital of Michigan Emergency Department. The customer and his wife returned to the store on 6-30-07 around 11pm and talked to James. James told them to come back to the store on 7-1-07 and talk to Rob. The customer and his wife talked to the tore manager (Michael). The customer and the store took pictures of the crack. The property management information was given to the customer. The store manager made the decision to block off the area.
Lowe's also submitted an unsigned affidavit from Strahan that states Mr. and Mrs. Robinson both told him that the crack or hole in the parking lot caused the shopping cart to tip over and neither of them told him that the shopping cart was defective or that the wheel fell off. (Doc. No. 36, Def.'s MSJ Ex. F, Strahan Aff. ¶¶ 5-7). The unsigned affidavit also states that the "shopping cart was put back into service as it was not defective." (Id. at 8). In Lowe's reply brief, Lowe's explains that Strahan's affidavit, which he allegedly helped prepare, is unsigned because "[a]fter the motion was filed, Mr. Strahan took a medical leave of absence and is physically and mentally unable to sign the Affidavit at this time."*fn1 (Doc. No. 40, Def.'s Reply Br. 2 n 1).
Lowe's did submit a signed affidavit, with its reply brief, from James Ison, the Department Manager, who attests that he spoke to Luther immediately after the incident. (Doc. No. 40, Def.'s Reply, Br. Ex. 1, Ison Aff. ¶ 4). Ison further averred that he inspected the shopping cart, it was not defective, and it was returned to service. (Id. at ¶¶ 8-9). Ison also stated that Lowe's does not own the parking lot and is not responsible for the maintenance and repair of the parking lot. (Id. at ¶¶ 11-12).
Lowe's leases its store and parking lot from Ramco-Gershenson. (Doc. No. 36, Def.'s MSJ 9). Under the lease, Ramco-Gershenson is responsible for keeping the parking area "suitably paved" and in "good repair, maintenance and condition." (Id. at Ex. D, Ground Lease ¶ (I)).
Plaintiff filed the instant suit in Wayne County Circuit Court on January 26, 2009. The complaint alleges a single count of negligence. (Compl.) Lowe's timely removed Plaintiff's complaint to this court on February 23, 2009, on the basis of diversity jurisdiction. (Doc. No. 1).
Pursuant to 28 U.S.C. §36(c) and Fed. R. Civ. P. 73, the parties consented to this court's jurisdiction, and the Honorable Virginia M. Morgan, United States Magistrate Judge, will conduct any further proceedings in the case, including trial, order the entry of a ...