United States District Court, Western District of Michigan, Southern Division
JANET T. NEFF, United States District Judge
This is the second time Plaintiff’s personal injury claims have been before this Court to recover for injuries to her foot from a fire extinguisher that fell after she hit it with her shopping cart in a Meijer store. In the previous case, Johnson v. Meijer, Inc., No. 1:12-cv-78, Magistrate Judge Ellen S. Carmody granted summary judgment in favor of Meijer, Inc., and the Sixth Circuit Court of Appeals affirmed on appeal. Plaintiff subsequently filed this case seeking recovery from Defendants Rockford Construction Company (“Rockford”), the general contractor that renovated the Meijer store in 2008, and Associated Construction (“Associated”), Rockford’s subcontractor that was in charge of installing the fire extinguisher. Pending now before the Court are Rockford’s Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) (Dkt 65) and Associated’s Motion to Dismiss (Dkt 62). Having fully considered the parties’ briefs and the record, the Court concludes that oral argument is unnecessary to resolve the pending motions. See W.D. Mich. LCivR 7.2(d). For the reasons that follow, the Court grants both motions.
The underlying facts were succinctly set forth in the Court of Appeals’ opinion:
In August 2010, Bambe Cae Johnson was pushing a shopping cart through the aisles at a Meijer store in Battle Creek, Michigan. Her granddaughter’s car seat was in the front of the cart, partially obstructing Johnson’s view. At some point, Johnson continued walking while she turned her head to look behind her. The handle of her shopping cart struck a fire extinguisher mounted in plain view on a column. The impact caused the extinguisher to fall, injuring Johnson’s toe.
Johnson v. Meijer, Inc., 551 F. App’x 259, 260 (6th Cir. Jan. 23, 2014).
After Plaintiff’s case against Meijer was dismissed, she filed this second personal injury suit based on the same August 2010 incident, but against Tyco Fire Products LP,  the manufacturer of the fire extinguisher, Rockford, and Associated. Plaintiff’s initial complaint in this action filed on July 26, 2013, alleged virtually the identical allegations as in the dismissed Meijer case. Plaintiff subsequently filed an amended complaint on February 5, 2014, alleging negligent conduct on the part of Defendants Associated and Rockford. Both Defendants now seek dismissal.
II. Legal Standards
Fed. R. Civ. P. 12(b)(6) authorizes the court to dismiss a complaint if it “fail[s] to state a claim upon which relief can be granted[.]” In deciding a motion to dismiss for failure to state a claim, the court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded factual allegations in the complaint as true. Thompson v. Bank of Am., N.A., 773 F.3d 741, 750 (6th Cir. 2014).
To survive a motion to dismiss, the complaint must present “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. “The plausibility standard is not akin to a ‘probability requirement, ’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. at 678 (quoting Twombly, 550 U.S. at 556).
Defendants advance several grounds for dismissal of this case,  including, foremost, that this action is essentially Plaintiff’s premises liability claim realleged as ordinary negligence in an attempt to avoid the preclusive effect of the prior dismissal of her claims asserted against Meijer. This Court agrees.
“‘Michigan law distinguishes between claims arising from ordinary negligence and claims premised on a condition of the land.’” Jahnke v. Allen, ___ N.W.2d ___; No. 317625, 2014 WL 7151741 (Mich. Ct. App. Dec. 16, 2014) (quoting Buhalis v. Trinity Continuing Care Servs., 822 N.W.2d 254, 258 (2012)). “In the latter case, liability arises solely from the defendant’s duty as an owner, possessor, or occupier of land.” Buhalis, 822 N.W.2d at 258; Laier v. Kitchen, 702 N.W.2d 199, 208 (Mich. Ct. App. 2005). “If the plaintiff’s injury arose from an allegedly dangerous condition on the land, the action sounds in premises liability rather than ordinary negligence; this is true even when the plaintiff alleges that the premises possessor created the condition giving rise to the plaintiff’s injury.” Buhalis, 822 N.W.2d at 258.
In her amended complaint, Plaintiff attempts to characterize (or more appropriately, “recharacterize”) this action as one sounding in negligent conduct by parties involved in the renovation of the building and the installation of the fire extinguisher, rather than a condition of the premises. Plaintiff cites as key to her claim of negligent conduct, the allegations in Paragraph 14 of her ...