United States District Court, E.D. Michigan, Southern Division
OPINION & ORDER GRANTING DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S REQUEST FOR
F. Cox United States District Judge
action arises out of a fire that occurred in Plaintiff Anissa
Stewart's (“Plaintiff”) apartment. Plaintiff
alleges the following counts against Defendants: negligence,
negligence per se, res ipsa loquitur, gross
negligence, breach of lease agreement and intentional
infliction of emotional distress. Plaintiff seeks to hold
Defendants liable for damages incurred to her personal
property as a result of the fire. Plaintiff also seeks
damages for emotional distress.
before the Court is Defendants' Motion for Summary
Judgment. Plaintiff has filed a response opposing
Defendants' motion. Plaintiff's response also seeks
spoilation sanctions. The Court heard oral argument as to
Defendants' motion on February 9, 2017. For the reasons
that follow, the Court shall GRANT Defendants' Motion for
Summary Judgment and DENY Plaintiff's request for
facts of this case are relatively straight forward.
Consistent with this Court's Practice Guidelines,
Defendants have filed a statement of material facts not in
dispute (Doc. #24, Def.s' Stmt.) and Plaintiff has filed
a counter-statement of disputed facts (Doc. #29, Pl.'s
Stmt.). Below is an overview of the facts, taken in a light
most favorable to Plaintiff, the non-moving party.
brings this action against Defendants Michigan Pontiac, LLC
and Aspen Square Management, LLC (collectively,
“Defendants”). Defendant Michigan Pontiac is the
owner of an apartment complex facility located in Pontiac,
Michigan. (Def.'s Stmt. at ¶ 1; Pl.'s Stmt. at
¶ 1). Defendant Aspen Square Management is an affiliated
entity which manages the apartment complex pursuant to a
Seville Pointe Apartments LP Lease Agreement. (Def.'s
Stmt. at ¶ 2; Pl.'s Stmt. at ¶ 2).
has resided at the facility for the last several years and
last entered into a Lease with Defendants' predecessor,
Seville Pointe Limited Partnership. (Def.'s Stmt. at
¶ 3; Pl.'s Stmt. at ¶ 3). The Lease Agreement
covered the period of June 6, 2012 through June 30, 2013.
(Id.). The lease was assigned to Defendant Michigan
Pontiac as part of its purchase of the facility on March 22,
2013. (Def.'s Stmt. at ¶ 4; Pl.'s Stmt. at
October 27, 2013, a fire occurred in the bathroom of
Plaintiff's apartment. (Def.'s Stmt. at ¶ 6;
Pl.'s Stmt. at ¶ 6). Plaintiff was not home when the
fire started. (Ex. B to Pl.'s Stmt. at 27). When
Plaintiff got home, she entered her apartment and noticed
heavy, dark smoke. (Id. at 25). Her smoke detectors
were not sounding. (Id. at 28).
Waterford Regional Fire Department was called to the scene.
(Ex. D to Pl.'s Stmt., Fire Dep't Incident Report).
The Fire Department noted that the fire originated in
Plaintiff's bathroom. (Id.). An origin and cause
investigation was subsequently requested. The investigation
was conducted by Carl J. Wallace of the Waterford Regional
Fire Department. (Id.). Wallace composed an Origin
and Cause Investigation Report detailing his findings. (Ex. A
to Pl.'s Stmt., Origin & Cause Investigation Report).
The Origin & Cause Report concluded that:
The area of origin is at or above ceiling level in the
bathroom approximately in the center, the area of the ceiling
vent fan. At this time it is this investigator's opinion
that the fire is undetermined in nature and wiring and/or the
ceiling vent fan cannot be ruled out as the cause of the
fire. Should any new evidence become available regarding this
investigation I reserve the right to evaluate that evidence
and change this opinion accordingly.
(Id. at 3) (emphasis in original).
Complaints Regarding Bathroom Ceiling Fan
parties dispute whether or not Plaintiff had previously
reported any issues with respect to her bathroom ceiling fan.
Defendants' position is that Plaintiff had never
previously launched any complaints. As evidence of this,
Defendants point to Aspen Square Management's service
requests report. (Ex. E. To Def.'s Br.). The report
indicates that Plaintiff made six total service requests
between June 2013 and November 2013, none of which pertained
to the bathroom ceiling fan.
offers her own testimony in support of the fact that she had
launched several complaints regarding the bathroom ceiling
fan. Plaintiff testified that she had not experienced issues
with maintenance until she got the “bathroom
blower.” (Ex. B. to Pl.'s Stmt. at 19). Plaintiff
used the fan in her bathroom frequently and noticed that it
started getting “extremely loud.” (Id.).
Plaintiff also noticed that when she would turn on the switch
for the fan, the fan would not always turn on. (Id.
at 20). Plaintiff recalls leaving a message regarding the fan
“going out” around the same time that she had
also filed a report requesting bed bug extermination.
(Id.). According to Plaintiff, no one came to repair
the fan, but someone came regarding extermination.
(Id.). Sometime thereafter, Plaintiff noticed that
the fan was hanging down from the ceiling. (Id.)
Plaintiff called regarding the fan and Plaintiff believes the
fan was subsequently re-affixed to the ceiling by someone
from maintenance. (Id.).
days prior to the fire, Plaintiff testified that she went to
the management office to complain that the fan had been
making loud noises. (Id. at 21-22). Plaintiff was
told that someone would be sent over to Plaintiff's
apartment. (Id. at 21). According to Plaintiff, no
one was sent. Plaintiff also recalled experiencing issues
with the fan (i.e., loud noises and turning off) on
the morning of the fire. (Id.).
That Transpired After The Fire
one month after the fire, Plaintiff retained counsel in this
matter. Thereafter, Defendants notified Plaintiff's
counsel that it was necessary for Plaintiff to remove her
personal property and vacate the unit in order to allow
Defendants to make necessary reparations to the apartment and
get it re-leased. (Def.s' Stmt. at ¶ 10; Pl.'s
Stmt. at ¶ 10). Communications between Defendant Aspen
Square Management and Plaintiff's counsel were ongoing
thereafter. These communications primarily concerned
Plaintiff's access to the premises after the fire, the
restoration of Plaintiff's personal property and the
replacement cost of Plaintiff's damaged property.
December 13, 2013, Plaintiff's counsel sent Defendants an
email reflecting a telephone conversation between the parties
that took place on that date. (Doc. # 34). In the email,
Plaintiff's counsel noted that Plaintiff had returned to
the damaged unit on December 10, 2013 to collect salvageable
personal property. The email also stated that several of
Plaintiff's personal items had been removed by Defendants
at some point after locks on the unit were changed. The email
concluded that Plaintiff finished removing her salvageable
property, and that the “remaining items are available
for [Defendants] to inspect, and the unit can now be
restored.” On January 21, 2014, Defendants notified
Plaintiff's counsel that it had comprised a list of
Plaintiff's personal property that it felt could be
cleaned and/or restored to original condition. (Ex. G to
Pl.'s Stmt.). Defendants asked Plaintiff's counsel to
advise by January 22, 2014 which items Plaintiff would like
to have cleaned.
February 10, 2014, Defendants notified Plaintiff's
counsel that all efforts to locate a cleaning company had
ceased because they had not received a response from
Plaintiff regarding her intention to attend to her abandoned
property. (Ex. G to Pl.'s Stmt.). To the extent that
Plaintiff intended to retrieve any of the property, which was
“abandoned when vacating the unit, ” Plaintiff
had until February 14, 2014 at 5 p.m.
February 17, 2014, Plaintiff's counsel sent an email to
defendants stating that she had briefly reviewed
Defendants' email and would provide a detailed response
at a later time. (Ex. I to Pl.'s Stmt.). Counsel also
stated that: “the most important issue to address is
your statement that the condition of the unit is no longer
the same as it was after October 27, 2013 fire. Please
refrain from any further spoilation of evidence and provide
an explanation as to what has been changed in the damaged
February 24, 2014, Plaintiff's counsel sent an email
detailing certain discussions that had taken place between
Defendants and counsel. (Ex. H to Pl.'s Stmt.). The email
stated that the parties had agreed that Plaintiff would have
until February 19, 2014 to remove her personal property from
the damaged unit. Plaintiff went to the damaged unit to
remove her items on February 17, 2014, but was denied access
because the items were already being removed into portable
storage containers. The email also indicates that Defendants
had a telephone conversation with another attorney
(“Joe”) from counsel's firm. During that
conversation, Joe permitted Defendants to finish moving the
remainder of the items into containers. The email stated that
during the conversation between Defendants and Joe, “it
became clear that there was no dispute as to the cause of the
fire in the unit, and that [Defendants are] responsible for
[Plaintiff's] damaged personal property, as a result, the
only issue remaining is the extent of damage.”
Plaintiff's counsel concluded that Plaintiff no longer
wished to have her property cleaned and requested the actual
cash value of Plaintiff's personal property ($64,
February 27, 2014, Plaintiff's counsel sent an email to
Defendants summarizing a telephone conversation between the
parties that occurred on that date. (Ex. H to Pl.'s
Stmt.). The email discussed, among other things,
Defendants' concern that the contents list provided by
Michigan Fire Claims was not consistent with Defendants'
contents list. The email also summarized the parties'
positions as to the accurate replacement cost for damaged
26, 2014, Defendants notified Plaintiff's counsel that
Plaintiff was to remove her personal property, which had been
stored in a portable storage container on Defendants'
premises, on or before July 25, 2014. (Def.s' Stmt. at
¶ 11; Pl.'s Stmt. at ¶ 11).
22, 2014, Plaintiff's counsel sent a letter to Defendants
acknowledging that Plaintiff would be attending to her
property by July 25, 2014. (Def.s' Stmt. at ¶ 12;
Pl.'s Stmt. at ¶ 12). Despite this, Plaintiff did
not attend to her property by the specified date. (Def.s'
Stmt. At ¶ 13; Pl.'s Stmt. at ¶ 13).
filed this action on February 8, 2016. Plaintiff's
Amended Complaint, filed on March 14, 2016, is the operative
complaint in this case. (Doc. # 10, Pl.'s Compl.).
Plaintiff's complaint names Michigan Pontiac, LLC (a.k.a.
The Crossing at Auburn Hills) and Aspen Square Management,
Inc. as defendants in this case. Plaintiff asserts the
following six claims against Defendants: Count I - Negligence
Per Se; Count II - Gross Negligence; Count III - Negligence;
Count IV - Res Ipsa Loquitur; Count V - Breach of Lease
Agreement; and Count VI - Intentional Infliction of Emotional
Distress. Plaintiff seeks monetary relief for the personal
property damaged as a result of the fire and for emotional
November 17, 2016, Defendants filed the instant motion for
summary judgment. (Doc. # 23, Def.s' Br.). Defendants
seek dismissal of each of Plaintiff's claims on a number
of grounds. Plaintiff opposes the motion. (Doc. # 28,
Pl.'s Resp.). Defendants have filed a reply. (Doc. # 32,
Federal Rule of Civil Procedure 56(c), summary judgment is
proper “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1984), quoting Fed.R.Civ.P.
party that moves for summary judgment has the burden of
showing that there are no genuine issues of material fact in
the case. LaPointe v. United Autoworkers Local 600,
8 F.3d 376, 378 (6th Cir. 1993). The moving party may meet
its burden by showing that the nonmoving party lacks evidence
to support an essential element of its case. Barnhart v.
Pickrel, Schaeffer & Ebeling Co., 12 F.3d 1382, 1389
(6th Cir. 1993). In response, the nonmoving party must come
forth with more than a “mere scintilla of
evidence” in support of his or her position in order to
survive summary judgment. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251 (1986). “In fact,
‘[t]he failure to present any evidence to counter a
well-supported motion for summary judgment alone is grounds
for granting the motion.'” Alexander v.
CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (quoting
Everson v. Leis, 556 F.3d 484, 496 (6th Cir. 2009)).
court must view the evidence, all facts, and any inferences
that may permissibly be drawn from the facts in the light
most favorable to the nonmoving party. Matsushita Elec.