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Kerban v. Kohl's Department Stores, Inc.

United States District Court, W.D. Michigan, Northern Division

March 14, 2017

MICHELLE KERBAN, Plaintiff,
v.
KOHL'S DEPARTMENT STORES, INC., and D.H. PACE COMPANY, INC., Defendants.

          MEMORANDUM

          GORDON J. QUIST UNITED STATES DISTRICT JUDGE

         On December 22, 2016, Plaintiff, Michelle Kerban, fell in the entrance to a Kohl's department store. Plaintiff alleges that the fall was caused by a defective automatic door. Plaintiff has sued Kohl's under a premises liability theory, and has also sued D.H. Pace, a company hired by Kohl's to inspect and repair its automatic doors, under a negligence theory. Kohl's and Pace filed motions for summary judgment. The matter is fully briefed and ready for a decision.

         I. FACTS

         Kohl's Department Stores, Inc. operates a chain of department stores. D.H. Pace is a business that services automatic doors at Kohl's. Pace's agreement with Kohl's calls for Pace's subcontractor, Entrance Technologies, LLC, to inspect Kohl's doors once per year, perform repairs during the inspection if needed, and respond to any service calls Kohl's may have. (See ECF No. 18-6.) Before Plaintiff's fall, Pace's subcontractor had last inspected Kohl's doors on March 17, 2015, and found the door to be functioning properly and meeting safety standards. (ECF No. 18-7.)

         The door at issue is a low-energy power door which opens automatically if it is either pushed or pulled, or when a pedestrian pushes the handicap-accessible button. The door closes using the force of spring tension rather than a motor. Once opened, the door will close and continue to close unless acted upon by a force of approximately 10 pounds or greater. Plaintiff noted that the door lacked the required signage for automatic doors under ANSI/BHMA A156.19-2013. (ECF No. 27 at PageID.360-61.)

         On December 22, 2016, Plaintiff, who suffers from Lupus and has a balance problem, and her friend, Billie Bloomfield, went shopping at Kohl's department store. The particular store had two sets of doors at the entrance: an outer set and an inner set which, together, enclose a vestibule. As Plaintiff and Bloomfield approached the store entrance, Bloomfield opened the outer door, and Plaintiff walked into the vestibule on her way into the store. At approximately the same time, a customer walked out of the inner door on his way out of the store. The inner door stayed open briefly. Plaintiff attempted to walk through the inner door and into the store, but the inner door closed and struck her from behind. Plaintiff fell forward, injuring her head and causing a concussion.

         II. DISCUSSION

         A. Kohl's

         Count I of the underlying complaint alleges that Kohl's breached a duty owed under the law of premises liability. Landowners do not have to protect invitees from open and obvious dangers, because “such dangers, by their nature, apprise an invitee of the potential hazard, which the invitee may then take reasonable measures to avoid.” Hoffner v. Lanctoe, 492 Mich. 450, 460-461, 821 N.W.2d 88, 95 (2012). “Michigan caselaw does not support providing special protection to those invitees who have paid memberships or another existing relationship to the businesses or institutions that they frequent above and beyond that owed to any other type of invitee.” Id. at 470-71, 821 N.W.2d at 100.

         “Whether a danger is open and obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection.” Hoffner, 492 Mich. at 461, 821 N.W.2d at 94-95. “This is an objective standard, calling for an examination of the ‘objective nature of the condition of the premises at issue.'” Id. at 561, 821 N.W.2d at 95 (quoting Lugo 464 Mich. at 523-24, 629 N.W.2d at 390). An “open and obvious hazard [can] give rise to liability… when the danger is effectively unavoidable.” Id. at 463, 821 N.W.2d at 96. “[T]he standard for ‘effective unavoidability' is that a person, for all practical purposes, must be required or compelled to confront a dangerous hazard.” Id. at 468-469, 821 N.W.2d at 99.

         1. Open and Obvious

         Kohl's argues that the hazard was open and obvious because this type of door is widely-used, Plaintiff herself had used these doors on a number of occasions, and “all hinged doors close and open.” (ECF No. 40 at PageID.638.) The “test for an open and obvious danger focuses on the inquiry: Would an average person of ordinary intelligence discover the danger and the risk it presented on casual inspection?” Price v. Kroger Corp. of Mich., 284 Mich.App. 496, 501, 773 N.W.2d 739, 742 (2009). After a “casual inspection, ” an overage person of ordinary intelligence would see that this particular door begins to close after being opened. The door was an open and obvious condition. See, e.g., Wilcox v. Bernelis, No. 330011, 2017 WL 187977, at *1 (Mich. Ct. App. Jan. 17, 2017) (holding that the hazard caused by a pneumatic door closer was open and obvious because nothing would prevent an average person from seeing the closer, and that “person could determine that when force is removed (as in a person letting go), the closer would operate to close the door, possibly very quickly.”)

         2. Special Aspects

         Plaintiff further argues that “[o]nce [she] crossed the threshold of the seemingly-safe path of the door, avoiding the hazard was effectively unavoidable.” (ECF No. 34 at PageID.535.) Hoffner teaches otherwise. There, the court held that ice in front of the entrance to a fitness center was not effectively unavoidable because the plaintiff-customer chose to enter the defendant's business in the first place. Hoffner, 492 Mich. at 469. 821 N.W.2d at 99 (“situations in which a person has a choice whether to confront a hazard cannot truly be unavoidable, or even effectively so”). Similarly, Plaintiff chose to go to Kohl's and chose to enter ...


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