United States District Court, E.D. Michigan, Southern Division
Shirley A. Duboise, Plaintiff,
Wal-Mart Stores, Inc., Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
DENISE PAGE HOOD JUDGE
case involves Defendant's denial of Plaintiff's claim
for damages following a slip and fall accident that occurred
at Defendant's Dearborn store on February 11, 2014.
Plaintiff filed her action in, and Defendant removed the case
from, Wayne County Circuit Court in early 2015. On June 6,
2016 Defendant filed a Motion for Summary Judgment. [#18]
Plaintiff filed a response, and Defendant filed a timely
reply. A hearing was held on August 31, 2016.
lives in Florida but traveled to Michigan on Thursday,
February 9, 2012, to attend a funeral. On February 11, 2012,
Plaintiff drove to the Wal-Mart store located in Dearborn,
Michigan, and parked near the store, not in a parking space.
Plaintiff was wearing a black coat and black suit, and claims
to have been wearing black boots with a heel. Plaintiff
testified that it was snowing as she made her way into the
store. She also testified it had snowed all day on Friday,
February 10, 2016.
entered through the front entrance of the store, and she
testified that wet floor signs were out as she entered the
store. Plaintiff went straight towards an aisle that had
Valentine's Day items, and she testified that no wet
floor signs were visible in that aisle. Plaintiff testified
that she did not look at the floor while she was walking but
was instead looking ahead, down the aisle. Dkt. No. 18, Ex. B
at 60. As she approached the end cap of the aisle, she
slipped and fell, injuring her right leg, shoulder, hip, and
back. Plaintiff states that two of the four Defendant
employees who were nearby helped her up, and one of them
commented that Plaintiff had fallen because of the water on
the floor. Id. at 61. Plaintiff testified that after
her fall, she could see that the floor was “full of
water” and that “there was a lot of water on the
floor there.” Id. at 59, 69. She also
testified that there “wasn't any water anywhere but
in that area” and “. . . I fell into the
water.” Id. at 60.
the alleged incident, Plaintiff continued shopping, and then
spoke with a Wal-Mart manager at the customer service desk.
She brought the manager to the area of the alleged incident
and explained what occurred. She claims four employees were
there as well. Plaintiff obtained an incident report
immediately following the incident, but did not fill it out
at that time because she wanted to get to the funeral.
Plaintiff left and drove herself and her family members to
the funeral in Ferndale, Michigan.
the funeral, Plaintiff drove her family members to get
something to eat before driving herself back to the Wal-Mart
store in Dearborn to fill out the incident report. After
completing the incident report, Plaintiff left the store. She
flew back to Florida on Sunday, February 12, 2016.
APPLICABLE LAWS & ANALYSIS
Standard of Review
56(a) of the Rules of Civil Procedures provides that the
court “shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The presence of factual disputes will
preclude granting of summary judgment only if the disputes
are genuine and concern material facts. Anderson v.
Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). A dispute
about a material fact is “genuine” only if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
Although the Court must view the motion in light most
favorable to the nonmoving party, where “the moving
party has carried its burden under Rule 56(c), its opponent
must do more than simply show that there is metaphysical
doubt as to the material facts.” Matsushita
Electric Industrial Co. v. Zenth Radio Corp., 475 U.S.
574, 586 (1986); Celotex Corp. v. Caterett, 477 U.S.
317, 323-24 (1986). Summary Judgement must be entered against
a party who fails to make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial. In such a situation, there can be “no genuine
issue as to any material face, ” since a complete
failure of proof concerning an essential element of the
nonmoving party's case necessarily renders all other
facts immaterial. Celotex Corp., 477 U.S. at 322-23.
A court must look at the substantive law to identify which
facts are material. Anderson, 477 U.S. at 248.
premises liability action, Plaintiff has alleged that
Defendant negligently failed to design, construct and
maintain its store free of a slippery substance on the floor
or warn the public of its presence, which Defendant knew
about. In Scott v. Kroger, No. 290696, 2010 WL
3184488 (Mich. Ct. App. Aug. 12, 2010), the court granted
defendant's motion for summary disposition in a
negligence and premises liability action arising out of the
plaintiff slipping and falling on a puddle of water at
defendant's store. In that action, the plaintiff
“claim[ed] the water was nearly invisible and there was
no sign or other indication that the floor was wet.”
Id. at *1. In addressing that plaintiff's claim,
the court of appeals stated:
Under open and obvious doctrine, when a plaintiff is a
business invitee, the premises owner has a duty to use
reasonable care to protect the plaintiff from dangerous
conditions. Bertrand v. Alan Ford, Inc., 449 Mich.
606, 612-613, 537 N.W.2d 185 (1995). “However, where
the dangers are known to the invitee or are so obvious that
the invitee might reasonably be expected to discover them, an
invitor owes no duty to protect or warn the invitee unless he
should anticipate the harm despite knowledge of it on behalf
of the invitee.” Id. To determine whether a
danger is open and obvious, the courts consider
“whether an average user with ordinary intelligence
would have been able to discover the danger and the risk
presented upon casual inspection.” Joyce v.
Rubin, 249 Mich.App. 231, 238, 642 N.W.2d 360 (2002).