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Kindermann v. LFT Club Operations Company, Inc.

United States District Court, E.D. Michigan, Southern Division

July 5, 2017

JADE KINDERMANN, Next Friend of L.K., a Minor, Plaintiff,
v.
LFT CLUB OPERATIONS COMPANY, INC., Defendant.

          OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          DAVID M. LAWSON UNITED STATES DISTRICT JUDGE

         Jade Kindermann was carrying her 22-month old son when she tripped over uneven pavement in the parking lot of the Lifetime Fitness Center in Rochester, Michigan. Jade's fall left her unscathed, but her son suffered serious injuries when she landed on him. Jade sued the owner of the facility on her son's behalf, alleging negligence and premises liability under state law. The facility owner, LFT Club Operations Company, Inc., removed the case to this Court and, after discovery concluded, filed a motion for summary judgment on three grounds. Only one of the grounds has merit: that the parking lot defect was open and obvious, and therefore the defendant had no duty to warn its customer of the dangerous condition. Because one meritorious ground is all it takes, the Court will grant the motion for summary judgment and dismiss the complaint.

         I.

         Defendant LFT Club Operations Company, Inc. is a Minnesota corporation that operates a chain of fitness centers in several states. Its customers subscribe to memberships, which allows them access to the facilities. Jade Kindermann joined the Rochester, Michigan facility and signed a membership agreement, which included a waiver of liability.

         On February 28, 2014, Jade arrived at the center with her 21-month old son, L.K. She parked in the lot and headed toward the front entrance of the club. The parking lot includes a concrete motorcycle parking pad. Photographs of the parking lot show that the asphalt parking lot and the concrete motorcycle parking pad do not align perfectly: the concrete pad juts a couple inches above the asphalt surface. It appears that one side of the slab has been chiseled down to make the transition between the two surfaces less dramatic, suggesting that the defect was well-known to the owner.

         Jade carried her son, a diaper bag, and a gym bag across the asphalt parking lot toward the front entrance of the club. As she was crossing the parking lot, she caught her toe on the motorcycle parking pad lip and fell with L.K. in her arms. Both mother and son fell onto the concrete slab. L.K.'s injuries appeared to be limited to his forehead and mouth. Jade took L.K. immediately to their family doctor about a half mile away. The physician cleaned L.K.'s superficial wounds, and told Jade that the wounds would heal without further medical attention. Jade noticed that L.K. would cry whenever she touched his right foot, but the doctor did not notice anything out of the ordinary at that time.

         Jade returned home with L.K., but when she removed his jumper to change his diaper, she noticed his right leg was swollen. She immediately took him to the hospital. X-rays showed that his right femur was broken. That same evening, he was transported to a hospital to undergo surgery on his leg. Two screws were used to help manipulate the bone back into place. L.K. wore a cast for five-and-a-half weeks and some time later had a surgery to remove the screws in his leg. L.K. underwent five weeks of physical therapy to relearn how to walk. L.K.'s therapy went well, but subsequent physical therapy was needed because L.K. was having difficulty running correctly. According to Jade, her son appears to have recovered from his broken leg and is now left only with a scar on his right leg.

         The plaintiff filed the complaint on February 12, 2016 in the Wayne County, Michigan circuit court, and the defendant removed the case to this Court on May 17, 2016, alleging diversity of citizenship. Discovery was completed sometime before February 15, 2017, when the defendant filed its motion for summary judgment. The Court heard oral argument on May 2, 2017.

         II.

         The defendant advances three substantive arguments: (1) that the plaintiff waived her right to sue the club when she signed the membership agreement that said as much; (2) that the change in elevation was not a “defect” in the parking lot that would trigger premises liability under Michigan law; and (3) that the condition of the parking lot was open and obvious to the average person, and therefore there was no duty imposed on the club owner to its customers to warn or otherwise protect them. The defendant says that there are no fact issues that need resolving before addressing these issues, and therefore it is entitled to a judgment as a matter of law under Federal Rule of Civil Procedure 56(a).

         Summary judgment is appropriate “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). Under Rule 56, the party bringing the summary judgment motion has the initial burden of informing the court of the basis for its motion and identifying portions of the record that demonstrate the absence of a genuine dispute over material facts. Mt. Lebanon Pers. Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir. 2002). If the party opposing the motion contends facts are in dispute, she may not “rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact” but must make an affirmative showing with proper evidence to defeat the motion. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir. 1989). A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing “evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The Court then “must construe the evidence and draw all reasonable inferences in favor of the nonmoving party.” Hawkins v. Anheuser-Busch Inc., 517 F.3d 321, 332 (6th Cir. 2008). “Summary judgment . . . is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Hunt v. Cromartie, 526 U.S. 541, 549 (1999) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson, 477 U.S. at 242).

         This case is before the Court on the basis of diversity jurisdiction under 28 U.S.C. § 1332, and the plaintiff's claims are based entirely on state law. Therefore, the Court must apply the law of the forum state's highest court. Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938). All agree that Michigan law applies to this dispute. If the state's highest court has not decided an issue, then “the federal court must ascertain the state law from ‘all relevant data, '” Garden City Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1130 (6th Cir. 1995) (quoting Bailey v. V. & O Press Co., 770 F.2d 601, 604 (6th Cir. 1985)), which can include “the state's intermediate appellate court decisions, as well as the state supreme court's relevant dicta, ” Ososki v. St. Paul Surplus Lines, 156 F.Supp.2d 669, 674 (E.D. Mich. 2001) (internal quotation marks and citation omitted).

         A.

         As an initial matter, the parties appear to agree that it is Michigan's premises liability law that governs this dispute, and not the more general rules that apply to other negligence cases. Michigan courts distinguish “between claims arising from ordinary negligence and claims premised on a condition of the land.” Buhalis v. Trinity Continuing Care Servs., 296 Mich.App. 685, 692, 822 N.W.2d 254, 258 (2012) (citing James v. Alberts, 464 Mich. 12, 18-19, 626 N.W.2d 158, 162 (2001)). If the plaintiff alleges an injury resulting from a dangerous condition on the defendant's property, “the action sounds in premises liability rather than ordinary negligence; this is true even ...


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