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Kassab v. Target Corporation

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

July 6, 2017

ADIL KASSAB, Plaintiff,
v.
TARGET CORPORATION and DIVERSIFIED MAINTENANCE SYSTEMS, LLC, Defendants.

          OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT [24, 28]

          Nancy G. Edmunds United States District Judge.

         Plaintiff Adil Kassab commenced this suit in state court on June 27, 2016, asserting state-law claims of premises liability and negligence against Defendants Target Corporation (“Target”) and Diversified Maintenance Systems, LLC (“DMS”) arising from injuries suffered by Plaintiff in a slip and fall at a Target store in Sterling Heights, Michigan. Defendant DMS removed the case to this Court on July 28, 2016, citing the diverse citizenship of the parties. See 28 U.S.C. § 1332(a)(1).

         Through the present motions filed in February of 2017, Defendants Target and DMS seek an award of summary judgment in their favor as to each of the claims asserted in Plaintiff's complaint. In support of their motions, Defendants first contend that Plaintiff has failed to produce evidence of a condition at Defendant Target's store that caused him to slip and fall. Defendant Target further asserts that there is no evidence that it either created or had notice of any alleged condition at its store that caused Plaintiff's injury. Defendant DMS, for its part, argues that as an outside vendor that provides housekeeping services at various Target stores, it neither owed a duty to Plaintiff nor breached any such duty that it arguably owed.

         On June 14, 2017, the Court heard oral argument on Defendants' motions. For the reasons stated more fully below, the Court GRANTS each of these two motions.

         I. FACTS

         At around 9:40 p.m. on October 26, 2015, Plaintiff Adil Kassab and two friends visited a Target store located on Metro Parkway in Sterling Heights, Michigan. Plaintiff has testified that it was not raining or snowing that evening, and that the sidewalk was dry as he entered the store. (See Defendant DMS's Motion, Ex. A, Plaintiff's Dep. at 35.) Within a few steps after Plaintiff passed through the main entrance and into an area of tile flooring, his left foot slipped and he fell to the floor, injuring his shoulder and lower back. (See Id. at 11, 17, 37-38.)

         Plaintiff testified that as he entered the Target store, he was watching where he was going and did not see anything on the tile floor in the area where he fell. (See Id. at 37.) In particular, he did not see any water or other liquid on the floor, and his clothes were not wet after he fell. (See Id. at 38, 56.) Plaintiff did notice, however, that the area where he fell had a “clean” smell as though it had been “fresh[ly] mop[ped], ” and that the tile floor was “big time shiny.” (Id. at 37-38, 56.)

         Although Plaintiff recalled that his left foot slipped just before he fell, he had “no idea” what his foot might have slipped on. (Id. at 38.) Thus, he could not say what had caused him to slip and fall, nor whether this incident was attributable to a substance on the floor. (See Id. at 64.) Rather, he speculated that “something” on the floor had caused him to fall, but he could not say this for certain. (See id.) Plaintiff further testified that after he sought assistance from a cashier, he returned to the area where he fell and noticed that it felt “a little slippery” when he ran his foot over this spot on the floor. (Id. at 69-70.)

         The two friends who accompanied Plaintiff to the Target store have provided only a few additional details about the incident. One of Plaintiff's companions, Menhal Yousif, testified that he was walking in front of Plaintiff as the three men entered the store, and that he turned around when he heard Plaintiff yell and discovered that Plaintiff was lying on the floor. (See Defendant DMS's Motion, Ex. B, Yousif Dep. at 7-8, 10.) Because he did not actually see Plaintiff fall, Mr. Yousif could not say what had caused this accident, and when he asked Plaintiff what had happened, Plaintiff responded that he “d[id]n't know, he just fell.” (Id. at 10, 18-19.) Mr. Yousif did not see any water or other liquid on the floor where Plaintiff fell, nor did he notice anything on the floor that Plaintiff might have tripped on. (See Id. at 8, 19.) Mr. Yousif did detect, however, that the floor was “kind of . . . sticky, ” as though it might have just been waxed, but he testified that this sticky area or wax coating was “[c]lear” and could not be seen. (Id. at 8, 24, 26.)

         Plaintiff's other companion, Ghassin Koka, has little to add to the account of Plaintiff's accident. Mr. Koka, like Mr. Yousif, was walking in front of Plaintiff when the men entered the Target store, and he did not see Plaintiff fall. (See Defendant DMS's Motion, Ex. C, Koka Dep. at 9-10.) Rather, Mr. Koka heard a sound behind him, and he turned around to find that Plaintiff had fallen on the floor. (See id.) Mr. Koka did not notice any water or other liquid on the floor inside the store, nor did he see anything else in the area that might have caused Plaintiff to trip or fall. (See Id. at 8-10.)[1] Thus, he could not say whether Plaintiff had slipped, tripped, or fallen for some other reason. (See Id. at 10, 14.)

         An employee at the Target store, Emily Jacob, saw Plaintiff fall out of “the corner of [her] eye” and asked whether Plaintiff was okay, and Plaintiff responded that “he was okay” and was “trying to get up.” (Defendant DMS's Motion, Ex. E, Jacob Dep. at 13-15.) Ms. Jacob then contacted the store's leader on duty, Heather Krueger, to advise her that a customer had fallen near the front entrance to the store, but that “he said he was okay.” (Id. at 15-16.) In response, Mr. Krueger told Ms. Jacob to “let her know if anything else happened” or if Plaintiff “needed anything, ” so Ms. Jacob returned to her work. (Id. at 16-17.) A few minutes later, Plaintiff approached Ms. Jacob and reported that his shoulder was hurt, and Ms. Jacob again radioed Ms. Krueger while Plaintiff proceeded to Guest Services near the store entrance. (See Id. at 19, 22.) About 15 or 20 minutes after Plaintiff's fall, Ms. Jacob visited the area of the store where Plaintiff had fallen, and she testified that the floor was “dry” and that she did not notice any water or other substance on the floor. (Id. at 22-23, 26-27.)

         A second Target employee, Rochelle Tassie, was working at Guest Services at the time of Plaintiff's fall. Ms. Tassie did not see Plaintiff fall, but first learned of this incident when Ms. Jacob notified her. (See Defendant DMS's Motion, Ex. F, Tassie Dep. at 9, 12.) Shortly thereafter, Plaintiff and his two friends came over to Guest Services and asked Ms. Tassie to call for an ambulance. (See Id. at 13.) At some point after the store closed at 10:00 p.m. and Plaintiff had been taken away in an ambulance, Ms. Tassie inspected the area where Plaintiff had fallen, and she testified that she did not notice any water, other liquid, or foreign substance on the floor, nor did she detect that the floor was slick or slippery. (See Id. at 28, 33-35.)

         As noted, Target employee Heather Krueger was the leader on duty at the time of Plaintiff's fall. Ms. Krueger did not witness this fall, but was told by Emily Jacob that a customer had fallen at the main entrance to the store. (See Defendant DMS's Motion, Ex. D, Krueger Dep. at 21-22.) Ms. Jacob indicated in this initial conversation that the customer had gotten up and continued into the store, so Ms. Krueger concluded that “nothing was needed from [her] at the time.” (Id. at 21.) A few minutes later, however, Ms. Krueger was contacted a second time and told that the customer had requested further assistance and asked to be taken to the hospital. (See Id. at 23-24.) In response, Ms. Krueger gathered the paperwork to be completed when a customer is injured at the store, and she proceeded to the front of the store to meet with Plaintiff. (See Id. at 24.) Ms. Krueger then called for emergency medical assistance, asked Plaintiff about his fall and injury, filled out a guest incident report, and waited with Plaintiff until an ambulance arrived. (See Id. at 29-31, 35-36; see also Defendant DMS's Motion, Ex. L, Guest Incident Report.) After Plaintiff had been taken from the store, Ms. Krueger went to the site of Plaintiff's fall to inspect and take pictures of the area, and she testified that she did not observe any water or other substance on the floor that could have caused Plaintiff to fall. (See Krueger Dep. at 39-40, 48-49.)

         Apart from Defendant Target, Plaintiff has named Diversified Maintenance Systems, LLC (“DMS”) as a second defendant in this action. At the time of Plaintiff's slip and fall, DMS had a contract with Target to provide housekeeping services at several Target locations, including the Metro Parkway store where Plaintiff fell. (See Defendant DMS's Motion, Ex. H, Agreement for Store Housekeeping Services.) Under this agreement, a DMS employee arrived at the Metro Parkway store at around 6:00 a.m. each day to clean the floor and perform other housekeeping services. (See Krueger Dep. at 13-14; see also Defendant DMS's Motion, Ex. J, Chornoby Aff. at ¶¶ 5-6.) The record indicates that on the date of Plaintiff's injury, a single DMS employee worked at Target's Metro Parkway store from 6:14 a.m. until 1:56 p.m., and DMS did not provide any further cleaning or housekeeping services at this store after this employee completed his shift. (See Chornoby Aff. at ΒΆΒΆ 5-7.) In ...


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