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Cannon v. Speedway LLC

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

September 14, 2017

MARY ANN CANNON, Plaintiffs,
v.
SPEEDWAY LLC, Defendants.

          OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [DOC. 11]

          GEORGE CARAM STEEH, UNITED STATES DISTRICT JUDGE.

         Plaintiff, Mary Ann Cannon, filed her complaint in this premises liability action in Wayne County Circuit Court on November 11, 2015. Cannon was represented by counsel. Defendant timely removed the case to this court on January 26, 2016. Plaintiff's counsel participated in discovery, and filed a response to defendant's motion for summary judgment on December 5, 2016. On December 28, 2016, after the dispositive motion was fully briefed, plaintiff's counsel filed a motion to withdraw as counsel. The court held a hearing on the motion to withdraw on January 10, 2017, and entered an order granting the motion and staying the case for 30 days for plaintiff to retain new counsel. The order provided that in the event a new attorney does not file an appearance in that time, plaintiff shall be deemed to be proceeding pro se and the court will rule on the summary judgment motion without oral argument. [Doc. 18]

         In the eight months since plaintiff's counsel withdrew, no new counsel has filed an appearance on her behalf. On July 20, 2017, the court issued an order in which it informed plaintiff it would not continue the stay on the pending motion for summary judgment. [Doc. 23] Because plaintiff was represented by counsel in the drafting of her complaint, throughout discovery and during the briefing of her response to the summary judgment motion, she will not be prejudiced by the court making a determination on defendant's motion without entertaining oral argument.

         This is a premises liability action in which plaintiff allegedly tripped and fell while entering defendant Speedway LLC (“Speedway”) convenience store. Plaintiff alleges that she slipped on a mat near the entrance and fell into a sales rack causing her to lose consciousness and suffer injuries. However, plaintiff's nephew Robert Crane and sister Jill Crane have given testimony that contradicts plaintiff's allegations. Now before the court is defendant Speedway's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff cannot establish that Speedway owed her a duty as an invitee to the premises. Furthermore, she cannot establish that any hazard existed or was not open and obvious. For the reasons given below, the court GRANTS Speedway's motion for summary judgment.

         I. Factual Background

         On July 21, 2013, plaintiff Mary Ann Cannon was traveling home to Kentwood, Michigan from Cedar Point Amusement Park in Sandusky, Ohio. Plaintiff was accompanied by, amongst others, her ten year-old grandson, her adult nephew Robert Crane, and her sister Jill Crane. At some point during the drive, plaintiff stopped at the nearest gas station off of the highway in order to use the restroom. Plaintiff alleges that she was injured when she stopped at the Speedway located at 300 Six Mile Road, Whitmore Lake, Michigan (“Whitmore Lake Speedway”).

         Plaintiff, Robert Crane, and Jill Crane each offer differing accounts of the events of July 21, 2013. These facts are grouped by subject matter as follows: the location of the Speedway, the physical characteristics of the Speedway, and the events of the accident.

         A. Location of Speedway

         Plaintiff testified that she does not recall which highway she was on, or which exit she took to arrive at the Speedway gas station. Furthermore, plaintiff stated that it took about one hour or less to drive from the Whitmore Lake Speedway to her home in Kentwood, MI. Defendant has provided GPS data that shows the travel time and distance between the Whitmore Lake Speedway and plaintiff's house is one hour and forty minutes and 119 miles. (Google Maps, Doc 11-4).

         Robert Crane testified that he also does not remember which highway he and plaintiff traveled on, which exit they took, or the specific Speedway station where the accident took place. (R. Crane Dep. at 14).

         At some point after the incident, plaintiff testified she determined the location of the Speedway when her ten-year-old grandson guided her to the Whitmore Lake Speedway. (Cannon Dep. at 72). However, plaintiff also testified that at the time of the incident, her grandson was asleep. (Id. at 33).

         B. Physical Characteristics of Speedway

         Plaintiff testified that the parking lot was comprised partly of dirt and that a lot of land was cleared off in preparation for building. Plaintiff recalled two sets of doors at the front entrance of the Speedway; specifically including an automatic door. When plaintiff returned to the Whitmore Lake Speedway with her grandson, she identified a mirror in the bathroom that she contends looked the same as the mirror she used on the date of the accident. (Cannon Dep. at 74).

         Robert Crane also stated that the parking lot of the gas station was made up of both dirt and concrete. (R. Crane Dep. at 26). Crane recalls entering through one set of doors, with another set of doors to the left, the ...


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