United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT [DOC. 11]
CARAM STEEH, UNITED STATES DISTRICT JUDGE.
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]
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.
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
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
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
Location of Speedway
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).
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).
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).
Physical Characteristics of Speedway
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).
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 ...