United States District Court, E.D. Michigan, Southern Division
ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE
OPINION AND ORDER DENYING IN PART AND GRANTING IN
PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
GERSHWIN A. DRAIN UNITED STATES DISTRICT COURT JUDGE
States District Court Judge Gershwin A. Drain United States
Magistrate Judge Anthony P. Patti
26, 2016, Kathleen Gorsline (“Plaintiff”) filed
the instant tort action against Speedway LLC
(“Defendant” or “Speedway”),
asserting claims of premises liability and ordinary
negligence. See Dkt. No. 1. Plaintiff asserts she
sustained injuries after falling over a water display at one
of Defendant's stores. Plaintiff originally filed this
action in state court, and the Defendant filed a notice of
removal under 28 U.S.C. §§ 1332 and 1441 on August
17, 2016. See Dkt. No. 1.
before the Court is Defendant's Motion for Summary
Judgment, filed on May 23, 2017. See Dkt. No. 17.
Defendant seeks summary judgment on both Plaintiff's
premises liability and ordinary negligence claims.
Id. Plaintiff filed a Response in Opposition to
Defendant's Motion on June 6, 2017, and Defendant filed a
Reply in Support on June 19, 2017. See Dkt. Nos. 19,
reasons that follow, the Court DENIES IN PART and GRANTS IN
PART Defendant's Motion for Summary Judgment .
September 3, 2015, Plaintiff entered a Speedway convenience
store in Burton, Michigan and allegedly suffered harm. Dkt.
No. 1-2, p. 5-6 (Pg. ID 14- 15).
Plaintiff entered through the main entrance, the checkout
counter would have been visible several feet straight ahead
and slightly to her right. Dkt. No. 19-3, p. 4 (Pg. ID 231).
Newspapers rested on a stand directly to her right, adjacent
to the checkout counter. Id. To Plaintiff's left
were four aisles, all positioned horizontal to the main
entrance. Id. At the far side of each aisle was a
large cooler, and this cooler spanned the entire width of the
far wall. Id.
entering the store, Plaintiff picked up a newspaper and
lottery slips and proceeded to checkout. Dkt. No. 17-2, p. 4
(Pg. ID 141). Because the checkout line extended far into the
second aisle, Plaintiff proceeded down the first aisle to
reach the back of the line. Id. As she walked down
the first aisle, she did not stop to examine any items and
did not notice any merchandise displays or advertisements.
Id. at 5 (Pg. ID 142). The store was well-lit and
nothing obstructed Plaintiff's view of the white, tile
floor. Id.; Dkt. No. 17-3, p. 2 (Pg. ID 153). When
she reached the end of the first aisle, Plaintiff turned
right at the cooler, and then right into the second aisle.
Dkt. No. 17-2, p. 5 (Pg. ID 142). Plaintiff took one step
down the second aisle and then “fell due to a milk
crate type box on which a small box of water was placed
directly past the corner of the aisle.” Dkt. No. 1-2,
p. 6 (Pg. ID 15); Dkt. No. 17-2, p. 6 (Pg. ID 143). Plaintiff
testified that prior to her fall she did not see the water
display. Dkt. No. 17-2, p. 10 (Pg. ID 147). She acknowledged,
however, that after her fall the water display was
“pretty obvious” to see. Id. at 7 (Pg.
display was a case of 16.9 ounce bottled water with clear and
blue packaging which rested on a blue storage
crate. Dkt. No. 17-2, pp. 6-7 (Pg. ID 143-44);
Dkt. No. 19-4, p. 5 (Pg. ID 236). It stood roughly one foot
high. Dkt. No. 17-2, p. 7 (Pg. ID 144); see also
Dkt. No. 17-5, p. 4 (Pg. ID 159).
situated at the inside corner of the second aisle, at the end
of this aisle. Dkt. No. 19-2, p. 2 (Pg. ID 227). Defendant
designated this area for promotional products and, in its
operations manual, referred to the area as Power Wing 5
(“PW5”). Dkt. No. 17-5, p. 5 (Pg. ID 160).
According to Speedway employee Daniel Ford, the Defendant
placed the water display at ¶ 5 with the intention that
customers might notice and purchase the water. Dkt. No. 17-6,
p. 5 (Pg. ID 165). Ford testified that power wings are common
at supermarkets and gas stations, and are frequently referred
to as “endcap” displays. Id. The general
manager of Defendant's store at the time of the incident,
Kirsten Cranick, testified that prior to Plaintiff's fall
the water display had been at ¶ 5 for at least several
days and perhaps as long as one month. Dkt. No. 17-5, p. 3
(Pg. ID 158).
surveillance cameras generally covered the area where
Plaintiff fell, but none captured Plaintiff's fall. Dkt.
No. 17-5, p. 3 (Pg. ID 158). Surveillance cameras did capture
Plaintiff walking down the first aisle carrying a newspaper
with both hands. Dkt. No. 17-2, p. 11-12 (Pg. ID 148-49).
Plaintiff denies that the newspaper impacted her ability to
see the water display. Id.
Plaintiff and Defendant agree that Defendant's Exhibit B
accurately represents the situation as it existed on the date
of the incident. See Dkt. No. 17-3.
Plaintiff alleges that as a result of her fall she sustained
severe injuries, including “a three-part surgical neck
fracture of the left proximal humerus, shoulder limitation of
movement and strength, [sic] neck and back pain radiating
into her arms and legs with numbness.” Dkt. No. 19, p.
10 (Pg. ID 212).
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). To demonstrate the existence of a genuine
issue of material fact, the nonmoving party must present
sufficient evidence upon which a jury could reasonably find
for that party; a “scintilla of evidence” is
insufficient. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 243, 252 (1986); see also Nat'l Satellite
Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th
Cir. 2001). A court must accept as true the non-movant's
evidence and draw “all justifiable inferences” in
the non-movant's favor. See Anderson, 477 U.S.
at 255. The essential inquiry is ...