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Gorsline v. Speedway LLC

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

September 15, 2017

Kathleen Gorsline, Plaintiff,
v.
Speedway LLC, Defendants.

          ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE

          OPINION AND ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [17].

          GERSHWIN A. DRAIN UNITED STATES DISTRICT COURT JUDGE

         United States District Court Judge Gershwin A. Drain United States Magistrate Judge Anthony P. Patti

         I. INTRODUCTION

         On July 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.

         Presently 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, 20.

         For the reasons that follow, the Court DENIES IN PART and GRANTS IN PART Defendant's Motion for Summary Judgment [17].

         II. FACTUAL BACKGROUND

         On 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).

         When 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.

         Upon 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. ID 144).

         The display was a case of 16.9 ounce bottled water with clear and blue packaging which rested on a blue storage crate.[1] 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).

         It was 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).

         Defendant's 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.

         Both 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.

         Finally, 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).

         II. LEGAL STANDARD

         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). 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 ...


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