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Keniston v. United States

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

October 13, 2017

MARGARETTE KENISTON and KERRI MORRISON, Plaintiffs,
v.
UNITED STATES OF AMERICA Defendant.

          DECISION

          AVERN COHN, UNITED STATES DISTRICT JUDGE

         I.

         This is a Federal Tort Claims Act case tried to the Court. Plaintiff, Margarette Keniston (Keniston), says she was injured after slipping and falling in the parking lot of the Saline, Michigan Post Office, while getting out of her daughter's truck to go into the Post Office. The driver of the truck was Plaintiff, Kerri Morrison (Morrison), who says she suffered damages from witnessing Keniston's fall. Liability and damages have been bifurcated.

         Plaintiffs' claim is that the defendant, the United States of America (United States), was negligent in the maintenance of the Post Office's parking lot, particularly because the parking lot was paved with asphalt and drained into concrete pads which had in their center metal grates.

         The juxtaposition of the asphalt and the concrete are illustrated on Exhibits A and B, attached. The edge of the concrete pad is approximately 3/4" higher than the edge of the adjacent asphalt.

         Plaintiffs take the position that the edge of the concrete which they call the lip, was a danger to a pedestrian walking toward the entrance to the Post Office, a danger which was not open and obvious to the walker.

         Defendant takes the position that Keniston did not trip on the lip of the drain pad, and even if she did, the drain pad was not unreasonably dangerous, and even if it was, it was an open and obvious condition that did not pose a special risk of injury.

         The jurisprudence of slip and fall in Michigan law is well known and need not be repeated here. In a case, the facts of which are analogous to the circumstances here, and in which defendant was granted summary judgment, the Michigan Court of Appeals said:

The photographs of the drain cover and the immediate area surrounding it in the lower court record reveal a deteriorated, recessed drain cover with a plainly visible “drop” or depression of several inches below the pavement. Notably, the drain cover is surrounded by a large area of light-colored pavement that makes the area distinct from the rest of the dark-colored pavement in the lot. Thus, even though there is a significant “drop” between the sunken drain cover and the rest of the pavement, the photographs reveal that the danger it presents was readily observable, at least under the normal daylight conditions depicted in the pictures. Further, a sunken drain cover presents a common, everyday hazard - equivalent to a pothole or unevenness in pavement - which generally constitutes, by its very nature, an open and obvious condition that a reasonably prudent person would ordinarily be expected to discover.

Basacchi v. Fawzi Simon, Inc., No. 329503, 2017 WL 188025, at *3 (Mich. Ct. App. Jan. 17, 2017).

         II.

         A.

         As to the particulars of this case, the Court finds:

         1. Keniston was 82 years old at the time of the incident. She lived six (6) blocks from the Post Office, and had been to it more than 100 times. She was familiar with the asphalt and the drain pad. When going to the Post Office, she typically parked in or next to the ...


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