United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
Page Hood, United States District Court Chief Judge
29, 2017, Defendant filed a Motion for Summary Judgment.
[Dkt. No. 14] The Motion has been fully briefed. The Court,
having concluded that the decision process would not be
significantly aided by oral argument, previously ordered that
the motion be resolved on the motion and briefs submitted by
the parties. E.D. Mich. L.R. 7.1(f)(2). [Dkt. No. 18] For the
reasons that follow, the Court grants Defendant's Motion
for Summary Judgment.
has lived in Michigan most of his life and is familiar with
Michigan weather. (Dkt. No. 14, Ex. 2 at 34-37). On November
17, 2014, Plaintiff slipped on a patch of black ice in the
parking lot of Defendant's Dearborn, Michigan store.
Plaintiff slipped as he exited his vehicle at approximately
8:04 a.m., resulting in serious back injuries.
deposition, Plaintiff testified that “[w]hen I was
driving in[, ] I noticed a few areas of ice . . .”
Id. at 32. Plaintiff noticed “different areas
of ice patches around, um, shiny areas on the ground too . .
.” Id. Plaintiff also testified (moments
later) that, as he drove from his home to the store, he
“[did]n't recall” there being any snow or ice
on the ground but that the weather was “a little
gloomy.” (Dkt. No. 16, Ex. 1 at 33). When he pulled
into Defendant's parking lot, it was “ten to
fifteen” percent full, id. at 75, and
“it was light enough where you didn't need
[head]lights” - “daylight” but not
“full daylight” because it was gloomy.
Id. at 33-34. Plaintiff stated that he did not
notice any ice as he pulled into his parking space, and it
was only when he was getting up from his fall that he noticed
any ice. Id. at 48. Photographs taken by Plaintiff
approximately 30 minutes after Plaintiff fell show: (1) snow
on Plaintiff's vehicle, the ground and the roof of
Defendant's building; and (2) ice in the parking lot next
to his vehicle, where he had fallen. (Dkt. No. 14, Ex. 6
(especially Deposition Exhibits B, F, G, I, and J)).
from the U.S. Department of Commerce, National Oceanic &
Atmospheric Administration (“NOAA”) show that:
(a) temperatures had warmed above freezing in the 24 hours
prior to the incident but dropped below freezing at the time
of the incident; and (b) frozen and liquid precipitation had
fallen in the Dearborn area during the 24 hours preceding the
incident. (Dkt. No. 14, Ex. 3-5).
APPLICABLE LAWS & ANALYSIS
Standard of Review
56(a) of the Rules of Civil Procedures provides that the
court “shall grant summary judgment 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). The presence of factual disputes will
preclude granting of summary judgment only if the disputes
are genuine and concern material facts. Anderson v.
Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). A dispute
about a material fact is “genuine” only if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
Although the Court must view the motion in light most
favorable to the nonmoving party, where “the moving
party has carried its burden under Rule 56(c), its opponent
must do more than simply show that there is metaphysical
doubt as to the material facts.” Matsushita
Electric Industrial Co. v. Zenth Radio Corp., 475 U.S.
574, 586 (1986); Celotex Corp. v. Caterett, 477 U.S.
317, 323-24 (1986). Summary Judgement must be entered against
a party who fails to make a showing sufficient to establish
the existence of an element essential to that party's
case, and on which that party will bear the burden of proof
at trial. In such a situation, there can be “no genuine
issue as to any material face, ” since a complete
failure of proof concerning an essential element of the
nonmoving party's case necessarily renders all other
facts immaterial. Celotex Corp., 477 U.S. at 322-23.
A court must look at the substantive law to identify which
facts are material. Anderson, 477 U.S. at 248.
premises liability action, Plaintiff has alleged that
Defendant negligently failed to maintain its parking lot free
of black ice. To prevail on a premises liability action, a
plaintiff must prove the following elements of negligence:
(1) the defendant owed a duty; (2) the defendant breached
that duty; (3) an injury proximately resulted from that
breach; and (4) the plaintiff suffered damages. Benton v.
Dart Properties, Inc., 270 Mich.App. 437, 440 (2006);
Taylor v. Laban, 241 Mich.App. 449, 452 (2000).
“[T]he existence of a legal duty is a question of law
for the court to decide.” Anderson v. Wiegand,
223 Mich.App. 549, 554 (1997). “Unless the defendant
owed a duty to the plaintiff, the analysis cannot proceed
further.” Bell & Hudson, PC v. Buhl Realty
Co., 185 Mich.App. 714, 717 (1990).
premises possessor is not an absolute insurer of the safety
of its invitees. Quinlivan v. The Great Atlantic &
Pacific Tea Co., Inc., 395 Mich. 244 (1975). However, a
premises possessor does owe “a duty to an invitee to
exercise reasonable care to protect the invitee from an
unreasonable risk of harm caused by a dangerous condition on
the land.” Lugo v. Ameritech Corp., Inc., 464
Mich. 512, 516 (2001). There is no duty to protect an invitee
against dangerous conditions that are open and obvious
dangers, unless special aspects of a condition make even an
open and obvious risk unreasonably dangerous. Watts v.
Michigan Multi-King, Inc, 291 Mich.App. 98, 102
(2010). The test to determine if a danger is open
and obvious is whether an average user of ordinary
intelligence would have been able to discover the danger and
the risk presented upon casual inspection. Mann v.
Shusteric Enterprises, Inc, 470 Mich. 320, 328 (2004);
Joyce v. Rubin, 249 Mich.App. 231, 238 (2002).
Scott v. Kroger, 2010 WL 3184488 (Mich. Ct. App.