United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT 
J. MICHELSON, U.S. DISTRICT JUDGE.
a restaurant is undergoing construction. As a result, the
floor has a tiled area and a slightly-lower untiled area and
transition between the two areas is mostly covered by a dark
floor mat. Would an ordinary diner, casually inspecting the
premises, have overlooked the slight drop? Deciding if a
reasonable jury could answer “yes” to this
question is the sole task now before the Court.
September 2015, Lindsey Kramer, her husband, Jason Kramer,
and their two kids went to a Panera Bread restaurant. (R. 16,
PID 224.) The family first went to the register area to order
their food. (R 17, PID 224, 239, 298, 301.) The floor in that
area was tiled. (R. 16, PID 239.) Kramer and one child waited
in the register area for their order to come up while her
husband and other child went to get a table. (R. 16, PID
224-25.) After the food arrived, Kramer picked up the tray
and started walking to the table her husband had found,
taking a more-direct route to the table than the one her
husband had used (he had stopped to get drinks). (R. 16, PID
224-25, 236, 238, 249.) Kramer's path took her across a
dark mat covering a transition from tiled floor to untiled
floor (the restaurant was under construction). (R. 16, PID
238.) As Kramer walked across the mat she fell: “I felt
under my foot the difference in flooring [a different
height]. . . . My right ankle twisted. And I twisted my back
and fell . . . directly onto my bent . . . left knee.”
(R. 16, PID 225, 239.) Jason came over and helped Kramer to
their table. (R. 16, PID 249.) Later, Kramer went to urgent
care and later still, had arthroscopic knee surgery and still
later, filed this lawsuit against Panera LLC. (R. 16, PID
227, 231; R. 1.)
asks this Court to end this case by granting it summary
judgment. (R. 16.) Its only argument is that the uneven floor
was “open and obvious” and so it had no duty to
warn Kramer of it. (R. 16, PID 202.)
has a “duty to use reasonable care to protect
invitees” like Kramer “from unreasonable risks of
harm posed by dangerous conditions” on its property.
Hoffner v. Lanctoe, 821 N.W.2d 88, 94 (Mich. 2012).
But aside from a limited “special aspects”
exception not now at issue, Panera has “no duty to
protect or warn of dangers that are open and obvious.”
Id. This is “because such dangers, by their
nature, apprise an invitee of the potential hazard, which the
invitee may then take reasonable measures to avoid.”
Id. A dangerous condition is “open and
obvious” if “‘an average user with ordinary
intelligence [would] have been able to discover the danger
and the risk presented upon casual inspection.'”
Joyce v. Rubin, 642 N.W.2d 360, 364 (Mich. Ct. App.
2002) (quoting Novotney v. Burger King Corp., 499
N.W.2d 379, 381 (Mich. Ct. App. 1993)); see also
Hoffner, 821 N.W.2d at 94 (citing Joyce and
Novotney for test of “open and
obvious”). So, at summary judgment, the question is,
viewing the evidence in the light most favorable to Kramer,
whether a reasonable jury could find that an ordinary diner,
conducting a “casual inspection” of his
surroundings as he orders food and then walks to his table,
would fail to notice a slight drop in the floor covered by a
mat. See Joyce, 642 N.W.2d at 364; Fed.R.Civ.P.
56(a). If the answer is “yes, ” this case goes to
does the evidence show? Kramer testified that as she began
walking with the tray toward her husband, she could not see
the mat covering the tile-untiled transition due to a wall
and tables. (R. 16, PID 225, 238-39.) She recalled that as
she continued walking, the table left her line of sight and
she could see the mat. (R. 16, PID 238.) But seeing the mat
is not the same as seeing a change in floor height under the
mat: “Q. Could you see the height differential as you
were walking toward the black carpet? A. No. Q. Why not? A.
It was covered with the carpeting and it was all one color. .
. . [W]hen I stepped on the black carpet, my ankle felt the
different height. Q. And you're saying you couldn't
see that before you walked on it? A. Correct.” (R. 16,
PID 240.) And, said Kramer, if there were a photo taken from
the register area, this hypothetical photo of the mat area
would not show uneven flooring. (R. 16, PID 240.)
se mat area-but taken from somewhere around the Kramers'
table, i.e., from a perspective almost opposite of
Kramer's. The photo (see the appendix to this opinion) at
best shows a subtle change in the mat's surface at the
tile-to-no-tile transition-subtle enough that a jury could
think an ordinary person would miss it upon a glance. And a
glance at the floor was all a “casual inspection”
would entail, as “[p]eople in ordinary life do not
‘inspect' the ground before they walk, absent some
special reason to do so, such as the presence of ice or snow.
. . . [T]here is a critical difference between being aware of
one's surroundings and looking down at the ground while
walking.” Matteson v. Nw. Airlines, Inc., 495
Fed.Appx. 689, 692 n.3 (6th Cir. 2012).
husband also testified about whether the uneven flooring was
obvious. His path to the table was different than
Kramer's, so he could only speculate that she could not
see the uneven floor. (See R. 16, PID 253.) But he
could say what he saw from his perspective: “[f]rom my
position taking that [photo] I could see the different floor
heights.” (R. 16, PID 253.) Jason's testimony is
not dispositive of the obviousness question, however, because
an ordinary diner's casual inspection of the floor could
have been from Kramer's perspective, not Jason's.
See Karim v. Konja, No. 297985, 2011 WL 4634202
(Mich. Ct. App. Oct. 6, 2011) (“A hazard visible only
from certain vantage points is not ‘open and
obvious' if the hazard could not be seen by an average
person of ordinary intelligence placed in the same position
as the plaintiff.”); Dyer v. Marquette Gen. Hosp.,
Inc., No. 252413, 2005 WL 1227177, at *1 (Mich. Ct. App.
May 24, 2005) (finding, where two hallways formed a
“T” such that the plaintiff walking down one
could not see hazard cones in the other, that
“[r]easonable minds could differ on the question
whether the cones gave plaintiff any notice of the wet
evidence also includes testimony from a Panera employee:
“I believe it was pretty obvious, the
difference.” (R. 17, PID 303.) But what would be
obvious to an employee who presumably knows the terrain is
not necessarily what is obvious to an ordinary diner. And the
employee did not testify that it was obvious upon a
“casual inspection.” Further, even if the
employee did mean to say that it was obvious both to an
ordinary diner and upon casual inspection, there would still
be a genuine dispute as to the “open and obvious”
nature of the tiled-untiled transition given Kramer's
testimony and the photo.
the evidence does not establish that every reasonable jury
would find that, upon a “casual inspection, ” an
ordinary diner would have spotted the change in floor height
that Kramer tripped on.
conclusion is not contrary to any decision uncovered by the
Court. There is no shortage of opinions on the openness and
obviousness of hazards on floors. There are even a lot of
opinions about uneven ground. The ones this Court reviewed
say that steps, uneven pavement, potholes, and sunken manhole
covers are most often open and obvious. See e.g.,
Bertrand v. Alan Ford, Inc., 537 N.W.2d 185, 187-88
(Mich. 1995) (“steps and differing floor levels [are]
not ordinarily actionable”); Basacchi v. Fawzi
Simon, Inc., No. 329503, 2017 WL 188025, at *3 (Mich.
Ct. App. Jan. 17, 2017) (sunken manhole cover); Marchetto
v. Kiss, No. 270772, 2007 WL 29233, at *2 (Mich. Ct.
App. Jan. 4, 2007) (uneven driveways and sidewalks). This is
even true when the uneven pavement is covered by leaves,
shade, or dark of night. See Warber v. Trinity Health
Corp., No. 239665, 2003 WL 21995502, at *2 (Mich. Ct.
App. Aug. 21, 2003) (sidewalk “deeply shaded by
vegetation”); Williams v. Holiday Ventures
Apartments, Inc., No. 296051, 2011 WL 711443, at *1
(Mich. Ct. App. Mar. 1, 2011) (leaf-covered walkway);
Basacchi, 2017 WL 188025, at *4 (sunken manhole
cover in darkness); Pincomb v. Diversified Inv. Ventures,
LLC, No. 324989, 2016 WL 620432, at *4 (Mich. Ct. App.
Feb. 16, 2016) (uneven payment in darkness). But while it may
be obvious that leaves or darkness often mask uneven outdoor
pavement, it is much less obvious that a mat would mask
uneven indoor flooring. Or, at least, a reasonable jury could
think that. Cf. Blackwell v. Franchi, 899 N.W.2d
415, 418 (Mich. Ct. App. 2017) (finding that a reasonable
jury could find that an 8-inch step from a hallway into an
unlit room was not open and obvious); Sovis v. Hyatt
Corp., No. 250859, 2005 WL 176974, at *2 (Mich. Ct. App.
Jan. 27, 2005) (finding that tile-to-carpet transition was
open and obvious where the plaintiff noticed “a piece
of ‘rubber cuff' running from the carpeting up to
the tile” and “noticed that the tile was slightly
higher than the carpeting”); Murray v. Delta
Coll., No. 217635, 2000 WL 33406913, at *1, 4 (Mich. Ct.
App. Sept. 26, 2000) (finding that a reasonable jury could
find that half-inch depressed area of an indoor floor was not
an open and obvious hazard).
says this case is just like Novotney v. Burger King
Corp. and there the court found that no reasonable jury
could find the hazard was not open and obvious. (R. 16, PID
210.) True, like this case, Novotney involved a
plaintiff unknowingly stepping from one area onto a lower
area and falling. 499 N.W.2d at 380. But the lower area was a
handicap access ramp connecting a parking lot to a sidewalk.
Id. at 381-82 & n.4. The Court fails to see how
that is “almost exactly the same” (R. 16, PID
210) as a mat covering the slight drop from tiled to untiled
floor inside a restaurant.
also stresses that after Kramer fell, both her and husband
noticed the uneven flooring. (R. 16, PID 228, 235 (Kramer);
R. 16, PID 253 (Jason).) So Panera says, it was obvious upon
casual inspection. (See R. 16, PID 194, 207, 210.)
But the fact that the Kramers saw the uneven flooring after
the fall does not mean it was readily discoverable before the
fall, for the fall may have brought attention to the hazard.
See Matteson, 495 Fed.Appx. at 694 (“And while
all of the witnesses were able to see the substance after
Matteson fell, it is not clear whether they could see the
substance only because Matteson had disturbed, and called
attention to, the spill by stepping in it, or because the
substance was indeed easily visible.”).
also makes much of the fact that Jason was able to identify
the uneven flooring in the photo of the mat and surrounding
area. (R. 16, PID 206, 210, 253.) But a photo where the mat
is the center of attention is not akin to the “casual
inspection” of a diner walking to his table. And asking
someone to identify a hazard in a photo likewise draws
attention to it. (See R. 16, PID 253 ...