United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT SPEEDWAY
LLC'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 18)
D. BORMAN UNITED STATES DISTRICT JUDGE.
a slip and fall case. Plaintiff alleges that she slipped on
an icy patch in a gas station parking lot when stepping out
of her car to enter the store of the station on the evening
of February 12, 2015, injuring her ankle and suffering other
related injuries. Defendant Speedway LLC
(“Speedway”) now moves for summary judgment,
arguing that Speedway did not cause the condition, did not
have notice, actual or constructive, of the icy patch and,
even if it did have notice, the condition of the parking lot
surface was open and obvious. (ECF No. 18.) Plaintiff filed a
Response (ECF No. 24) and Defendant replied (ECF No. 25). The
Court held a hearing on February 22, 2018, and ordered
supplemental briefing which the parties have submitted (ECF
Nos. 27, 28.) For the reasons that follow, the Court GRANTS
February 12, 2015, at approximately 9:30 p.m., Plaintiff was
riding in the passenger seat of her husband's vehicle as
he parked the car at the Speedway gas station at 300 West 6
Mile Road, Whitmore Lake, Michigan. (Def.'s Mot. Ex. A,
December 16, 2016 Deposition of Laura Ann Misko 15:18-16:10.)
Plaintiff and her husband were not getting gas. They were
going into the store of the Speedway to get coffee and they
parked just two spaces to the left of the front door entrance
into the store. (Misko Dep. 16:11-17:5.) Plaintiff testified
that “it was really cold that night, ” and the
United States Department of Commerce National Climatological
Data for that evening confirms that it was indeed cold -
ranging between 9 and 11 degrees between 9:00 and 11:00 p.m.
(Misko Dep. 21:11-14; Def.'s Mot. Ex. D, Quality
Controlled Local Climatological Data, Hourly Observations
Table, Ann Arbor, MI.)
testified that as she was exiting the passenger side of the
vehicle to follow her husband into the Speedway, she
“just immediately flipped up into the air, ”
without even getting into a full standing position. (Misko
Dep. 17:17-18:14.) Plaintiff testified that as soon as she
planted her right leg outside the car to stand up,
“[t]he pressure from the right leg just put me into the
air and landed on the left heel kind of at an angle and that
was it. . . . So I never really even got a couple steps
off.” (Misko Dep. 22:21-23:6.) The area where she
placed her right foot to get out of the car “appeared
like blacktop” to her but, after she fell, she knew it
Q: I want you to describe as much as possible what you fell
on. Do you know, was it ice?
A: Yes, it was a large area of ice, maybe five or six foot in
diameter as I discovered after I'm lying there because it
was very difficult with my bottom on that ice not being able
Q: And then so the color, describe the color.
Q: And the shape, was it a circle, was it a square, was it
A: Later, I didn't know just then, it just seemed like
there was a lot of ice everywhere then but maybe six to eight
feet in diameter.
Q: Was it a square, a circle?
A: Big circle.
Q: And then was it just pure ice or was it slush?
A: Pure ice.
A: It wasn't visible, the ice, really. It just looked
Q: Can you describe why you didn't notice that it was
A: Because it appeared to be like the blacktop.
A: And it was very dark but it still just appeared as the
A: I could see just dark blacktop.
(Misko Dep. 23:7-23, 25:18-19, 26:12, 26:16-17, 26:21.)
Plaintiff testified that the lighting was “very
dim” and appeared to come only from the front door.
(Misko Dep. 18:20-19:3.) In fact, Plaintiff described the
lighting in the parking lot where she fell as
“poor.” (Misko Dep. 59:16-23.) Plaintiff was
wearing “like a little shoe boot” with a
“chunk heel” about “an inch and a half
high.” (Misko Dep. 19:7-12.)
staff immediately called 911 when informed that Plaintiff had
fallen, and emergency vehicles arrived, Plaintiff recalls,
within just a few minutes. They placed Plaintiff in the
ambulance and transported her to the University of Michigan
hospital. (Misko Dep. 31:16-32:7.) Speedway employee Jennifer
Litwa made the call to 911 and then went outside to tend to
the Plaintiff, whom she recognized as a regular customer at
the Speedway. Ms. Litwa remembered that it was chilly
outside. (Def.'s Mot. Ex. B, May 23, 2017 Deposition of
Jennifer Litwa 6:19-7:18.) Ms. Litwa testified that Speedway
employees have a daily “ECE sheet” that describes
different tasks that the employees are to strive to complete
on each shift. (Litwa Dep. 9:4-10.) There are other
responsibilities that, while not listed on the ECE sheet each
day, employees are required to attend to immediately upon
noticing them - for example a spill on the floor that they
notice or that is brought to their attention or a gas spill.
(Litwa Dep. 9:23-10:23, 12:3-9.) The employees strive to
complete all of the items on the daily ECE sheet, but
“[i]t depends on the flow of customers, customers
first.” (Litwa Dep. 11:9-19.) In addition to
endeavoring to complete the items on the daily ECE sheet and
responding to hazardous conditions like spills of which they
become aware, the Speedway employees are required, once per
shift, to walk around outside the building and to collect
garbage, sweep around the store, and shovel snow and salt any
ice accumulations when weather demands. Employees are to try
to do this once every shift (of which there are three). If
Plaintiff works the 3:00 - 11:00 p.m. shift and there are
only going to be two employees on her shift, someone
“makes time” to do the outside inspection before
the evening. Ms. Litwa testified that “obviously if you
see any ice or snow on the sidewalk you salt it or shovel the
walk.” (Litwa Dep. 12:14-13:18, 21:5-22, 39:3-40:15.)
night of Plaintiff's slip and fall, Ms. Litwa did the
outdoor inspection at 6:00 p.m. because she knew there would
only be two employees on duty for the night shift and she
wanted to get it done before that shift started. Plaintiff
changed the trash bags, and made sure the windshield-cleaning
buckets were full of fluid. Her outside chores required her
to walk directly past the parking spots in front of the store
in order to get to the dumpsters in the back of the store.
There had been no precipitation that day and Ms. Litwa
testified that there was nothing on the parking lot surface
in front of the store where Plaintiff fell - no liquid and no
ice - and if there was she would have salted it. (Litwa Dep.
13:19-15:7.) Ms. Litwa testified that the lighting outside
the store was “very good” - they have a lighting
company that they call to come and change lights immediately
when they go out. The lights are up under a canopy that goes
around the building and they light up “to half way past
the parking spaces.” (Litwa Dep. 16:9-21, 17:16-24.)
Litwa did not see the Plaintiff fall but immediately grabbed
the phone to call EMS and walked outside with Plaintiff's
husband after he informed her that his wife had fallen. Ms.
Litwa was required to, and did, prepare a statement for her
manager describing what occurred. Ms. Litwa reported that
when she went to help Plaintiff, she noticed a frozen spot
underneath the Plaintiff that looked like someone had spilled
something, and that frozen patch was partially covered by
Plaintiff's car on the passenger side. (Litwa Dep.
18:18-20:17.) Ms. Litwa testified that it looked like a spill
“because of the way it was out like a splat.” She
could not immediately tell that the “spill” was
ice. (Litwa Dep. 26:18-27:19.) Ms. Litwa did not speak to
Plaintiff but did go back inside the store to get a warmer
coat to place over Plaintiff while they waited for the EMS.
(Litwa Dep. 32:7-21.) After EMS left and the Plaintiff's
vehicle was gone, Ms. Litwa salted the frozen patch and the
rest of the parking lot. (Litwa Dep. 20:18-21:1.)
Mark Jensen of the Northfield Township Police Department was
dispatched at 9:30 p.m. to the Speedway “to assist with
a slip and fall.” (Def.'s Mot. Ex. C, July 18, 2017
Deposition of Mark Jensen 5:1-6, 9:13-15, 10:5-12.) Officer
Jensen testified that the lighting is very good in the
Speedway parking lot and he offered the following
observations when he arrived at the scene:
Q: Okay. Now when you got out of the car, there was ice on
the ground by Misko's car, correct?
Q: Where was that ice ...