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Misko v. Speedway Petroleum Corp.

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

May 29, 2018

SPEEDWAY, LLC, Defendant.



         This is 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[1] (“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 Defendant's motion.


         On 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.)

         Plaintiff 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 was ice:

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 to move.
Q: And then so the color, describe the color.
A: Black.
Q: And the shape, was it a circle, was it a square, was it irregular shaped?
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 like blacktop.
Q: Can you describe why you didn't notice that it was ice?
A: Because it appeared to be like the blacktop.
A: And it was very dark but it still just appeared as the blacktop.
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.)

         Speedway 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.)

         On the 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.)

         Ms. 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.)

         Officer 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?
A: Yes.
Q: Where was that ice ...

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