United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
F. COX, UNITED STATES DISTRICT JUDGE
shopping at Home Depot, Plaintiff was injured when she
tripped over a pallet lying in the center of a walkway. She
has now sued Home Depot on a premises liability theory and
Defendant has moved for summary judgment. For the reasons
below, the Court shall grant Defendant's motion because
any danger posed by the pallet was open and obvious.
2016, Plaintiff Renee Morris went to a Home Depot in Livonia
to do some shopping. Pl. Dep., p. 19. While searching for
some patio cushions, she walked down a pathway that had patio
furniture to her left and a stack of charcoal to her right.
Id. at 22. Several wooden pallets were also nearby
the charcoal. Id.
Plaintiff was looking at a patio cushion, she tripped over a
light-colored wooden pallet that was lying in the center of
the concrete walkway. Id. at 22, 24; Def. Stmt. of
Material Facts, ¶ 13. The pallet was about 2.5 inches
high and, when lying flat, spanned almost the entire walkway.
Pl. Dep., p. 25-26. Yet Plaintiff claims that she did not see
the pallet because patio furniture was blocking her view of
the walkway. Id. at 22.
Plaintiff fell, Home Deport employee Steve Larkins lifted up
the pallet and propped it up against the
charcoal. Id. at 24. The next day,
Plaintiff returned to the store and filed an incident report.
Id. at 33.
seven months later, Plaintiff filed a negligence suit in
state court against Defendant Home Depot, which removed the
case to this Court on diversity grounds (Doc. # 1). Defendant
has moved for summary judgment (Doc. # 13) and Plaintiff has
responded (Doc. # 15). The Court held a hearing on
Defendant's motion on May 31, 2018.
judgment will be granted when no genuine issue of material
fact exists. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A genuine issue of material fact exists
where “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Id. The Court “must view the evidence, all
facts, and any inferences that may be drawn from the facts in
the light most favorable to the non-moving party.”
Skousen v. Brighton High Sch., 305 F.3d 520, 526
(6th Cir. 2002).
premises liability case, the plaintiff “must prove (1)
that the defendant owed a duty to the plaintiff, (2) that the
defendant breached the duty, (3) that the defendant's
breach of the duty caused the plaintiff's injuries, and
(4) that the plaintiff suffered damages.” Kennedy
v. Great Atlantic & Pacific Tea Co., 737 N.W.2d 179,
181 (Mich. Ct. App. 2007). Here, the only issue is whether
Defendant owed Plaintiff a duty.
landowner owes a duty to use reasonable care to protect
invitees, like Plaintiff, “from unreasonable reasonable
risks of harm posed by dangerous conditions on the
owner's land.” Hoffner v. Lanctoe, 821
N.W.2d 88, 94 (Mich. 2012). But there is generally no duty to
protect an invitee against “open and obvious”
dangers, which, “by their nature, apprise an invitee of
the potential hazard, which the invitee may then take
reasonable measures to avoid.” Id. An
exception to this rule exists only if special aspects of the
condition make the open and obvious risk unreasonable, either
because the hazard is unreasonably dangerous or because the
danger is effectively unavoidable. Id. at 95-96.
argues that the pallet Plaintiff tripped over was open and
obvious. This is determined using an objective standard:
“Whether a danger is open and obvious depends on
whether it is reasonable to expect that an average person
with ordinary intelligence would have discovered it upon
casual inspection.” Id. at 94-95.
undisputed facts show that the pallet spanned nearly the
entire pathway in which Plaintiff was walking. This alone
made it readily visible to a casual observer. See
LaFontaine v. Big Lots Stores, Inc., 2011 WL 6757480, at
* 2 (holding that a pallet sticking out three feet into an
aisle was open and obvious); Summers v. Carter's
Inc., 2005 WL 2372075, at * 1 (Mich. Ct. App. 2005)
(holding that a five-foot strip of plastic wrap lying in an
aisle was open and obvious). What's more, the pallet
contrasted with its surroundings-the light wooden pallet rose
several inches above the concrete floor. See
LaFontaine, 2011 WL 6757480, at * 2 (noting that the
pallet contrasted with the floor); Maronek v. Wal-Mart
Stores, 2008 WL 1959255, at * 2 (holding that the edge
of an exposed black pallet lying on white floor tiles was
open and obvious). It was a clear obstacle in Plaintiff's
path-one that an average person would have observed upon