United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION
FOR RECONSIDERATION (Doc. 15)
COHN UNITED STATES DISTRICT JUDGE
a tort case. Plaintiff William Young (Young) is suing
defendant Speedway, LLC (Speedway) seeking damages after a
glass pot of coffee shattered causing hot coffee to spill on
him. Young suffered burns to his ankles and feet. Speedway
filed a motion for summary judgment. (Doc. 8). The Court
denied the motion for the reasons stated on the record at a
hearing on April 4, 2018. (Doc. 14).
the Court is Speedway's motion for reconsideration (Doc.
15) to which Young has responded (Doc. 17). For the reasons
that follow, the motion is DENIED.
order to obtain reconsideration, Speedway must show a
palpable defect by which the Court and the parties have been
misled and that a different disposition of the case must
result from a correction of the defect. See E.D.
Mich. LR 7.1(h). A palpable defect is a defect that is
obvious, clear, unmistakable, manifest, or plain. Witzke
v. Hiller, 972 F.Supp. 426, 427 (E.D. Mich. 1997).
says that the Court erred in applying the doctrine of res
ipsa loquitor. In Jones v. Porretta, 428 Mich. 132
(1987), the Michigan Supreme Court held that the doctrine of
res ipsa loquitur “entitles a plaintiff to a
permissible inference of negligence from circumstantial
evidence.” Id. at 150. The court explained
that “[t]he major purpose of the doctrine of res ipsa
loquitur is to create at least an inference of negligence
when the plaintiff is unable to prove the actual occurrence
of a negligent act.” Id. A plaintiff may rely
on the res ipsa loquitur doctrine if: (1) the event was of a
kind that “ordinarily does not occur in the absence of
someone's negligence;” (2) it was “caused by
an agency or instrumentality within the exclusive control of
the defendant;” (3) it was not caused by “any
voluntary action or contribution on the part of the
plaintiff;” and (4) evidence of the true explanation of
the event was “more readily accessible to the defendant
than to the plaintiff.” Id. at 150-151
(quotations and citations omitted). Essentially, a prima
facie res ipsa loquitur case proceeds on a theory that, but
for negligence, the claimed injury does not ordinarily occur.
Id. at 157. See also Burns v. William Beaumont
Hosp., 2017 WL 2200606, at *2 (Mich. Ct. App. May 18,
says that res ipsa is inapplicable because the coffee pot was
not in the “exclusive control” of Speedway at the
time it shattered. In support, Speedway cites several cases,
in Target v. Boyer, 2005 WL 602563 (Mich. Ct. App.
Mar. 15, 2005), an unpublished per curium opinion of the
Michigan Court of Appeals, “the plaintiff reached up to
a fireplace display at defendant's store to turn around a
price tag hanging from the fireplace screen. The fireplace
screen toppled toward her, bringing down a display of
fireplace utensils.” Id. at *1. The court of
appeals found plaintiff could not establish that the display
was defective and therefore rejected plaintiff's premises
liability claim. The court of appeals also found that res
ipsa did not apply because, “the equipment was not
within defendant's exclusive control, but within the
control of plaintiff and countless other shoppers.”
Id. at *2. Speedway says that like the fireplace
display, the coffee pot was within Young's control and
the control of other Speedway customers.
makes too much out of the court of appeals' statement. A
fair read of the case shows the court of appeals was focused
on the fact that nothing about the fireplace display was
dangerous and there was nothing unusual about the display
which could have caused it to fall. Here, the fact that the
coffee pot shattered- something that would not normally occur
or occur in the absence of some defect-distinguishes this
case from Boyer.
also relies on Arsenault v. Designer Warehouse Center,
Inc., 2014 WL 5464883 (Mich. Ct. App. Oct. 28, 2014),
another unpublished opinion. In Arsenault, the
plaintiff asked a salesperson for help getting some
merchandise off of a high shelf. While the salesperson was
getting the merchandise and plaintiff was not watching, a
mannequin fell from above and struck plaintiff. The court of
appeals noted that res ipsa applied because the mannequin was
high on the wall and “beyond the reach of
defendant's customers” and therefore “surely
within the defendant's exclusive control.”
Id. at *3.
also cites the unpublished opinion of Rogoszewski v.
State Lanes, Inc., 2006 WL 1185394 (Mich. Ct. App. May
4, 2006). In Rogoszewski, the plaintiff slipped and
fell on the bowling lane approach at a bowling alley and
broke his leg. Plaintiff contended that there must have been
an oily substance on the lane which caused him to fall. In
addition to rejecting plaintiff's negligence claim
because plaintiff could not show that there was such a
hazard, the court of appeals found res ipsa did not apply
because he could not show that the bowling lane approach was
in defendant's exclusive control because plaintiff and
others had been using it for an hour before the fall. The
court of appeals also found that plaintiff could not
establish that the injury was one that does not happen in the
absence of negligence because “people do slip and fall
in the absence of negligence.” Id. at *3.
says that reading Arsenault, Boyer, and
Rogoszewski together, res ipsa does not apply where
the instrumentality is accessible to others. This
interpretation proves too much. The exclusive control
requirement is not so narrow as to preclude application of
res ispa where a plaintiff and others have contact with the
instrumentality. Here, the coffee pot was in Speedway's
exclusive control because- even though Young and others could
use it-Speedway maintained the coffee pot within its store
and it was placed there by Speedway for customers to use.
Speedway cannot escape liability for the coffee pot by simply
saying that the coffee pot was used by others. Moreover, the
nature of the event - a coffee pot shattering upon lifting it
up and pouring coffee - is not something that occurs in the
absence of negligence.
Speedway cites Hasselbach v. TG Canton, Inc., 209
Mich.App. 475 (1994). In Hasselbach, plaintiff was
helping her elderly husband into the shower. She turned on
the water. Her husband complained the water was too hot and
he backed away, falling on plaintiff and breaking her leg.
The plaintiff sued the landlord, the plumbing contractor, and
manufactures of the water heater and thermostat, asserting
liability on the grounds that there was a sudden surge of hot
water. The court of appeals found that res ipsa did not apply
a possible explanation of the events leading up to this
accident is that plaintiff, attempting to turn down the hot
water, actually turned the hot water up. The fact that
plaintiff denies having turned the hot water up does not
change the fact that the ...