Little v. Bloomin' Brands, Inc.

          OPINION

          GORDON J. QUIST, UNITED STATES DISTRICT JUDGE

         Plaintiff, Kathryn Little, has sued Defendant, Bloomin' Brands, Inc., alleging a claim for premises liability/negligence for injuries that she sustained when she stepped into a pothole or cavity in the pavement of Bloomin Brands' parking lot. Bloomin' Brands moves for summary judgment, arguing that it is not liable for Little's injuries because the pothole/cavity was open and obvious and no special aspects rendered its open and obvious nature unreasonably dangerous.

         Because an average person with ordinary intelligence would have discovered the condition on Bloomin' Brands' premises on casual inspection, and no reasonable juror could find otherwise, the Court will grant Bloomin' Brands' motion and dismiss Little's complaint with prejudice.

         I. Facts

         Bloomin' Brands operates an Outback Steakhouse Restaurant at 4880 Marsh Road, Okemos, Michigan. On May 30, 2017, at approximately 6:00 p.m., Little and her husband, Douglas Little, drove to the Outback Steakhouse to meet some friends for dinner. (ECF No. 56-2 at PageID.386.) Douglas drove the vehicle and Kathryn rode in the passenger seat. The weather was sunny and no water was on the ground. (Id.) Douglas drove into the restaurant's parking lot and selected a spot next to a landscape island, with no vehicles parked next to him. Upon entering the parking lot, Kathryn had noticed it “was a mess”-meaning that “there were huge, huge areas that were potholes.” (Id. at PageID.387.) Douglas parked the vehicle so that the passenger side of the vehicle was next to the curb of the landscape island. (Id.)

         Kathryn opened her car door and stepped out of the vehicle. She looked straight ahead and was not looking down. When Kathryn was completely out of the vehicle and as she was shutting the door, she took a step with her left leg and stepped into a hole or cavity in the asphalt. Kathryn's left ankle twisted, and she took another step with her right leg to try to correct herself. (Id. at PageID.387.) However, Kathryn fell onto the uneven surface of the curb and the parking lot, and her leg snapped. (Id.) Kathryn did not look down because she “didn't even think about that.” (Id. at PageID.388.)

         Douglas did not notice any potholes when he drove into the parking lot. (ECF No. 56-4 at PageID.419.) After he got out of the car and closed his door, he heard Kathryn “let out a big yell, ” and he rushed around to the other side of the vehicle and saw her lying on the ground in pain. (Id. at PageID.420.) At that point, Douglas observed “the general disrepair of the parking lot” around where Kathryn fell, meaning “maybe an inch, two inches broken-up concrete.” (Id.)

         In addition to breaking her right leg, Kathryn suffered a severe sprain of her left ankle. Kathryn filed a complaint against Bloomin' Brands on or about January 3, 2018, in the Ingham County Circuit Court. Bloomin' Brands subsequently removed the case to this Court on the basis of diversity jurisdiction.

         II. Discussion

         A. Applicable Law^[1]

         1. Bloomin' Brands' Duty

         Kathryn, as Bloomin' Brands' customer, was an invitee. Benton v. Dart Prop., Inc., 270 Mich.App. 437, 440, 715 N.W.2d 335, 338 (2006) (per curiam). A possessor of land owes invitees a duty to use reasonable care to protect them from an unreasonable risk of harm caused by a dangerous condition on the land. Hoffner v. Lanctoe, 492 Mich. 450, 460, 821 N.W.2d 88, 94 (2012); Quinlivan v. Great Atl. & Pac. Tea Co., Inc., 395 Mich. 244, 251, 235 N.W.2d 732, 735 (1975). This duty extends to dangerous conditions the possessor “knows or should know the invitees will not discover, realize, or protect themselves against.” Bertrand v. Alan Ford, Inc., 449 Mich. 606, 609, 537 N.W.2d 185, 186 (1995) (citations omitted). Thus, the possessor must protect invitees from dangers of which the possessor is aware and from those dangers which the possessor could have discovered with reasonable care. Kroll v. Katz, 373 Mich. 364, 374, 132 N.W.2d 27, 32 (1965).

         2. Open and Obvious Conditions

         A possessor of land is under no duty to protect an invitee from dangers that are open and obvious. Bertrand, 449 Mich. at 612-13, 537 N.W.2d at 188. “[W]here the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee unless he should anticipate the harm despite knowledge of it on behalf of the invitee.” Id. at 613, 537 N.W.2d at 188 (italics in original). A condition is considered open and obvious if “it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection.” Hoffner, 492 Mich. at 461, 821 N.W.2d at 94-95 (footnote omitted). The inquiry employs an objective standard, “calling for an examination of the objective nature of the condition of the premises at issue.” Id. at 461, 821 N.W.2d at 95 (internal quotation marks and footnote omitted). “The proper question is not whether this plaintiff could or should have discovered the [dangerous condition], but ...