United States District Court, W.D. Michigan, Southern Division
KATHRYN A. LITTLE, Plaintiff,
v.
BLOOMIN' BRANDS, INC., d/b/a Outback Steakhouse, Defendant.
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 ...