United States District Court, E.D. Michigan, Southern Division
DEFENDANTS'BLOOMIN' BRANDS, INC. ANDOSI/FLEMINGS,
LLC'S MOTIONFORSUMMARYJUDGMENT [#153]
GERSHWIN A. DRAIN UNITED STATES DISTRICT COURT JUDGE.
before the Court are Motions for Summary Judgment filed by
Defendants Bloomin' Brands, Inc. (“Bloomin'
Brands”) and OSI/Flemings, LLC
(“Flemings”), Gallagher Bassett Services, Inc.
(“Gallagher”), and LaTonya Joplin. Dkt. Nos. 153,
155, 157. For the reasons discussed below, this Court will
grant in part and deny in part Defendants' Bloomin'
Brands and Flemings's Motion. The Court will deny summary
judgment on Plaintiffs' negligence and premises liability
claims. The Court will grant summary judgment on
Plaintiffs' loss of consortium claim. This Court will
hold its decision on Plaintiffs' promissory estoppel
claim so that the parties may continue settlement discussions
on this claim. Therefore, this Court will not consider
Defendants Gallagher and Joplin's Motions for Summary
Judgment at this time [Dkt. Nos. 155, 157].
action arises from a slip and fall incident that occurred on
March 15, 2016 at Flemings Steak House. Dkt. No. 73-1, pg. 3
(Pg. ID 1272). On this date, Plaintiff Cecilia Lakin was
dining with her husband, Plaintiff Sanford Lakin, and a
friend at Flemings Prime Steakhouse. Id. Plaintiffs
are both former personal injury attorneys. Mrs. Lakin asked
for directions to the bathroom, and a hostess led her there.
Id. at pg. 4 (Pg. ID 1273). On the way to the
bathroom, Mrs. Lakin fell on what Mr. Lakin later identified
as spilled water on the ground. Id. at pg. 4, 6 (Pg.
ID 1273, 75). Mrs. Lakin sustained various back, hip, and
buttock injuries that she alleges resulted from the slip and
fall. Id. at pg. 6 (Pg. ID 1275).
March 16, 2016, Mr. Lakin received a phone call from Latonya
Joplin, who identified herself as a liability claims agent
with Gallagher Bassett Services, Inc. Id. at pg. 15
(Pg. ID 1284). Gallagher Bassett was handling the incident
for Bloomin' Brands, Inc. Id. at pg. 17 (Pg. ID
1286). Bloomin' Brands, Inc. is the parent corporation of
Flemings Steak House. That same day, Ms. Joplin emailed Mr.
Lakin, stating that she would be handling the investigation
of the incident for Flemings Steakhouse. Dkt. No. 7-1, pg. 1
(Pg. ID 47). On March 28, 2016, she emailed Mr. Lakin,
stating, “We are going to pay for related and
reasonable medical costs along with pain and suffering to you
and Mrs. Lakin.” Dkt. No. 155-10, pg. 1 (Pg. ID 3594).
The email further stated, “I asked Mrs. Lakin to
contact me because you stated that the information you were
giving me was hearsay since you weren't with her;
however, I can take the information provided to date and move
forward.” Id. Lastly, the email stated,
“[w]e have a separate department that handles Medicare.
As mentioned to you previously, they will be in contact with
you. All other requests will be discussed at a later time, if
necessary.” Id. This was the last time Ms.
Joplin communicated with Mr. Lakin. On March 25, Mr. Lakin
wrote to Joplin and stated, “I have not heard from you.
Are you interested in further communications?”
March 29, Mr. Lakin wrote Ms. Joplin. Dkt. No. 15511. His
letter stated, in part, “I take it by your statement .
. . that you acknowledge liability on behalf of Fleming's
. . . .” Id. at pg. 1 (Pg. ID 3596). He also
provided information needed in order to give proper notice to
the Medicare authority as previously requested by Ms. Joplin.
Id. The Lakin's case was then transferred to
another Gallagher Bassett employee, Kenneth Ligotti, on an
interim basis in November 2016. See Dkt. No. 73-1,
pg. 17 (Pg. ID 1286). On the phone, Mr. Ligotti told Mr.
Lakin that Gallagher was acting on behalf of Bloomin'
Brands, Inc., and that Gallagher was insured up to 1.5
million dollars. Id. Mr. Ligotti also told Mr. Lakin
that settlement should be postponed until Mrs. Lakin
completed all of her medical treatment. Id. On
February 21, 2017, Mr. Ligotti wrote an email to a
representative of Mrs. Lakin's physical therapist that
Bloomin' Brands, Inc. was not accepting liability for the
slip and fall incident. Dkt. No. 7-5, pg. 2 (Pg. ID 53).
September 20, 2017, Plaintiffs filed their initial complaint
against Bloomin' Brands, Flemings, and Gallagher. Dkt.
No. 1. On November 7, 2017, Defendant Gallagher filed a
motion to dismiss the counts of promissory estoppel and
equitable estoppel that Plaintiffs brought against it. Dkt.
No. 14. This Court denied Gallagher's motion to dismiss
on promissory estoppel grounds but granted on equitable
estoppel grounds on January 19, 2018. Dkt. No. 31. Defendants
Bloomin' Brands and Flemings filed a similar motion to
dismiss, which this Court also granted in part and denied in
part. Dkt. No. 34.
September 7, 2018, this Court granted Plaintiffs leave to
file an amended complaint in order to add LaTonya Joplin as a
defendant, but denied Plaintiffs' leave to add claims of
intentional fraud and silent fraud. Dkt. No. 93. Plaintiffs
filed their amended complaint on May 24, 2018. Dkt. No. 73.
Bloomin' Brands and Flemings filed their Motion for
Summary Judgment on January 17, 2019. Dkt. No. 153.
Defendants Gallagher and Joplin filed their Motions for
Summary Judgment on January 18, 2019. Dkt. No. 155, 157.
Plaintiffs responded to Fleming's Motion on February 11,
2019 and responded to Gallagher and Joplin's Motions on
February 13, 2019. Dkt. No. 172, 173, 175. Fleming replied on
February 20, 2019. Dkt. No. 178. Gallagher and Joplin filed a
joint reply on February 27, 2019. Dkt. No. 181.
Rule of Civil Procedure 56(c) governs summary judgment. The
Rule states, “summary judgment shall be granted if
‘there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter
of law.'” Cehrs v. Ne. Ohio Alzheimer's
Research Ctr., 155 F.3d 775, 779 (6th Cir. 1998).
“All factual inferences ‘must be viewed in the
light most favorable to the party opposing the
motion.'” Id. (quoting Matsushita
Elec. Indus., Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)). There is a genuine issue of material fact
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986)). Ultimately, the court evaluates
“whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of
law.” Anderson, 477 U.S. at 251-52.
amended complaint brings a count of promissory estoppel
against all of the Defendants. Dkt. No. 73-1, pg. 14 (Pg. ID
1283). Plaintiffs assert that Ms. Joplin's statements to
Mr. Lakin constituted a promise to pay for Mrs. Lakin's
medical statements, and Plaintiffs relied to their detriment
on that promise. Id. Defendants assert that there
was no promise that the Plaintiffs could have reasonably
relied on. Dkt. No. 153, pg. 30 (Pg. ID 2948); Dkt. No. 155,
pg. 15 (Pg. ID 3450); Dkt. No. 157, pg. 21 (pg. ID 3677).
Plaintiffs further contend that the issue is moot because