Lakin v. Bloomin' Brands, Inc.

          OPINIONANDORDERGRANTINGINPARTANDDENYINGINPART DEFENDANTS'BLOOMIN' BRANDS, INC. ANDOSI/FLEMINGS, LLC'S MOTIONFORSUMMARYJUDGMENT [#153]

          HON. GERSHWIN A. DRAIN UNITED STATES DISTRICT COURT JUDGE.

         I. Introduction

         Pending 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].

         II. Factual Background

         This 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).

         On 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?” Id.

         On 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).

         On 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.

         On 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.

         III. Legal Standard

         Federal 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.

         IV. Discussion

         1. Promissory Estoppel

         Plaintiffs' 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 this ...