United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT 
STEPHEN J. MURPHY, III UNITED STATES DISTRICT JUDGE.
2, 2018, Defendant Outback Steakhouse of Florida, LLC
("Outback") removed Plaintiff Georgina
Williams's personal injury complaint from state court.
ECF 10. On May 3, 2019, Outback filed a motion for summary
judgment. ECF 28. The Court reviewed the briefs and finds
that a hearing is unnecessary. E.D. Mich. LR 7.1(f). For the
reasons below, the Court will grant Outback's motion for
February 19, 2017, Plaintiff went to Outback's Southfield
Restaurant with several family members. ECF 29, PgID 379.
While being shown to her table, Plaintiff slipped and fell.
Id. Plaintiff alleged that she fractured her right
shoulder and sustained other injuries. ECF 10-1, PgID 57. The
restaurant manager, Monica Smith, responded when Plaintiff
fell. ECF 29, PgID 380. On April 30, 2018, Plaintiff filed
her complaint, which included counts for (1) premises
liability, (2) negligence, and (3) nuisance. See ECF
10-1, PgID 57-61.
judgment is proper if the movant shows that there is "no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). A fact is material for purposes of summary judgment if
its resolution would establish or refute an "essential
element of a cause of action or defense asserted by the
parties[.]" Kendall v. Hoover Co., 751 F.2d
171, 174 (6th Cir. 1984) (quoting Black's Law
Dictionary 881 (6th ed. 1979)).
Court views the facts and "draw[s] all reasonable
inferences in the light most favorable to the non-moving
party." Stiles ex rel. D.S. v. Grainger Cty.,
819 F.3d 834, 848 (6th Cir. 2016) (citation omitted). The
Court must then determine "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 v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986). And although the
Court may not make credibility judgments or weigh the
evidence, Moran v. Al Basit LLC, 788 F.3d 201, 204
(6th Cir. 2015), a mere "scintilla" of evidence is
insufficient to survive summary judgment; "there must be
evidence on which the jury could reasonably find for the
plaintiff," Anderson, 477 U.S. at 252. Finally,
"[e]vidence submitted in opposition to a motion for
summary judgment must be admissible. Hearsay evidence . . .
must be disregarded." Alpert v. United States,
481 F.3d 404, 409 (6th Cir. 2007) (quoting U.S.
Structures, Inc. v. J.P. Structures, Inc., 130 F.3d
1185, 1189 (6th Cir. 1997)).
Court will analyze Plaintiff's state-law claims under
Michigan law because when "federal jurisdiction is based
on diversity . . . the substantive law of the forum
state" governs. Conlin v. Mortg. Elec. Registration
Sys., Inc., 714 F.3d 355, 358 (6th Cir. 2013) (citation
omitted). The Court will address each of Plaintiff's
theories of liability in turn.
possessor of land is subject to liability for physical harm
caused to his invitees by a condition on the land, if, but
only if," the possessor (1) knew of, or through
reasonable care would have discovered, the condition, and
"should [have] realize[d] that it involve[d] an
unreasonable risk of harm" to invitees; (2) should have
anticipated that invitees would "not discover or realize
the danger, or [would] fail to protect themselves against
it;" and (3) failed to exercise reasonable care to
protect invitees. Riddle v. McLouth Steel Prods.
Corp., 440 Mich. 85, 93 (1992) (quoting Restatement
(Second) of Torts § 343 (Am. Law Inst. 1965)). The
notice element requires plaintiff to show that a defendant
had actual or constructive notice of the condition.
Lowrey v. LMPS & LMPJ, Inc., 500 Mich. 1, 10
notice requires a defendant to have knowledge of the
condition. Plaintiff maintains that Outback had actual notice
of the floor's condition. But Plaintiff's argument is
flawed for several reasons. First, during her deposition,
Plaintiff testified that Smith told her "yes [the floor]
is very slippery." ECF 29-1, PgID 408-09. Plaintiff thus
concludes that Outback had actual notice of the floor's
condition. But Plaintiff's evidence is hearsay and
"must be disregarded." Alpert, 481 F.3d at
409 (6th Cir. 2007) (citation and quotation omitted).
Smith testified that she did not know the floor was slippery.
See ECF 29-8, PgID 492 (Smith's deposition
indicating that she did not tell Plaintiff and her family
that she saw that the floor was slippery); id. at
497 (Smith's deposition advising that, in ten years, she
had never "personally heard any customers complain that
the floors themselves were slippery"). Thus, Outback
produced evidence demonstrating that it did not have actual
notice of the floor's allegedly slippery condition. ...