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Smith v. Woodward Detroit CVS, LLC

United States District Court, E.D. Michigan, Southern Division

August 8, 2019

RITA SMITH, Plaintiff,
v.
WOODWARD DETROIT CVS LLC, AND CVS PHARMACY, INC., Defendants.

          OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF NO. 24)

          PAUL D. BORMAN UNITED STATES DISTRICT JUDGE

         This is a premises liability action. Plaintiff was shopping for back-to-college supplies with her granddaughter at the Defendant Woodward Detroit CVS, LLC (“CVS”) when Plaintiff tripped and fell over a display cart, located near the check out lanes at the entrance/exit to the store, that held cases of bottled water. Defendant now moves for summary judgment, arguing that the large blue display cart was open and obvious and that there were no special aspects of the display cart that created a uniquely high likelihood of severe harm. The matter is fully briefed and the Court held a hearing on July 24, 2019. For the reasons that follow, the Court GRANTS the Defendants' motion for summary judgment.

         I. BACKGROUND

         On November 7, 2015, Rita Smith, a woman in her late eighties at the time of the incident, was shopping for back-to-school items with her college-age granddaughter, Megan Trabalka Smith, at the CVS located in White Lake Township. Plaintiff testified that she was walking down the aisle and turned to go around the corner when her “feet bumped into” the display cart at the end of the aisle. (ECF No. 30-3, Jan. 19, 2018 Deposition of Rita Smith, 34-35, 44, 52-53, PgID 402, 404, 406.) Plaintiff testified that the cart was “not in plain sight, ” but after she tripped and fell she was able to see the cart at the edge of the aisle. (Id. at 54-55, PgID 407.) Plaintiff testified that she was looking around the store but not looking at the ground. She testified that if she had been looking at the ground, “maybe I wouldn't have stumbled over it.” (Id. at 56, PgID 407.) Plaintiff testified that the cart protruded about a yard from the end of the aisle and if she had been approaching from the cashier end of the store, she would have been able to see the cart with water on it. (Id. at 58, PgID 408.) Plaintiff testified that she immediately stood up and told the people who came to assist her that she was “fine” because she was embarrassed that she had been “so stupid as to fall over a cart.” (Id. at 60-61, PGID 408.) She handed her credit card to her granddaughter so that she could check out and buy her items. (Id. at 61, PgID 408.) While Plaintiff was handing the credit card to her granddaughter, the store manager came and Plaintiff explained to him that she had tripped over the cart. (Id. at 62, PgID 409.) Plaintiff told the store manager that they should not have the cart there for seniors to trip over but she told him she was fine and refused medical assistance. (Id. at 66-67, PgID 410.) Plaintiff, who has been on the blood thinner Coumadin for many years after having a heart-valve replacement, suffered a large hematoma as a result of the fall, which she did not notice until later that day when she was at home. (Id. at 13, 34-35, 39, PgID 396, 402.) The hematoma had to be drained twice to remove all of the blood that formed, and Plaintiff claims a number of allegedly related disabling injuries to her back and legs, as well as depression, as a result of the fall, although she has not had any doctor diagnose these additional symptoms as related to the fall. (Id. at 19-20, 30, 34-38 PgID 398, 401-03.)

         Plaintiff's granddaughter, Megan Smith, testified that she did not see her grandmother fall as she was some distance behind her in the store. (ECF No. 30-12, June 19, 2018 Deposition of Megan Smith, 13-14, PgID 631-32.) Ms. Smith described the cart as a “really low-level” cart that was blue in color. (Id. at 15, PgID 633.) Ms. Smith testified that the cart was butted up right against the end of the aisle and there was a case of water stacked on the cart at the end that was closest to the aisle end cap. (Id.) Ms. Smith did not know anything about the conversation that the Plaintiff had with the store manager and after Ms. Smith used the Plaintiff's credit card to purchase the items, she and the Plaintiff left the store. (Id. at 22, PgID 639.) Ms. Smith testified that the cart was very low to the ground and there was only one case of water on it and it was hazardous to walk around. (Id. at 34, PgID 651.) After watching the video, Ms. Smith testified that in her opinion it was not obvious to someone coming around the corner of the aisle that the cart was there. (Id. at 36, PgID 653.)

         Ms. Julianna Corvell was working the cash register at the CVS right in front of the display cart at the time that the Plaintiff fell. (ECF No. 24-3, Feb. 26, 2018 Deposition of Julianna Corvell 10, 17, PgID 291, 293.) Ms. Corvell described the display cart as a long cart with a tall handle on one end that was stacked with cases of water. (Id. at 24-25, PgID 294-95.) She testified that the cart was visible to anyone who was looking where they were going and that Plaintiff was looking in the opposite direction when she turned to come to the cash register and she tripped over the cart. (Id. at 31-32, PgID 296.)

         Daniel Spell, the Store Manager who was on duty that day, recalled the Plaintiff tripping and falling on the water display on or around November 7, 2015. (ECF No. 24-3, April 5, 2018 Deposition of Daniel M. Spell 14, PgID 271.) Mr. Spell testified that this was the first incident he was aware of that someone fell in the CVS store since he began there in 2011. (Id. at 17-18, PgID 272.) Mr. Spell testified that the water display cart is a permanent display that has wheels but does not move around the store and is always positioned in the same place by the cash register. (Id. at 23-24, PgID 273.) He testified that there were only two cases of water on the cart at the time that the Plaintiff fell and that the display cart was visible to any customer coming around the corner of the aisle even with only the two cases of water and the outermost end void of product. (Id.) Mr. Spell spoke to the Plaintiff after she fell and asked her several times if she needed medical help - she refused medical assistance and said she was fine and Mr. Spell filled out an incident report and called it into Gallagher Bassett's liability reporting line for CVS incidents. (Id. at 27-29, PgID 274-75.) Mr. Spell testified that the water cart has varying numbers of cases on it throughout the day because when cases are purchased the cart is not always immediately restocked. (Id. at 33-34, PgID 276.) Mr. Spell testified that regardless of how many cases of water are on the cart, the display cart is obvious to anyone watching where they are walking. (Id. at 34, PgID 276.) Mr. Spell described the cart as “bright blue” approximately three feet long and a foot and a half wide with a long flat base and a bright blue handle that extends up about three and a half feet and abuts up against the end of the end cap. He believed that the cart sits about six inches off the floor. Mr. Spell testified that the cart is a permanent piece of the end cap and does not move and that the distance around the cart has sufficient clearance to meet ADA standards and does not pose any type of hazard. (Id. at 42-43, PgID 278.)

         Plaintiff does not dispute the authenticity of the photographs attached to Defendants' motion. (ECF No. 24-2.) Indeed Plaintiff attaches the same photographs, albeit in black and white, to her Response and describes the photographs in her Index of Exhibits as “Photos of CVS Blue Water Cart.” (ECF No. 30-4.) The photographs depict a large cart on wheels that abuts an end cap at the end of an aisle with a three and a half foot high black handle situated up against the end cap. (ECF No. 24-2, PgID 258.) The cart base is an obvious blue against a light grey floor and the cart extends laterally into the aisle, offset against the end cap, so that it is very visible to anyone walking down the aisle and toward the cart, as Plaintiff was in this case. In looking at the second of the photographs, which depicts a front-facing view of the cart against the end-cap, it becomes clear that the cart is offset from the end cap so that customers can access the items on the end-of-aisle display. (ECF No. 24-2, PgID 259.) This location of the water display cart, protruding as it was into the aisle, actually made the cart more visible to someone coming down the aisle toward the entrance of the store and toward the check out area, as Plaintiff was in this case. The water display cart is also clearly visible to every shopper entering the store as it is located directly across from the entrance to the store.

         The CCTV surveillance video depicts the blue cart as it appeared that day, located in an open space directly across from the entrance to the store and just an aisle down from the check out lanes. (ECF No. 27, Exhibit Video Filed in Traditional Manner.) The cart was not fully stocked with water at the time and the photograph depicts two cases of water stacked next to each other toward the handle-end of the cart and an open space at the end of the cart where a case of water likely was removed for purchase. The dark blue base of the cart is visible against the lighter grey flooring over which the end of the cart protrudes.[1] Multiple other shoppers can be seen walking by the cart from all different directions without incident. Specifically, at 1:15:16 a woman can be seen walking right next to the end of the blue display cart and passing by without a problem. At 1:15:38, Plaintiff can be seen coming around the corner of the end of the aisle on which the cart was located. She passes by the rear aspect of the cart but then cuts the corner too sharply and appears to trip over the outer edge of the cart. She falls forward onto her knees with her hands out in front of her and lands on her hands and knees and stomach/chest area. One of the cashiers and a shopper who was checking out move to help the Plaintiff stand up. A man wearing an orange shirt and black pants then approaches to speak with the Plaintiff who is by then standing up. 1:16:17-36. The Plaintiff then appears to be joined by her granddaughter and they appear to hold hands and walk behind the man in the orange shirt off screen. Other shoppers proceed in and out of the store passing by the blue cart without any problem avoiding it. At 1:19:14, a shopper is seen approaching the blue display cart from the very same aisle and direction as the Plaintiff, turning the same direction as the Plaintiff turned (toward the check out lanes) and clearly navigating around the end of the blue cart without incident.

         II. LEGAL STANDARD

         Summary judgment is appropriate where the moving party demonstrates that there is no genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed.R.Civ.P. 56(a). “A fact is ‘material' for purposes of a motion for summary judgment where proof of that fact ‘would have [the] effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties.'” Dekarske v. Fed. Exp. Corp., 294 F.R.D. 68, 77 (E.D. Mich. 2013) (quoting Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984)). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

         “In deciding a motion for summary judgment, the court must draw all reasonable inferences in favor of the nonmoving party.” Perry v. Jaguar of Troy, 353 F.3d 510, 513 (6th Cir. 2003) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). At the same time, the non-movant must produce enough evidence to allow a reasonable jury to find in his or her favor by a preponderance of the evidence, Anderson, 477 U.S. at 252, and “[t]he ‘mere possibility' of a factual dispute does not suffice to create a triable case.” Combs v. Int'l Ins. Co., 354 F.3d 568, 576 (6th Cir. 2004) (quoting Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)). Instead, “the non-moving party must be able to show sufficient probative evidence [that] would permit a finding in [his] favor on more than mere speculation, conjecture, or fantasy.” Arendale v. City of Memphis, 519 F.3d 587, 601 (6th Cir. 2008) (quoting Lewis v. Philip Morris Inc., 355 F.3d 515, 533 (6th Cir. 2004)). “The test is whether the party bearing the burden of proof has presented a jury question as to each element in the case. The plaintiff must present more than a mere scintilla of the evidence. To support his or her position, he or she must present evidence on which the trier of fact could find for the plaintiff.” Davis v. McCourt, 226 F.3d 506, 511 (6th Cir. 2000) (internal quotation marks and citations omitted). “‘The central issue is 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.'” Binay v. Bettendorf, 601 F.3d 640, 646 (6th Cir. 2010) (quoting In re Calumet Farm, Inc., 398 F.3d 555, 558 (6th Cir. 2005)). That evidence must be capable of presentation in a form that would be admissible at trial. See Alexander v. CareSource, 576 F.3d 551, 558-59 (6th Cir. 2009).

         III. ANALYSIS

         Because this is a diversity action, the Court applies Michigan law “as decided by the Michigan Supreme Court.” Kessler v. Visteon, 448 F.3d 326, 329-30 (6th Cir. 2006). “If the Michigan Supreme Court has not yet addressed the issue presented, we must predict how it would rule, by looking to all relevant data, including state appellate decisions.” Id. at 330 (internal quotation marks and citation omitted). “[I]n all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court.” Id. (internal quotation marks and citations omitted).

         “To establish a prima facie case of premises liability [under Michigan law], a plaintiff must establish that 1) the defendant owed the plaintiff a duty, 2) breach of that duty, 3) an injury proximately resulting from that breach, and 4) damages.” Hollerbach v. Target Corp., 443 Fed.Appx. 936, 937-38 (6th Cir. 2011) (citing Fultz v. Union-Commerce Assoc., 470 Mich. 460, 463 (2004)) (alteration added). “In general, a premises possessor owes a duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land.” Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 516 (2001). A premises owner, however, owes no duty to protect a business invitee from or to warn of “open and obvious” dangers:

[I]f the particular activity or condition creates a risk of harm only because the invitee does not discover the condition or realize its danger, then the open and obvious doctrine will cut off liability if the invitee should have discovered the conditions and realized its danger. On the other hand, if the risk of harm remains unreasonable, despite its obviousness or despite knowledge of it by the invitee, ...

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