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Leszyczynski v. The Home Depot USA Inc.

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

January 15, 2020

Kim Leszyczynski, Plaintiff,
The Home Depot USA Inc., Defendant.

          Mag. David R. Grand Judge



         Plaintiff Kim Leszyczynski brings this case against Defendant The Home Depot USA Inc., alleging that she slipped and fell on a red Slurpee beverage in Defendant's Roseville, Michigan location. (See ECF No. 1, PageID.2.) Plaintiff was injured as a result of the fall and is suing Defendant for damages on theories of premises liability, negligence, respondeat superior, and nuisance. (Id. at PageID.17-22.)

         Before the Court is Defendant's October 2019 motion for summary judgment and attorney fees. (ECF No. 12.) Plaintiff did not respond to the motion. For the reasons set forth below, Defendant's motion for summary judgment is GRANTED as to all claims, and this case is dismissed. The parties may submit supplemental briefing on attorney fees.

         I. Background

         Plaintiff is a Florida resident who, in 2016, regularly traveled to Roseville, Michigan for a real estate renovation project. (ECF No. 12-3, PageID.146.) On November 2, 2016, Plaintiff and two companions, Ms. Stephanie Floyd and Mr. Paul Skipper, drove to the Roseville Home Depot to purchase home repair supplies for this project. (Id.) With Ms. Floyd waiting in the car, Plaintiff and Mr. Skipper passed through the store's main entrance, turned left, and began walking toward the Garden Center. (Id. at PageID.151-152.) While walking, Plaintiff looked ahead of her and toward the Garden Center. (Id. at PageID.153.) Plaintiff suddenly “felt [her]self in motion, [her] right leg slid out from underneath [her], ” and then she “was on the ground, ” having “basically [done] the splits and landed on [her] knee.” (Id. at Page.151.) Plaintiff realized that she had slipped on an icy, red “Slurpee” drink that had “splattered” across the floor. (Id. at PageID.152.) Plaintiff did not specify the size of the splatter in her pleadings or deposition, but noted that the liquid was “a bright, red Slurpee type of thing” and that some of it wet her hand and stained her pant leg. (Id. at PageID.153.) Mr. Skipper, who had been walking “a couple of feet” to Plaintiff's side, did not fall. (Id. at PageID.152.)

         After falling, Plaintiff was “in shock.” (Id. at PageID.153.) Mr. Skipper helped Plaintiff to her feet so that she could “hobble[]” to the Garden Center to finish her shopping. (Id.) After paying for her items and returning to the car, Plaintiff spoke with Ms. Floyd about the accident. Plaintiff realized that she needed to buy an additional item, and Ms. Floyd suggested that Plaintiff also report her fall. (Id. at PageID.153, 176.)

         Plaintiff estimates that she and Ms. Floyd re-entered the store about twenty to thirty minutes after Plaintiff had fallen. (Id. at PageID.154.) Plaintiff spoke to a cashier, Ms. Allison Treppa, and asked whether anyone had cleaned up a red spill. (ECF No. 12-9, PageID.194.) Ms. Treppa, whose station had a partial view of the aisle where Plaintiff had fallen, was unaware of a spill and called over the manager on duty. (Id. at PageID.192, 194, 197.) When the manager-Ms. Kathleen Steinberg-arrived, Plaintiff described the incident and wrote down her contact information. (ECF No. 12-3, PageID.154.) Ms. Treppa also completed an incident report. (ECF No. 12-10, PageID.200.)

         Though Plaintiff could not remember whether she showed Ms. Steinberg the spot where she had fallen, (ECF No. 12-3, PageID.154), Ms. Steinberg attested that she inspected the spot that Plaintiff pointed out while Plaintiff looked on from the counter. (ECF No. 12-6, PageID.177-178.) Ms. Steinberg did not see any red liquid. (Id. at PageID.178.) Plaintiff then asked Ms. Steinberg about a product in the Garden Center, and Ms. Steinberg directed another employee to assist her. (Id.)

         After Plaintiff went back to the Garden Center, Ms. Steinberg ordered Ms. Treppa to ask if anyone had “cleaned something up with some paper towel” and to find out whether “there was anything in the garbage up there in the garden department and around [the] service desk area, in the immediate vicinity.” (Id. at PageID.179.) Ms. Steinberg also asked the employees in the area whether they had seen any red spills or seen anyone fall. (Id.) The employees indicated that they had not, and Ms. Treppa attested that nobody found any red liquid in their garbage cans. (ECF No. 12-9, PageID.194.) Ms. Treppa also noted in her deposition that she had not personally seen any red spills, that she was unaware of anyone else falling, and that she had just returned from break and had not heard any other reports of a spill in the Garden Center. (Id. at PageID.197.) None of the Home Depot employees took pictures of the site where Plaintiff had fallen. Ms. Steinberg noted in her deposition that, “had there been a liquid there, I would have taken a picture but because there was nothing there, I did not take a picture.” (ECF No. 12-6, PageID.181-182.). During Plaintiff's second visit to the store, Plaintiff took pictures of the spot where she alleged that she fell, but the pictures do not show any red liquid spill. (See ECF Nos. 12-3, PageID.154; 12-4, PageID.166-168; 12-6, PageID.177.) Rather, they are close-ups of a clear off-white floor. (ECF No. 12-4, PageID.166-168)

         After reporting the incident, Plaintiff left the store and did not immediately seek medical attention or otherwise contact an emergency provider. (ECF No. 12-3, PageID.154.) About a week after the fall, when Plaintiff had returned to Florida, she sought treatment for pain in her right ankle, right knee, and left groin. (Id. at PageID.156.) Plaintiff was additionally experiencing pain in her neck and left shoulder. (Id. at PageID.157.) To this day, Plaintiff alleges that she experiences residual complications from these injuries, including general pain, driving difficulties, and reduced movement. (See Id. at PageID.158-159.)

         Plaintiff filed this lawsuit in Macomb County Court on September 20, 2018. (ECF No. 1, PageID.15.) Defendant removed the case to this Court on November 2, 2018 pursuant to diversity jurisdiction, (id.), and the parties conducted discovery through 2019. At Plaintiff's deposition, she testified that she did not believe there had been a problem with the Roseville Home Depot's lighting, and she had not experienced problems “seeing where [she was] walking.” Plaintiff additionally attested that, to her knowledge, there were no physical obstructions between the aisle and the Garden Center where she fell. (ECF No. 12-3, PageID.153, 155.) Plaintiff also attested that, prior to her fall, she had been to the Roseville Home Depot location “approximately about 200 times.” (ECF No. 12-3, PageID.142.)

         On October 3, 2019, Defendant moved for summary judgment on all claims. (ECF No. 12.) Plaintiff did not respond.

         II. ...

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