Amine v. United States

NABILA AMINE, Plaintiff, v. UNITED STATES OF AMERICA, et al., Defendants.

Case No. 16-14414

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

March 28, 2017

OPINION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

Plaintiff Nabila Amine has filed this action for damages under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b)(1). Plaintiff alleges that she slipped and fell on an icy, snow-covered walk while entering a post office in Novi, Michigan, and brings claims of negligence and premises liability against Defendants the United States of America and the United States Postal Service for her injuries. (Dkt. # 1) Before the court is Defendants' motion to dismiss the complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Dkt. # 4.) The motion is fully briefed and a hearing is unnecessary. See E.D. Mich. L.R. 7.1(f)(2). For the reasons that follow, the court will grant Defendants' motion.

I. STANDARD

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal for failure to state a claim upon which relief may be granted. Under the Rule, the court construes the complaint in the light most favorable to the plaintiff and accepts all well-pleaded factual allegations as true. League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). This standard requires more than bare assertions of legal conclusions. Bovee v. Coopers & Lybrand C.P.A., 272 F.3d 356, 361 (6th Cir. 2001). "[A] formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Any claim for relief must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Erickson v. Pardus, 551 U.S. 89, 93 (2007). "Specific facts are not necessary; the statement need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests'" Id. (quoting Twombly, 550 U.S. at 555).

However, to survive a motion to dismiss, a complaint must provide sufficient facts to "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "The plausibility standard is not akin to a "probability requirement,' but it asks for more than a sheer possibility that defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555.) Additionally, on a motion to dismiss, a court is usually limited to the complaint and attached exhibits, but it may also consider "public records, items appearing in the record of the case, and exhibits attached to the defendant's motion to dismiss so long as they are referred to in the complaint and are central to the claims contained therein." Erie County v. Morton Salt, Inc., 702 F.3d 860, 863 (6th Cir. 2012) (quoting Bassett v. Nat'l Coll. Athletic Ass'n., 528 F.3d 426, 430 (6th Cir. 2008)).

Sovereign immunity bars lawsuits against the United States absent its consent to be sued. See United States v. Sherwood, 312 U.S. 584, 586 (1941). Through the FTCA, Congress has consented to lawsuits based on federal employees' torts. Ellison v. United States, 531 F.3d 359, 361 (6th Cir. 2008). In suits under the FTCA, federalcourts determine the liability of the United States according to the substantive law of the states where the event giving rise to the alleged liability occurred. See 28 U.S.C. § 1346(b)(1); Young v. United States, 71 F.3d 1238, 1242 (6th Cir. 1995). The parties agree that Michigan's substantive law applies here.

II. DISCUSSION

According to her complaint, taken as true for the purposes of this order, Plaintiff was lawfully on the premises of the Novi Post Office in Novi, Michigan on February 25, 2014. (Dkt. # 1.) There was a "large accumulation of snow which covered ice in front of the main entrance way" to the post office, hiding the ice from Plaintiff's view. (Id. at Pg. ID 2.) Plaintiff, needing to mail an application to renew her daughter-in-law's green card, attempted to enter the post office despite the obstacle. She slipped on the ice and suffered significant, lasting injuries. (Id.)

Plaintiff claims both ordinary negligence and premises liability. "Michigan law distinguishes between claims arising from ordinary negligence and claims premised on a condition of the land." Buhalis v. Trinity Continuing Care Servs., 822 N.W.2d 254, 258 (Mich. Ct. App. 2012) (citing James v. Alberts, 626 N.W.2d 158 (Mich. 2001)). Because Plaintiff's injury "arose from an allegedly dangerous condition on the land"—ice under a pile of snow on the walkway—"the action sounds in premises liability rather than ordinary negligence[.]" Id. (finding plaintiff's claim that she slipped on ice in defendant's parking lot to sound in premises liability, not ordinary negligence) (citing James, 626 N.W.2d at 158). That Plaintiff alleges Defendants created the dangerous condition makes no difference. See id. ("[T]his is true even when the plaintiff alleges that the premises possessor created the condition giving rise to the plaintiff's injury.").

Under Michigan law, "a premises possessor owes a duty to use reasonable care to protect invitees from an unreasonable risk of harm caused by dangerous conditions on the premises, including snow and ice conditions." Hoffner v. Lanctoe, 821 N.W.2d 88, 91 (Mich. 2012).¹ "Michigan law provides liability for a breach of this duty of ordinary care when the premises possessor knows or should know of a dangerous condition on the premises of which the invitee is unaware and fails to fix the defect, guard against the defect, or warn the invitee of the defect." Id. at 94 (citing Bertrand v. Alan Ford, Inc., 537 N.W.2d 185, 185 (Mich. 1995)). With respect to ice and snow cases, "a premises owner has a duty to exercise reasonable care to diminish the hazards of ice and snow accumulation, requiring that 'reasonable measures be taken within a reasonable time after an accumulation of ice and snow to diminish the hazard of injury to the invitee.'" Id at 96 (quoting Quinlivan v. Great Atlatnic & Pacific Tea Co., Inc., 235 N.W.2d 732, 740 (Mich. 1975).

Defendants argue that Plaintiff's complaint fails to state a claim because, taken as true, Plaintiff's allegations describe an open and obvious danger. "[L]iability does not arise for open and obvious dangers unless special aspects of a condition make even an open and obvious risk unreasonably dangerous." Id. at 91 (emphasis in original). This is because "such dangers, by their nature, apprise an invitee of the potential hazard, which the invitee may then take reasonable measures to avoid." Id. at 94 (citations omitted). Whether a danger is open and obvious "depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered itupon casual inspection." Id. at 95 (citing, among others, Joyce v. Rubin, 612 N.W.2d 360, 364 (Mich. Ct. App. 2002); Lugo v. Ameritech Corp., Inc., 629 N.W.2d 384, 387-88 (Mich. 2001)). "Michigan courts thus ask whether the individual circumstances, including the surrounding conditions, render a snow or ice condition open and obvious such that a reasonably prudent person would foresee the danger." Id. at 96-97 ("no dispute" that "readily apparent patch of ice" on sidewalk in front of defendant's fitness center was open and obvious) (citations omitted).

Defendants quote Ververis v. Hartfield Lanes, 718 N.W.2d 382, 386 (Mich. Ct. App. 2006) (on remand) (per curiam), stating, "[A]s a matter of law . . ., by its very nature, a snow-covered surface presents an open and obvious danger because of the high probability that it may be slippery." (Dkt. # 4, Pg. ID 27.) In the Sixth Circuit, federal courts "accept the holding of a state intermediate appellate court with respect to state law unless [the court] determines that the highest court of the state would decide otherwise." Bennett v. MIS Corp, 607 F.3d 1076, 1095 (6th Cir. 2010) (quoting United States v. Philp, 460 F.3d 729, 732 (6th Cir. 2006)). Thus, unless this court determines that the Michigan Supreme Court would overturn Ververis, the snow-covered ice that Plaintiff slipped on was an open and obvious danger as a matter of law.

Plaintiff does not argue that the Michigan Supreme Court would decide otherwise. Rather, Plaintiff attempts to distinguish Ververis in two ways: "First, Ververis involves the natural accumulation of snow on top of ice. . . . Our case involves man-made snow mounds placed on top of ice directly in front of the only doorway and they are knee high." (Dkt. # 6, Pg. ID 50.) "Second, the Plaintiff in Ververis actually saw theice. It was impossible for Plaintiff in our case to have notice of the ice due to the fact the man-made snow mounds were covering the ice." (Id.) The court disagrees.

A. Unnatural Accumulation of Snow

First, Plaintiff contends that Michigan courts apply a different standard in cases where the snow accumulation was not natural but a result of the premises possessor's actions. (See Dkt. # 6, Pg. ID 50-51.) For support, Plaintiff points to Whinnen v. 231 Corp., 212 N.W.2d 297, 301 (Mich. Ct. App. 1973) and Hampton v. Master Prods., 270 N.W.2d 514 (Mich. Ct. App. 1978). Defendant objects that Whinnen and Hampton are part of a line of cases concerning the liability of municipalities relating to their obligation to clear public roads and sidewalks. (Dkt. # 7, Pg. ID 65.)

Hampton, at least, makes this explicit:

The mere presence of snow or ice on a highway, street, or walk in wintertime, which causes travelers difficulty, does not constitute negligence on the part of the public authorities. A municipality in Michigan is not negligent if it omits to protect pedestrians from dangers to life and health which are caused by the accumulations of ice and snow on sidewalks from natural causes. . . .

When,

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