Collins v. Lowe's Home Ctrs.

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VENERA DAVID COLLINS, Plaintiff, v. LOWE'S HOME CENTERS, LLC, Defendant.

No. 2:20-CV-12771-TGB-CI

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

May 25, 2022

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

TERRENCE G. BERG UNITED STATES DISTRICT JUDGE

Venera Collins slipped and fell at a Lowe's store in Commerce Township, leading to emotional distress and injuries that still affect her. Plaintiff Collins sued Defendant Lowe's Home Centers, LLC under various tort theories. Lowe's moved for summary judgment. That motion will be GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

On February 24, 2018, Plaintiff and her husband were at Lowe's to purchase plumbing supplies. When they were at the register, Mrs. Collins remembered that she wanted to buy moth balls and went to go find them. V. Collins Dep. 32:5-14 ECF No. 12-1, PageID.157. When Plaintiff turned into the aisle she had been directed to, she fell due to what she alleges was a freshly mopped floor that did not have any signage around it. Compl. ¶ 1, ECF No. 1-1, PageID.17. As she describes it, when she turned into the aisle, “I was looking for the balls and [descriptive sound] I don't know what happened. When I looked, the whole floor was wet.” V. Collins Dep. 32:18-33:2, ECF No. 12-1, PageID.157-58. She describes her fall as sudden. Id. at PageID.172-73. She lay on the floor in considerable pain, unable to get up and move, until eventually emergency services arrived, and she was provided with medical attention. Id. at PageID.174-77.

Plaintiff continued to experience pain that she attributes to the accident. She filed a lawsuit in state court on February 28, 2019. The parties engaged in significant motions practice and discovery there. After receiving the Case Evaluation summary with Plaintiff's claim for $74, 522.85 in damages, Defendant timely removed the case to this Court on October 29, 2019. ECF No. 1, PageID.3. After further discovery in this Court, Defendant filed its Motion for Summary Judgment. ECF No. 14. After receiving further briefing, the Court heard argument on the motion on April 26, 2021.

II. STANDARD OF REVIEW

“Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact such that the movant is entitled to a judgment as a matter of law.” Villegas v. Metro. Gov't of Nashville, 709 F.3d 563, 568 (6th Cir. 2013); see also Fed.R.Civ.P. 56(a). A fact is material only if it might affect the outcome of the case under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

On a motion for summary judgment, the Court must view the evidence, and any reasonable inferences drawn from the evidence, in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citations omitted); Redding v. St. Eward, 241 F.3d 530, 531 (6th Cir. 2001).

The moving party has the initial burden of demonstrating an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party carries this burden, the party opposing the motion “must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. The trial court is not required to “search the entire record to establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479-80 (6th Cir. 1989). Rather, the “nonmoving party has an affirmative duty to direct the court's attention to those specific portions of the record upon which it seeks to rely to create a genuine issue of material fact.” In re Morris, 260 F.3d 654, 655 (6th Cir. 2001). The Court must then determine whether the evidence presents a sufficient factual disagreement to require submission of the challenged claims to the trier of fact or whether the moving party must prevail as a matter of law. See Anderson, 477 U.S. at 252.

III. ANALYSIS

A. Premises liability

Plaintiff first brings a claim in Count I for premises liability. A premises possessor (or invitor) owes a duty to invitees, such as customers, to exercise reasonable care to protect invitees from any unreasonable risk of harm caused by a dangerous condition on the land. Lugo v. Ameritech Corp., 629 N.W.2d 384, 386 (Mich. 2001) (citing Bertrand v. Alan Ford, Inc., 537 N.W.2d 185 (Mich. 1995)). There are several elements to a premises liability claim, which the Court will address in turn.

i. Plaintiff has created a genuine issue of material fact regarding notice

Liability for a breach of premises maintenance duty occurs when a 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.” Hoffner v. Lanctoe, 821 N.W.2d 88, 94 (Mich. 2012). To succeed on a premises liability claim, a plaintiff must show either actual or constructive notice regarding the dangerous condition: in the case of something like water on the floor, that “defendant knew about the alleged water . . . or should have known of it because of its character or the duration of its presence.” Lowrey v. LMPS & LMPJ, Inc., 890 N.W.2d 344, 350 (Mich. 2016).

A plaintiff can show notice in a variety of ways. Courts have recognized evidence of a recent spillage or cleaning, a significant length of time that a spill was unresolved, “caution” signs, and indicators regarding bad weather conditions as sufficient to indicate a store would have been on notice of wetness on the floor. See Luzier v. Sears Roebuck & Co., No. 08-CV-11635, 2009 WL 2960630, at *4 (E.D. Mich. Sept. 11, 2009) (employee caused the spill and therefore store was on notice regarding the condition); Lapczynski v. Wal-Mart Stores Inc., No. 17-CV-10499, 2018 WL 1898462, at *5 (E.D. Mich. Apr. 20, 2018) (severity of winter weather conditions created genuine issue of fact as to whether store had notice of water on floor). By contrast, “sheer speculation” as to what caused a condition on the land, without any supporting evidence, is not enough to create a genuine issue of material fact regarding notice. Gresko v. Southland Joint Venture, 859 F.Supp. 1089, 1093 (E.D. Mich. 1994) (no material dispute regarding notice because plaintiff's theory of causation was “unsupported by the evidence”).

Defendant's primary argument regarding notice is that in their deposition testimonies, neither Plaintiff nor her husband were able to offer much description of the fluid on the floor that purportedly caused her fall. ECF No. 11, PageID.81-85. There is also no testimony regarding mop buckets, signs, or an employee stating that the floor had been cleaned. Defendant therefore claims there is no evidence in the record indicating the presence of a condition as to which it should have been on notice. Plaintiff testified that the floor was wet, and maintains her theory that the water on the floor was the result of mopping, meaning the store should have been on notice to its presence (because only a store employee would have mopped). ECF No. 13, PageID.318-22.

Although Plaintiff overstates her position-there is no evidence in the record that definitively points to mopping as the cause of liquid on the floor-so does Defendant. Regardless of whether the floor was mopped or the liquid came to be there in some other way, Plaintiff crucially testifies that the floor was “wet all over” and that the “whole floor was wet.” V. Collins Dep. 33, 47, 54-55, ECF No. 12-1, PageID.158, 172, 179-80. She testifies that her arm and hand were all wet after coming into contact with the floor during her fall. Id. at 61:11-13, PageID.186. Her husband also testified to noticing that “the floor was wet” when he came to the aisle where she fell. R. Collins Dep. 13:21, ECF No. 12-2, PageID.270. It is correct, as Defendant points out, that neither Plaintiff nor her husband could describe the liquid's smell or color, or even definitely say that it was water. But a jury that believed Plaintiff's and her husband's testimony could find that the presence of liquid on the floor in such quantity as to lead to Plaintiff's descriptions-the “whole floor” being wet “all over” and her wet arm and hand-is a sufficiently considerable condition that the store should have been on notice of it. Cf. Lowrey, 890 N.W.2d at 350-51 (finding summary judgment for defendant appropriate because plaintiff presented “no evidence concerning the character of the condition was presented”). The “character” of the liquid in this case is the key descriptor; Plaintiff said she saw it all over the floor and her husband said he saw it as well. Because Plaintiff has raised a genuine issue of material fact regarding notice, the claim cannot be denied on that ground.

ii. Whether the hazard was “open and obvious” is also a jury question

Even if a plaintiff can make a prima facie showing of a premises liability claim, if the risk of harm exists only because the invitee does not discover it or realize it, and they should have, the “open and obvious” doctrine prevents the invitor from facing liability. Dangers are “open and obvious” if they “are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them.” Riddle v. McLouth Steel Prod. Corp., 485 N.W.2d 676, 681 (Mich. 1992).

The test for whether a condition on a premises presents an “open and obvious” risk of injury is an objective one: “whether it is reasonable to expect that an average person with ordinary intelligence would have discovered it upon casual inspection.”...