Dybek v. Fedex Trade Networks Transp. & Brokerage, Inc.

997 F.Supp.2d 767

Jozef DYBEK and Irena Dybek, Plaintiffs,

v.FEDEX TRADE NETWORKS TRANSPORT & BROKERAGE, INC., Defendant.

Case No. 13–10627.

United States District Court,

E.D. Michigan,

Southern Division.

Feb. 18, 2014.

George T. Fishback, Sachs Waldman, Detroit, MI, for Plaintiffs.

John L. Weston, Secrest, Wardle, Farmington Hills, MI, for Defendant.

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

DAVID M. LAWSON, District Judge.

Plaintiffs Jozef Dybek and his wife Irena, Canadian citizens, filed this slip-and-fall case against FedEx corporation, an American company, alleging negligence under a premises liability theory and nuisance. The accident occurred near the American–Canadian border crossing in Port Huron, Michigan. Michigan law governs. Defendant FedEx filed a motion for summary judgment contending that the snow-and-ice hazzard described by the plaintiff was open and obvious, and therefore the defendant had no duty to warn or make the premises safe. Dybek responded that special aspects of the hazzard made it effectively unavoidable, and therefore an exception to Michigan's open-and-obvious rule applies here. FedEx replies that the facts do not support that exception. The Court heard oral argument on the motion on February 13, 2014. The Court now finds that the plaintiffs have abandoned their nuisance claim, but fact questions that remain on the negligence claim preclude summary judgment.

According to the parties' submissions, plaintiffs Jozef Dybek and Irena Dybek are residents of Caledon, Ontario, Canada. Defendant FedEx Trade Networks Transport & Brokerage, Inc. is a corporation organized under New York law. On February 1, 2011, Mr. Dybek was employed by Concord Transportation as a truck driver and was assigned to deliver freight from Canada to Chicago. The plaintiff drove a tractor/trailer from Ontario, Canada across the Blue Water Bridge that connects Sarnia, Ontario with Port Huron, Michigan. After crossing the border, United States Customs' officials informed Mr. Dybek that part of the freight did not clear customs because he did not have the appropriate paperwork. Officials told Mr. Dybek that he was required to offload the part of the freight that did not have proper paperwork. In February 2011, Concord had a business relationship with FedEx that allowed Concord drivers to unload their cargo at a FedEx warehouse in nearby Kimball Township if the cargo did not clear customs. The arrangement enabled drivers to store the non-cleared freight in a secure warehouse until U.S. Customs officials received and processed the necessary paperwork. If the U.S. Customs officials allowed that accommodation, the driver was legally required to bring the non-cleared freight to the specified location.

After a portion of Mr. Dybek's freight did not clear U.S. Customs, a Concord dispatcher notified FedEx that a portion of Mr. Dybek's freight did not clear customs and arranged for Mr. Dybek to deliver the non-cleared freight to FedEx's warehouse in Kimball Township. Upon arrival at the FedEx facility, Mr. Dybek parked and walked to the FedEx shipping office with the paperwork from U.S. Customs. A FedEx employee told him to use the loading dock bay to unload the freight. Although the path to the shipping office door was clear, Mr. Dybek observed that the entire loading dock in the back of the warehouse was covered with snow and ice. FedEx employees had not plowed or shoveled the loading dock area at all.

After Mr. Dybek backed his truck to the loading dock, a FedEx employee removed the uncleared freight while Mr. Dybek waited in the cab. Mr. Dybek then pulled away about ten feet from the dock, got out of the cab, and walked to the back of the trailer to close and seal the trailer's rear doors. After closing one door, Mr. Dybek slipped and fell while trying to close the second door. He suffered serious injuries as a result of the fall, including a skull fracture and subdural hematoma.

The plaintiffs filed a complaint in this Court on February 14, 2013, amended two weeks later, alleging negligence based on premises liability and nuisance. On March 21, 2013, the defendant filed a motion for summary judgment, which it withdrew on April 24, 2013. After discovery was completed, the defendant renewed its motion for summary judgment on October 29, 2013. The plaintiffs answered the motion and the defendant filed a reply.

I.

Summary judgment is appropriate “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). Under Rule 56—the summary judgment rule—the party bringing the summary judgment motion has the initial burden of informing the court of the basis for its motion and identifying portions of the record that demonstrate the absence of a genuine dispute over material facts. Mt. Lebanon Pers. Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir.2002). If the party opposing the motion contends facts are in dispute, he may not “rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact” but must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989). A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing “evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Court then “must construe the evidence and draw all reasonable inferences in favor of the nonmoving party.” Hawkins v. Anheuser–Busch Inc., 517 F.3d 321, 332 (6th Cir.2008). “Summary judgment ... is appropriate only where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Hunt v. Cromartie, 526 U.S. 541, 549, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson, 477 U.S. at 242, 106 S.Ct. 2505).

This case is before the Court on the basis of diversity jurisdiction under 28 U.S.C. § 1332, and the plaintiffs' claims are based entirely on state law. Therefore, the Court must apply the law of the forum state's highest court. Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). All agree that Michigan law applies to this dispute. If the state's highest court has not decided an issue, then “the federal court must ascertain the state law from ‘all relevant data,’ ” Garden City Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1130 (6th Cir.1995) (quoting Bailey v. V. & O Press Co., 770 F.2d 601, 604 (6th Cir.1985)), which can include “the state's intermediate appellate court decisions, as well as the state supreme court's relevant dicta,” Ososki v. St. Paul Surplus Lines, 156 F.Supp.2d 669, 674 (E.D.Mich.2001) (internal quotation marks and citation omitted).

Because winters in Michigan can be severe, and weather-related accidents are common, the state courts have devoted considerable attention to the duties of land owners to make their property safe for others, especially when ice and snow abound. There is, therefore, plenty of state authority to consult, which can be both a blessing and a curse: a blessing if one merely seeks a source of legal precedent; a curse if one attempts to discern some measure of consistency. In this case, the parties cite many of the same authorities to support their competing arguments, and they draw opposite conclusions from the language in the cases.

A.

To begin, the defendant argues that the negligence count of the plaintiffs' first amended complaint (count I) should be dismissed because the conditions at FedEx's warehouse were open and obvious and because snow and ice do not give rise to a uniquely high likelihood of harm or severity of harm. The defendant also argues that the Court should dismiss the nuisance count (count II) because the plaintiff did not plead a cogent public or private nuisance claim. The defendant maintains that the plaintiffs have alleged a nuisance in order to try to overcome the barriers to their premises liability claim, namely, the open and obvious doctrine.

The plaintiffs have vigorously opposed the attack on their negligence claim, but they ignored the argument addressed to the nuisance count. “[A] plaintiff is deemed to have abandoned a claim when a plaintiff fails to address it in response to a motion for summary judgment.” Brown v. VHS of Michigan, Inc., 545 Fed.Appx. 368, 372, 13–1054, 2013 WL 5583818, at *3 (6th Cir. Oct. 10, 2013) (citing cases). Because the plaintiffs have not contested summary judgment on their nuisance claim, either in their motion papers or at oral argument, the Court finds that they have abandoned that claim, and the defendant is entitled to summary judgment of dismissal of count II of the amended complaint.

B.

The principal dispute concerns the premises liability claim. In order to establish a prima facie case of negligence under Michigan premises liability law, a plaintiff must prove: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages. Schultz v. Consumers Power Co., 443 Mich. 445, 449, 506 N.W.2d 175 (1993). The duty a landowner owes an individual that enters her land depends upon whether that individual is a trespasser, licensee, or invitee. Stitt v. Holland Abundant Life Fellowship, 462 Mich. 591, 596–97, 614 N.W.2d 88, 91–92 (2000).

Neither party disputes that Mr. Dybek was an invitee on February 1, 2011 when he fell at the FedEx warehouse facility. “An invitee is one who enters the land of another for a commercial purpose on an invitation that carries with it an implication that reasonable care has been used to prepare the premises and to make them safe.” O'Donnell v. Garasic, 259...