Evola v. Henry Ford Macomb Hosp.

Margaret Evola, Plaintiff, v. Henry Ford Macomb Hospital, Defendant.

Civil Case No. 19-13537

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

November 20, 2020

Sean F. Cox United States District Court Judge

OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

This is a slip-and-fall case. Plaintiff, Margaret Evola ("Plaintiff") alleges that she sustained injuries when she slipped and fell on a wet floor at Defendant Henry Ford Macomb Hospital ("Defendant"). Defendant maintains that the condition was open and obvious with no special aspects.

This matter is before the Court on Defendant's Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. (ECF No. 16). The motion has been fully briefed by the parties, and the Court heard oral argument on the motion on November 5, 2020. For the reasons set forth below, the Court shall GRANT Defendant's motion.

BACKGROUND

On October 20, 2018, Plaintiff was visiting her mother at Defendant's hospital accompanied by her service dog. (Pl. Dep. Attached to Def's Br. as Ex. B at p. 13). Shortly after arriving at her mother's room, Plaintiff's service dog needed to go to the bathroom. (Pl. Dep. at p. 14). Plaintiff left her mother's room to take the dog outside around 10 p.m. (Pl. Dep. at p. 14). She was outside for approximately 10 minutes to smoke a cigarette and let the dog relieve himself. (Pl. Dep. at p. 16). She returned inside through the same doors she went out, but she could not remember the way back to her mother's room. (Pl. Dep. at p. 17). However, she knew her mother's room was on the second floor, so she went up an elevator and got off on the second floor. (Pl. Dep. at p. 18). Once off the elevator, she turned right and walked about ten paces, carrying her service dog. (Pl. Dep. at p. 19). Not seeing any familiar landmarks, Plaintiff then turned around and walked toward the left end of the hallway passing the elevator she had just exited. (Pl. Dep. at 29).

After Plaintiff had turned around and was walking to the left of the elevator, she saw an environmental services worker place a mop in her bucket at the end of the hall. (Pl. Dep. at p. 19, 25). From this, she concluded that the floor had just been mopped, but decided to continue walking in that direction:

Q. Okay. So you saw her at the end of the hall, you saw her with the mop, and you gathered or concluded that the floor had just been mopped?

A. Yes.

Q. And you elected to continue walking down that hall?

A. Yes.

(Pl. Dep. at 26-27). Plaintiff testified that she did not notice any water, moisture, or pooling on the floor, but she testified she "knew that the floor was wet where [she] walked [because her] shoes were sticking to it" and were making a "spongy, squeaky noise." (Pl. Dep. at 26-28). She testified that the floor was "quite shiny," but that the floors in the whole hospital were also shiny. (Pl. Dep. at 27). She also testified that she was "trying to walk very carefully knowing that EVShad just mopped the floor." (Pl. Dep. at 26). Despite Plaintiff's knowledge that the floor was wet, she continued to walk down the hallway about 20 steps before she fell. (Pl. Dep. at 25, 29).

Plaintiff testified that she fell because her left leg got "stuck" from the rubber on her shoe sticking to the wet floor. (Pl. Dep. at 30). She fell forward on her left knee. (Pl. Dep. at 31). Then she fell to her right, landing on her right shoulder and letting go of her service dog. (Pl. Dep. at 32). Once the environmental services worker realized that Plaintiff had fallen, she came over to assist Plaintiff. (Pl. Dep. at 25). However, Plaintiff told the environmental services worker to leave her alone. (Pl. Dep. at 32). The environmental services worker left her, and Plaintiff was alone on the ground for approximately 10 minutes. (Pl. Dep at 33, 35). Then Plaintiff scooted a bit to the wall and noticed that the floor was wet. (Pl. Dep. at 38). Then she looked up and saw a sign that said operating room. (Pl. Dep. at 32). Then she started pounding on the wall and saying, "somebody help me, somebody help me, I broke my leg." (Pl. Dep. at 32). Then three OR nurses came, put her on a gurney, and took her to the Emergency Room where she received medical treatment for her injuries. (Pl. Dep. at 32, 49-51).

On November 29, 2019, Plaintiff filed her Complaint against Defendant in this Court based on the diversity of citizenship of the parties. (ECF No. 1). In her Complaint, Plaintiff alleges that Defendant breached its duty to invitees by allowing hazardous floor conditions to exist, and by failing to warn Plaintiff of the condition." (Compl. at 3). Plaintiff alleges she suffered personal injuries, including comminuted patellar fracture requiring surgery, torn rotator cuff requiring surgery and related injuries. (Compl. at 5). She also alleges that as a result of those injures, she experienced pain and suffering, humiliation, disability, mental anguish, embarrassment, wage loss and has incurred substantial medical and hospital bills for her care and treatment. (Compl. at 5).

Defendant filed its Motion for Summary Judgment on July 25, 2020. (ECF No. 16). In its motion, Defendant argues that it is entitled to judgment in its favor because the condition was open and obvious with no special aspects. Plaintiff responds (ECF No. 20) that the condition was not open and obvious, and it was effectively unavoidable constituting a special aspect obviating the open and obvious defense. Defendant has filed a reply in support of its motion. (ECF No. 21).

STANDARDS OF REVIEW

Summary judgment will be granted where there exists no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). No genuine issue of material fact exists where "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elect. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "The mere existence of a scintilla of evidence in support of the [non-moving party]'s position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252. The Court "must view the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the non-moving party." Skousen v. Brighton High Sch., 305 F.3d 520, 526 (6th Cir. 2002).

ANALYSIS

Because this Court sits in diversity, the substantive law of Michigan governs the claims of in this case. Armisted v. State Farm Mut. Auto. Ins. Co., 675 F.3d 989, 995 (6th Cir. 2012).

In Michigan, premises liability flows from the ownership, possession, or control of the land at issue. Laier v. Kitchen, 266 Mich.App. 482, 493, 702 N.W.2d 199 (2005). To succeed in a premises liability action, a plaintiff must prove: 1) that the defendant owed the plaintiff a duty; 2) that the defendant breached that duty; 3) that the defendant's breach caused the plaintiff'sharm, and 4) that the plaintiff suffered damages. Hunley v. DuPont Automotive, 341 F.3d 491, 496 (6th Cir. 2003).

For the purposes of premises liability, the landowner's duty depends on the status of the injured party. Taylor v. Laban, 241 Mich.App. 449, 425, 616 N.W.2d 229 (2000), citing Doran v. Combs, 135 Mich.App. 492, 495, 354 N.W.2d 804 (1984). Michigan utilizes three categories: invitees, licensees, and trespassers. Kessler, 448 F.3d at 336-37. An invitee is an individual who enters the land of another for a commercial purpose. Cote v. Lowe's Home Ctr., Inc., 896 F.Supp.2d 637, 644 (E.D.Mich. 2012).

The parties agree that Plaintiff was an invitee on the Defendant's premises at the time of her fall.

A. Is there a genuine issue of material fact as to whether the water spill was open and obvious?

Defendant argues that the wet floor was open and obvious, and therefore Defendant owed Plaintiff no duty to protect her from, or warn her of, the hazard.

The open and obvious doctrine is "an integral part of the definition of [the] duty that an invitor owes to its invitee." Matteson v. Northwest Airlines, Inc., 495 Fed. App'x 689, 691 (6th Cir. 2012). The premises owner's duty to invitees does not include a duty to protect them from "open and obvious" dangers. Matteson, 495 Fed. App'x at 691(quoting Lugo,464 Mich. at 516, 629 N.W.2d 384). "Put simply, [the open and obvious doctrine] means that an invitor has no duty to protect its invitee from an open and obvious danger, unless that danger has special aspects that make it particularly likely to cause harm." Id.

A hazard is open and obvious if "an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon causal inspection." Id. The Courtshould consider whether "it is reasonable to expect that the invitee would discover the danger[.]" Novotney v. Burger King Corp., 198 Mich. App. 470, 475, 499 N.W.2d 379 (1993). "If reasonable minds could differ on the question of whether a condition is open and obvious, the decision must be left to the jury." Mousa v. WalMart Stores E., L.P., 2013 WL 5352949, at 5 (E.D. Mich. 2013), citing Vella v. Hyatt Corp., 166 F.Supp.2d 1193, 1198 (E.D. Mich. 2001).

Plaintiff cites many cases which have rejected the application of the open and obvious defense regarding hazards associated with clear liquids under Michigan law. However, unlike the case at hand, none of the plaintiffs in those cases testified that they were aware of the hazardous condition at the time they fell. Here, Plaintiff knew the floor was wet from her shoes sticking and making sounds. (Pl. Dep. at 26-28). Additionally, Plaintiff saw the environmental services worker place her mop back in the bucket at the end of the hallway.¹ (Pl. Dep. at 26). She testified that "I [knew] the floor was wet where I walked [was because] my shoes were sticking to it." (Pl. Dep. at 26). An excerpt from her deposition further demonstrates her knowledge of the wet floor before she ...