Opinion
Case No. 4:02-cv-60
June 9, 2003
OPINION
This is a negligence action for premises liability against the owners and the lessee of property located at 123 South Westnedge Avenue, Kalamazoo, Michigan. Plaintiff alleges that on May 22, 2000, she tripped and fell on the remnant of a sign post located in the parking lot of the premises. The property is owned by the partnership of William E. Bowser, Alfred J. Gemrich, and Robert J. Moser. The United States leased the premises for use as a United States Bankruptcy Court. Plaintiff filed this lawsuit on April 11, 2002, asserting negligence claims against the owners and against the United States pursuant to the Federal Tort Claims Act (FTCA). On August 19, 2002, pursuant to 28 U.S.C. § 636 (c) and Rule 73 of the Federal Rules of Civil Procedure, the parties voluntarily consented to have a United States Magistrate Judge conduct all further proceedings in this case, including entry of final judgment. (docket #'s 18, 19).
The matter is before the court on the motion for summary judgment of defendant Bowser, Gemrich and Moser, in which the United States has joined. (docket #'s 47, 55). Defendants argue that they had no duty to warn plaintiff because the post stub constituted an "open and obvious" hazard under state law. On June 2, 2003, the court conducted a hearing on defendants' motions. Upon review, defendants' motions for summary judgment will be granted.
Defendant Bowser, Gemrich and Moser filed a separate motion for summary judgment (docket #30) asserting that they had no control of the parking lot sign and therefore were not responsible for the hazardous condition. This motion is rendered moot by the court's resolution of this joint motion by all defendants.
Applicable Standard
Summary judgment is appropriate when the record reveals that there are no issues as to any material fact in dispute and the moving party is entitled to judgment as a matter of law. FED. R. Civ. P. 56(c); Hiney Printing Co. v. Brantner, 243 F.3d 956, 959 (6th Cir. 2001); Redding v. St. Edward, 241 F.3d 530, 532 (6th Cir. 2001); Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1009 (6th Cir. 1997) ( en banc). The standard for determining whether summary judgment is appropriate is whether "the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986); see Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039, 1043 (6th Cir. 2001); Strouss v. Michigan Dep't of Corrections, 250 F.3d 336, 341 (6th Cir. 2001); Burnett v. Tyco Corp., 203 F.3d 980, 982 (6th Cir.), cert. denied, 531 U.S. 928 (2000).The court must consider all pleadings, depositions, affidavits, and admissions on file, and draw all justifiable inferences in favor of the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Wathen v. General Elec. Co., 115 F.3d 400, 403 (6th Cir. 1997). The party moving for summary judgment bears the initial burden of pointing out to the district court that there is an absence of evidence to support the nonmoving party's case, but need not support its motion with affidavits or other materials "negating" the opponent's claim. Moore v. Philip Morris Companies, Inc., 8 F.3d 335, 339 (6th Cir. 1993). Once the movant shows that "there is an absence of evidence to support the nonmoving party's case," the non-moving party has the burden of coming forward with evidence raising a triable issue of fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
To sustain this burden, plaintiff may not rest on the mere allegations of her pleadings. FED. R. Civ. P. 56(e); Campbell v. Grand Trunk Western R.R., 238 F.3d 772, 775 (6th Cir. 2001); Copeland v. Machulis, 57 F.3d 476, 479 (6th Cir. 1995). A party opposing a motion for summary judgment has the burden to come forth with requisite proof to support his legal claim, particularly where she has had an opportunity to conduct discovery. See Cardamone v. Cohen, 241 F.3d 520, 524 (6th Cir. 2001); Noble v. Chrysler Motors Corp., 32 F.3d 997, 999 (6th Cir. 1994); Street v. J. C. Bradford Co., 886 F.2d at 1478-81. In so doing, plaintiff must set forth specific facts showing that there is a genuine issue for trial. FED. R. Civ. P. 56(e); see Mounts v. Grand Trunk Western R.R., 198 F.3d 578, 580 (6th Cir. 2000); Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996); Brennan v. Township of Northville, 78 F.3d 1152, 1156 (6th Cir. 1996).
Facts
The following facts are beyond genuine issue and are provided by the plaintiffs deposition testimony and photographs she took on the day of the accident. (docket #47, Exs. A B). On the morning of May 22, 2000, plaintiff arrived at the bankruptcy court's parking lot at approximately 8:45 a.m. Plaintiff had planned to accompany her daughter to her daughter's 9:00 a.m. appointment in bankruptcy court. It was not raining that morning. Plaintiff described the weather as "unexceptional." Plaintiff parked her car, a Lincoln Mark XIII, in the last parking space at the end of the paved parking lot. Plaintiff left the car. She stepped up onto the sidewalk, walked past the post, but did not see it. Plaintiff walked on the sidewalk up to the courthouse doors. Plaintiff found that the doors were locked. Plaintiff visited with the other people waiting near the doors. Plaintiff recalled that she had left something in her car and she turned back to retrieve it. Before reaching her car in the last parking spot, plaintiff stepped down off the sidewalk, stubbed her right toe on the post remnant, and fell. Plaintiff testified that she sustained a right knee injury which required arthroscopic surgery. Plaintiff had a history of prior right knee surgery in 1999, but testified that she had not experienced any lingering post-surgical problems after that procedure. After she fell, plaintiff accompanied her daughter to the daughter's bankruptcy court hearing. An unidentified person, presumed by plaintiff to have been an attorney, recommended that plaintiff take pictures of the parking area and seek medical attention. When the bankruptcy proceedings had concluded, plaintiff sought medical attention from Dr. Halpern. After that, plaintiff went to a Meijer store and purchased a camera. She came back to the bankruptcy court and took pictures.
Plaintiff testified that the post stub was approximately eight to ten inches tall. It was green and rust in color. The parking lot asphalt was black. Plaintiff estimated that the sidewalk's curb was normal size, approximately six or seven inches. She estimated that the post stub was approximately three or four inches away from the sidewalk and bent towards the sidewalk. Plaintiff acknowledged that she did not look when she stepped down from the sidewalk. Plaintiff did not know if she would have seen the post stub if she had looked down. The photographs show that the post stub exceeded the height of the sidewalk. It was located in an area a defined by a concrete wheel stop on one side and the sidewalk on the other. The post stub was indeed green and rust colored and contrasted against the black asphalt.
Discussion
Plaintiff has sued the United States pursuant to the Federal Tort Claims Act (FTCA). "To maintain an action against the United States in federal court, a plaintiff must identify a statute that confers subject matter jurisdiction on the district court and a federal law that waives the sovereign immunity of the United States to the cause of action. The FTCA provides both a jurisdictional grant and a waiver of sovereign immunity: 28 U.S.C. § 1346 (b)(1) creates federal jurisdiction to decide cases against the Unites States `for injury or loss of property, personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance of the law of the place where the act or omission occurred'; 28 U.S.C. § 2674, in turn, waives the sovereign immunity of the Unites States, making it liable in tort `in the same manner and to the same extent as a private individual under like circumstances.'" Clark v. United States, 326 F.3d 911, 912 (7th Cir. 2003). As its name suggests, the FTCA applies only state-law torts, and violation of a federal statutory duty cannot form the basis of a FTCA claim. Id. at 914.
The liability of both the landowner and the United States as lessee will be governed by Michigan law. Michigan law provides for the tort of negligence against the possessor of land by a party injured on the land. In order to prove a negligence claim in Michigan the plaintiff must show (1) that the defendant owed a legal duty to plaintiff; (2) that the defendant breached the legal duty owed to plaintiff; (3) that the defendant's breach of duty was a proximate cause of the damages suffered by plaintiff; and (4) that the plaintiff suffered damages. Riddle v. McLouth Steel Prods. Corp., 485 N.W.2d 676, 681 (Mich. 1992). The threshold inquiry in Michigan in establishing a premises liability action is whether a defendant owed a duty to plaintiff. Duty is a question of law for the court. See Riddle v. McLouth Steel Prods. Corp., 485 N.W.2d at 680; see also Cudney v. Sears, Roebuck Co., No. 00-1305, 2001 WL 1355300, at *2 (6th Cir. Oct. 26, 2001).
In Michigan, the duty that an owner or occupier of land owes to a visitor depends on the status of the visitor at the time of her injury. See Hampton v. Waste Management of Michigan, 601 N.W.2d 172, 175 (Mich.Ct.App. 1999); see also Cassani v. Meijer, Inc., No. 240486, 2003 WL 1365919, at *2 (Mich.Ct.App. Mar. 18, 2003). "Historically, Michigan has recognized three common-law categories of persons who enter upon the land or premises of another: (1) trespasser, (2) licensee, or (3) invitee." Stitt v. Holland Abundant Life Fellowship, 614 N.W.2d 88, 91 (Mich. 2000). "Michigan has not abandoned these common-law classifications." Id. "Each of these categories corresponds to a different standard of care that is owed to those injured on the owner's premises." Id. None of the parties contends that plaintiff was a trespasser. Under state law, plaintiff was either an invitee or a licensee, the former being entitled to a higher duty of care. "A licensee is a person who is privileged to enter the land of another by virtue of the possessor's consent." Stitt, 614 N.W.2d at 91; see also James v. Alberts, 626 N.W.2d 158, 168 (Mich. 2001). Such consent may be express or implied. See Pippin v. Atallah, 626 N.W.2d 911, 914 (Mich.Ct.App. 2001). The possessor of land owes no duty of inspection or affirmative care to make the premises safe for the licensee's visit. The possessor owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, but only to the extent that the licensee does not know or have reason to know of the dangers involved. See Pippin v. Atallah, 626 N.W.2d at 914-15; Dooley v. Northwest Airlines, Inc., No. 01-cv-74132-DT, 2002 WL 31235765, at *5 (E.D. Mich. Sept. 13, 2002). The possessor of land "has no duty to give warning of dangers that are open and obvious, inasmuch as such dangers cone with their own warning. Where there is a duty to a visitor to make a condition safe (i.e., the duty to an invitee), potential liability will remain for harm from conditions that are still unreasonably dangerous despite their open and obvious nature. However, with regard to licensees, no liability arises if the licensee knows or has reason to know of the danger, or if the possessor should expect that the licensee will discover the danger. Hence, a possessor of land has no obligation to take any steps to safeguard licensees from conditions that are open and obvious." Pippen, 626 N.W.2d at 914-15 (citations omitted).
A trespasser is an individual who enters upon another's land, without the landowner's consent. The landowner owes no duty to the trespasser except to refrain from injuring her by "wilful and wanton" misconduct. See James v. Alberts, 626 N.W.2d 158, 162 (Mich. 2001); Stitt v. Holland Abundant Life Fellowship, 614 N.W.2d at 91.
"An `invitee' is a person who enters upon the land of another upon an invitation which carries with it an implied representation, assurance, or understanding that reasonable care has been used to prepare the premises, and make it safe for the invitees reception." 614 N.W.2d at 92. "The landowner has a duty of care, not only to warn the invitee of known dangers, but the additional obligation to make the premises safe, which requires the landowner to inspect the premises and, depending on the circumstances, make any necessary repairs or warn of any discovered hazards. Thus, an invitee is entitled to the highest level of protection under premises liability law." Stitt, 614 N.W.2d at 92.
In Stitt, the Michigan Supreme Court held that invitee status was only afforded to those visiting a premises held open for commercial purposes and pecuniary gain.
In harmonizing our cases, we conclude that the imposition of additional expense and effort by the landowner, requiring the landowner to inspect the premises and make them safe for visitors, must be directly tied to the owner's commercial business interests. It is the owner's desire to foster a commercial advantage by inviting persons to visit the premises that justifies imposition of a higher duty. In short, we conclude that the prospect of pecuniary gain is a sort of quid pro quo for the higher duty of care owed to invitees. Thus, we hold that the owner's reason for inviting persons onto the premises is the primary consideration when determining the visitor's status: In order to establish invitee status, a plaintiff must show that the premises were held open for a commercial purpose.614 N.W.2d at 95 (emphasis in original). In reaching this decision requiring that the premises be held open for a commercial purpose, the Michigan Supreme Court recognized that Michigan law would be contrary to that of a majority of jurisdictions that had adopted the category of "public invitee" created by § 332 of the Restatement of Torts. The Michigan Supreme Court went on to hold that church visitors were licensees.
Section 332 of the Restatement of Torts states as follows:
(1) An invitee is either a public invitee or a business visitor.
(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of land.
Plaintiff argues that a genuine issue of material fact exists as to whether the United States Bankruptcy Court is held open for commercial purposes (Plaintiff's Brief at 2-3, docket #53) and contends that the Michigan Supreme Court's Stitt decision should be narrowly confined to the question of status of church attendees. ( Id. at 3). Neither argument withstands scrutiny. Duty is a question of law for the court. As shown by the paragraph quoted above, the possessor holding the premises open for pecuniary gain is the quid pro quo required under Michigan law before a visitor can obtain invitee status. Under the test established by the Michigan Supreme Court in Stitt, a visitor to the United States Bankruptcy Court must be classified as a licensee rather than an invitee. The United States Bankruptcy Court is a government entity which exists and is held open to adjudicate controversies within its statutory jurisdiction. It does not exist and is not held open for the purpose of monetary gain. Furthermore, the Michigan Supreme Court's Stitt decision went out of its way to expressly reject the Restatement's "public invitee" classification. It is apparent that the Michigan Supreme Court intended to establish a bright line "pecuniary gain" test applicable to future cases. The Stitt decision simply cannot be read as narrowly as plaintiff suggests. It is undisputed that plaintiff was on the premises for the purpose of accompanying her daughter to the daughter's appointment in bankruptcy court. Under Michigan law, plaintiff was a licensee.
Although plaintiff was clearly a licensee under Michigan law, this finding is not dispositive under the facts of this case, because a possessor of land does not owe a duty to either licensees or invitees to warn against open and obvious dangers. Consequently, if the sign post stub was indeed open and obvious, plaintiff cannot prevail despite her status. The open and obvious doctrine is not an "exception" to the general duty owed, rather it is "an integral part of the definition of that duty." Lugo v. Ameritech Corp., 629 N.W.2d 384, 386 (Mich. 2001). Duty is a question of law for the court. See Riddle v. McLouth Steel Prods. Corp., 485 N.W.2d at 680; Cudney v. Sears, Roebuck Co., 2001 WL 1355300, at *2. The determination of whether a condition poses an open and obvious danger is governed by an objective standard: "Would an average user with ordinary intelligence have been able to discover the danger and the risk presented upon casual inspection?" Novotney v. Burger King Corp. (On Remand), 499 N.W.2d 379, 381 (Mich.Ct.App. 1993); see Wellman v. Wal-Mart Stores, Inc., 192 F. Supp.2d 767, 770 (W.D. Mich. 2002). Comparative negligence is not a component of the duty inquiry. See Abbott v. Estate of Abbott, No 234846, 2003 WL 1861011, at *3 (Mich.Ct.App. Apr. 8, 2003). The issue is not whether plaintiff should have known a condition was hazardous, but whether a reasonable person would foresee the danger. See Joyce v. Rubin, 642 N.W.2d 360 (Mich.Ct.App. 2002); Hughs v. PMG Building, Inc., 574 N.W.2d 691, 696 (Mich.Ct.App. 1997). Plaintiff's deposition testimony regarding the degree of care she exercised on the morning in question, relevant for purposes of comparative negligence, does not enter into the question of duty under the open and obvious danger doctrine. Plaintiff's deposition testimony does provide some objective information concerning the risk, such as the time of day, weather, color, height and location of the post stub. The photographs taken on the day of the accident constitute objective evidence. The photographs show that the post stub exceeded the height of the sidewalk. It was located in an area a defined by a concrete wheel stop on one side and the sidewalk on the other. It was approximately three or four inches away from the sidewalk and bent towards the sidewalk. The post stub was approximately eight to ten inches high. It was green and rust colored and contrasted against the black asphalt of the parking lot.
Objectively, an average user with ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection. The post was in an open area and not concealed. Its height exceeded the height of the sidewalk. The stub's colors contrasted against the black asphalt. The weather was dry. The stub was not obscured by snow or any other weather related condition that would have prevented an average person from seeing it. Plaintiff did not present evidence that the color, size, or location of the post remnant made it unusually difficult to see or that it was such an unusual obstacle for a Michigan parking lot in the spring that it would not otherwise be anticipated. Cf. Pippin v. Atallah, 626 N.W.2d at 915 (finding an issue for trial where an affidavit from an expert in human perception stated that chains across the entrance to a parking lot were "inherently difficult to see" because they were silver, relatively small width, and stretched across an open setting where one's visual attention would be necessarily fixed on objects in the distance and that the chains were not likely to be perceived in such an unexpected location).
The leading Michigan case regarding open and obvious dangers in a parking lot is Lugo v. Ameritech Corporation, 629 N.W.2d 384 (Mich. 2000). In Lugo, the state Supreme Court held that a "common pothole" in a parking lot was an open and obvious danger and that defendant was entitled to summary judgment. The Lugo court relied on its previous decision in Maurer v. Oakland County Parks Recreation Dept., 537 N.W.2d 185 (Mich. 1995), which held that an unmarked cement step outside a rest-room area was an open and obvious danger. 629 N.W.2d at 388. On the basis of this line of authority, Michigan courts and federal courts applying state law have regularly granted summary disposition or summary judgment in favor of the defendant where the hazard is so obvious that a reasonable person should be expected to observe it. See Cudney v. Sears, Roebuck Co., 2001 WL 1355300, at *4 (no duty to either protect or warn plaintiff as clothes racks in department stores are standard and an average customer could have discovered the existence of the rack upon casual inspection); Wellman v. Wal-Mart, 192 F. Supp.2d at 770-71 (defendant entitled to summary judgment because a steel chain extending into a store aisle, although not in "stark contrast," was "plainly visible against an off-white floor"); see also Lauff v. Wal-Mart Stores, Inc., 1:01-cv-777 (W.D. Mich. Oct. 2, 2002) (docket 448, Ex. C) (summary judgment was appropriate because the risk posed by water and "gook" on restroom floor was open and obvious); Cottom v. USA Cycling, Inc., 2003 WL 1365919, at *3 (W.D. Mich. Apr. 11, 2002) (defendant entitled to summary judgment because risk of unpaved track was open and obvious); Page v. Metro Skate, Inc., No. 238755, 2003 WL 1861483 (Mich.Ct.App. Apr. 10, 2003) (affirming summary disposition for defendant because roller skate on the floor that plaintiff tripped over and broke her ankle was open and obvious); Hickey v. Adler's Foodtown, Inc., No. 236036, 2003 WL 1689620 (Mich.Ct.App. Mar. 27, 2003) (visible puddle in store aisle was "open and obvious" danger); Cassani v. Meijer, Inc., No. 240486, 2003 WL 1365919 (Mich.Ct.App. Mar. 18, 2003) (affirming summary disposition in favor of defendant where he was hit by automatic door when reaching for magazine from magazine rack because risk from automatic door was open and obvious); Young v. Borman's, Inc., No. 236443, 2003 WL 1343286 (Mich.Ct.App. Mar. 11, 2003) (affirming summary disposition in favor of defendant because "debris" in a parking lot spot was open and obvious).
At the hearing on defendants' motions, plaintiff produced a copy of the unpublished decision of the Michigan Court of Appeals in Herteg v. Somerset Collection GP, Inc., No. 227936, 2002 WL 31105000 (Mich.Ct.App. Sept. 20, 2002), and cited the case in support of plaintiff's argument that whether the risk posed by the post stub was open and obvious should be considered an issue of fact for trial. Herteg involved the claim of a "mall walker" injured when she fell in a puddle of water that had accumulated in an access area located in the mall In classifying Ms. Herteg as an "invitee" to whom the highest duty of care was owed, the Michigan Court of Appeals expressly rejected an argument that the Michigan Supreme Court's decision in Stitt should be narrowly construed. Id. at *2-4. The Court of Appeals held that "a mall walker was not entitled to invitee status unless the invitation to enter the land [was] tied to the landowner's business interests." Id. at *4. The court recognized invitee status in that case on the basis of evidence showing that the mall owner expected "walkers" to increase sales volume. In addressing the issue of open and obvious risk, the Michigan Court of Appeals emphasized that testimony at trial had established that the puddle in question was "so transparent as to be virtually undetectable by casual inspection." Id. at *6. If anything, the Herteg decision supports rather than undermines defendants' motions for summary judgment. The objective evidence provided by the photographs shows that the post stub in this case was far from being transparent or virtually undetectable. In summary, defendants are entitled to judgment in their favor under Michigan's open and obvious doctrine.
The result would be the same under Michigan's open and obvious doctrine even if plaintiff could somehow be classified as an invitee to whom a higher duty of care is owed under Michigan law. A premises possessor "owes a duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land." Lugo v. Ameritech Corp., 629 N.W.2d 384, 386 (Mich. 2001). "[T]he open and obvious doctrine applies both to claims that a defendant failed to warn about a dangerous condition and to claims that the defendant breached a duty in allowing the dangerous condition to exist in the first place." Millikin v. Walton Manor Mobile Home Park, Inc., 595 N.W.2d 152, 155 (Mich.Ct.App. 1999); see Cudney v. Sears, Roebuck Co., 2001 WL 1355300, at *3. "[T]he general rule is that a premises possessor is not required to protect and invitee from open and obvious dangers. . . ." Lugo, 629 N.W.2d at 386. An exception to the general rule exists "if special aspects of a condition make even an open and obvious risk unreasonably dangerous. . . ." Id.
Under the "special aspects" exception to the general rule, the "premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk." Id. A "critical question is whether there is evidence that creates a genuine issue of material fact regarding whether there are truly `special aspects' of the open and obvious condition that differentiate the risk from the typical open and obvious risks so as to create an unreasonable risk of harm, i.e., whether the `special aspect' of the condition should prevail in imposing liability upon the defendant or the openness and obviousness of the condition should prevail in barring liability." 629 N.W.2d at 387. "[O]nly those special aspects that give rise to a uniquely high likelihood of harm or severity of harm if the risk if the risk is not avoided will serve to remove that condition from the open and obvious danger doctrine." Id. at 387-88.
In Lugo, the Michigan Supreme Court gave two examples of application of the "special aspects principle." The first example involved uniquely high likelihood of harm from a risk that could not be avoided: a commercial building with only one exit for the general public where the floor was covered with standing water. "While the condition is open and obvious, a customer wishing to exit the store must leave the store through the water. In other words, the open and obvious condition is effectively unavoidable." 629 N.W.2d at 387. Plaintiff did not present any testimony or other evidence that the risk in this case was unavoidable. The photographs show that the risk presented could have easily been avoided.
The second example provided in Lugo involved an open and obvious condition which was unreasonably dangerous "because of the special aspects that impose[d] an unreasonably high risk of severe harm." Id. The example the court utilized was an unguarded thirty foot pit in the middle of a parking lot. "The condition might well be open and obvious, and one would likely be capable of avoiding the danger. Nevertheless, this situation would prevent such a substantial risk of death or severe injury to one who fell in the pit that it would be unreasonably dangerous to maintain the condition, at least absent reasonable warnings or other remedial measures being taken." Id. By contrast, the court indicated that a common pothole does not involve an especially high risk of injury and poses little risk of severe harm. 629 N.W.2d at 388. Plaintiff has not presented evidence remotely establishing that the risk posed by the post stub in the court's parking lot presented a risk equivalent to an unguarded thirty-foot-deep pit. The post stub is much more analogous to the trip hazard posed by a common pothole and falls within the general rule of an open and obvious danger rather than the narrow special aspects exception.
Conclusion
Michigan law did not impose upon either the premises owner or a lessee the duty to guard against the open and obvious hazard that caused plaintiff's injury. Defendants' motions for summary judgment will therefore be granted and judgment entered in favor of the defendants.
JUDGMENT
In accordance with the opinion issued herewith,
IT IS ORDERED AND ADJUDGED that defendants' motions for summary judgment (docket #47, 55) are hereby GRANTED and that judgment is entered in favor of defendants upon plaintiffs claims.
IT IS FURTHER ORDERED that the alternative motion of defendants Bowser, Gemrich Moser (docket #30) is hereby DISMISSED as moot.