Opinion
File No. 1:01-CV-777
October 2, 2002
ORDER
In accordance with the opinion entered this date,
IT IS HEREBY ORDERED that Defendant Wal-Mart Stores, Inc.'s motion for summary judgment (Docket #17) is GRANTED.
IT IS FURTHER ORDERED that JUDGMENT is entered in favor of Defendant Wal-Mart Stores, Inc. and Plaintiff's complaint is DISMISSED in its entirety.
OPINION
In this diversity case, Plaintiff Elinor Lauff alleges that Defendant Wal-Mart was negligent in maintaining its premises. As a result of Defendant's alleged negligence, Plaintiff fell and was injured in the women's restroom at Defendant's Grand Rapids store. Before this Court is Defendant's motion for summary judgment. For the following reasons, Defendant's motion for summary judgment is GRANTED.
I.
On July 14, 2000, Plaintiff, a 75-year old legally blind woman, went to Defendant's Grand Rapids store to purchase a birthday gift for her granddaughter. After selecting a locket, Plaintiff had to use the restroom. (Dep. E. Lauff at 28-29). Plaintiff's son, who had driven her to Defendant's store, escorted her to the restroom and waited outside for her. (Dep. E. Lauff at 22, 27). When Plaintiff walked into the restroom, she decided to use the handicap stall. (Dep. E. Lauff at 29-31). The handicap stall was located at the far end of the restroom. (Dep. E. Lauff at 31). Plaintiff had no difficulty walking from the restroom entrance to the handicap stall. (Dep. E. Lauff at 30). After passing three or four other stalls, Plaintiff reached the handicap stall and opened the door. (Dep. E. Lauff at 31). Then, Plaintiff "stepped inside the stall[,]" "[took] a few more steps to sit down on the toilet seat," "sat down[,] and did [her] business." (Dep. E. Lauff at 31-32). Plaintiff did not recall "hav[ing] any problem walking from the door to the stall to the time [she] sat down on the seat." (Dep. E. Lauff at 32). While walking to the toilet seat and sitting down, she "heard [toilet paper] rattle" on the floor in the stall but did not notice any water or other liquid on the floor. (Dep. E. Lauff at 33-34, 37-38).
As she did her business, Plaintiff was seated on the toilet seat with her feet on the floor and again did not notice any water or dampness on the floor. (Dep. E. Lauff at 32-33, 38). After finishing her business, Plaintiff "got up . . . took one or . . . it seemed like one step, and [her] foot just went out from under [her], and [she] just flipped over." (Dep. E. Lauff at 32). Unfortunately, Plaintiff fell "[v]ery hard on [her] hip." (Dep. E. Lauff at 41). On the floor, Plaintiff realized that her right sandal was no longer on her foot. (Dep. E. Lauff at 42). After rolling over and pushing herself up, Plaintiff "fel[t] around on the floor for [her] shoe." (Dep. E. Lauff at 41-42). She could feel that there was water, paper, and "gook" or wet paper on the floor. (Dep. E. Lauff at 43-44). Because she could not find her shoe on the floor, Plaintiff suspected that it was in the toilet. (Dep. E. Lauff at 44). She felt the shoe in the toilet, pulled it out, and noticed that it was wet. (Dep. E. Lauff at 44). After putting her shoe back on her foot, Plaintiff walked out of the restroom. (Dep. E. Lauff at 46). Although Plaintiff did not slip or slide as she walked out of the stall and out of the restroom, she felt pain in her hip and ribs. (Dep. E. Lauff at 46).
After she walked out of the restroom, Plaintiff told her son that she had fallen. Together, Plaintiff and her son approached the service desk to report the incident. The employee at the counter indicated that Plaintiff would have to speak with the manager the next day. Instead of returning to Defendant's store, Plaintiff sent her daughter Linda Vogt ("Ms. Vogt"). Although Ms. Vogt was unable to report Plaintiff's fall, she did inspect the women's restroom. (Pl.'s Br. Opp'n Ex. 9 Aff. L. Vogt ¶ 4). Ms. Vogt noticed that the posted cleaning schedule in the restroom was from the previous week and indicated that the restroom was last cleaned approximately 8 days before Plaintiff's fall. (Pl.'s Br. Opp'n Ex. 9 Aff. L. Vogt ¶¶ 5-7, Ex. 1).
On July 16, Plaintiff went to the emergency room and was diagnosed as having fractured her hip and her ribs. (Dep. E. Lauff at 57, Pl.'s Br. Opp'n Ex. 2). Plaintiff was hospitalized for nine days while doctors operated on her fractured hip and attempted to control her rib and chest pain. (Pl.'s Br. Opp'n Ex. 2-8).
II.
Summary judgment is appropriate w here "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). An issue concerning a material fact is genuine if the record as a whole could lead a reasonable trier of fact to find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Under Rule 56, the court must view the evidence in the light most favorable to the nonmoving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 158-59 (1970). Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248. Summary judgment is proper if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to the party's case for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
III.
Defendant contends that Plaintiff has not presented a prima facie case of negligence. For a prima facie case of negligence, Plaintiff must show that Defendant owed Plaintiff a duty, that Defendant breached the duty, that Defendant's breach of the duty caused Plaintiff damages, and that Plaintiff had damages. Pitsch v. ESE Mich., Inc., 233 Mich. App. 578, 597, 593 N.W.2d 565, 575 (1999). The duty owed depends on the relationship between the plaintiff and the defendant. Stitt v. Holland Abundant Life Fellowship, 462 Mich. 591, 596, 614 N.W.2d 88, 91 (2000). Here, the parties agree that Plaintiff was an invitee.
The Michigan Supreme Court has explained that a landowner's duty of care to an invitee is "not only to warn the invitee of any known dangers, but the additional obligation to also make the premises safe, which requires the landowner to inspect the premises and, depending upon the circumstances, make any necessary repairs or warn of any discovered hazards." Id. at 597, 614 N.W.2d at 92. A landowner breaches this duty and
is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger."
Bertrand v. Alan Ford, Inc., 449 Mich. 606, 609, 537 N.W.2d 185, 186 (1995) (quoting RESTATEMENT (SECOND) OF TORTS § 343 (1965)).
In this case, Defendant acknowledges that it owed Plaintiff a duty but contends that it did not breach the duty it owed Plaintiff. Defendant argues that Plaintiff has not satisfied paragraphs (a) or (b).
Paragraph A
In its first argument, Defendant assumes that the toilet paper, the water, and the "gook" created an unsafe condition in the handicap stall. According to Defendant, Plaintiff has not alleged that the unsafe condition in the handicap stall of the women's restroom was caused by Defendant or Defendant's employees or that Defendant knew of the existence of the unsafe condition. Plaintiff does not dispute these arguments.
Instead, Plaintiff counters that Defendant should have known of the existence of the unsafe condition by reasonably inspecting the handicap stall in the women's restroom. According to Plaintiff, the women's room cleaning schedule shows that Defendant did not clean the women's restroom for over a week. Plaintiff claims that if Defendant had cleaned the women's restroom m ore frequently, Defendant would have had knowledge of the unsafe condition in the handicap stall.
The Michigan Supreme Court explained recently that the length of time that the unsafe condition existed is critical in premises liability cases. Clark v. Kmart Corp., 465 Mich. 416, 419, 634 N.W.2d 347, 349 (2001). In Clark, the Michigan Supreme Court found that a defendant store should have been aware of an unsafe condition because there was evidence to suggest that the unsafe condition had existed for more than an hour. Id. at 421, 634 N.W.2d at 349. The Clark court also noted that in several cases, "defendants have been held entitled to directed verdicts because of the lack of evidence about when the dangerous condition arose." Id., 634 N.W.2d at 349.
Based on this analysis, Plaintiff's argument is not persuasive. While perhaps Defendant should have inspected and cleaned its restroom more frequently, whether Defendant inspected or cleaned its restroom is not the critical issue. Instead, the question in this case is how long the unsafe condition existed in the w omen's restroom. View ed in the light most favorable to Plaintiff, the evidence suggests that there was toilet paper on the floor but no water or "gook" before Plaintiff sat on the toilet. Assuming that the toilet paper alone was an unsafe condition, Plaintiff has not presented any evidence to suggest how long it was on the floor. Cf. Clark, 465 Mich. at 420, 634 N.W.2d at 349 (finding that check-out lane's closure for an hour prior to incident suggested the unsafe condition existed for at least an hour before the accident). As for the water and the "gook," Plaintiff first noticed these on the floor after she fell. Thus, Plaintiff has not presented any evidence to suggest when the unsafe condition created by the water and the "gook" first materialized on the floor. Consequently, even viewing the facts in the light most favorable to Plaintiff, Plaintiff has not demonstrated that Defendant knew or should have known about the unsafe condition.
Paragraph B
For its second argument, Defendant asserts that because the unsafe condition was open and obvious, it should not have expected that Plaintiff would not discover or realize the danger or fail to protect herself against the danger. Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 516, 629 N.W.2d 384, 386 (2001) ("[T]he open and obvious doctrine should not be viewed as some type of `exception' to the duty generally owed invitees, but rather as an integral part of the definition of that duty."). Plaintiff does not dispute that the unsafe condition was open and obvious to an ordinary person. Instead, she contends that the unsafe condition was not open and obvious to her because she is legally blind. To support this argument, Plaintiff relies on Bertrand v. Alan Ford, Inc., 449 Mich. 606, 537 N.W.2d 185 (1995).
In Bertrand, the Michigan Supreme Court noted that the danger of tripping on stairs is open and obvious but that "special aspects" of a particular set of stairs may make it unreasonable for a landowner to expect an invitee to protect herself from the danger. Id. at 614, 537 N.W.2d at 188. Here, Plaintiff argues that "special aspects" of the invitee, namely her blindness, requires Defendant to expect that she will not protect herself from the dangerous condition. Plaintiff's argument has been rejected by the Michigan Supreme Court.
In Lugo v. Ameritech Corp., Inc., the Michigan Supreme Court explained that "only those special aspects that give rise to a uniquely high likelihood of harm or severity of harm if the risk is not avoided will serve to remove that condition from the open and obvious danger doctrine." Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 519, 629 N.W.2d 384, 387-88 (2001). In applying this standard, the Lugo court noted that:
In considering whether a condition presents such a uniquely dangerous potential for severe harm as to constitute a "special aspect" and to avoid barring liability in the ordinary manner of an open and obvious danger, it is important to maintain the proper perspective, which is to consider the risk posed by the condition a priori, that is, before the incident involved in a particular case. It would, for example, be inappropriate to conclude in a retrospective fashion that merely because a particular plaintiff, in fact, suffered harm or even severe harm, that the condition at issue in a case posed a uniquely high risk of severe harm. This is because a plaintiff may suffer a more or less severe injury because of idiosyncratic reasons, such as having a particular susceptibility to injury or engaging in unforeseeable conduct, that are immaterial to whether an open and obvious danger is nevertheless unreasonably dangerous.
Id. at 519 n. 2, 629 N.W.2d at 388 n. 2. By focusing the analysis on the unsafe condition before the plaintiff is injured, the Lugo court rejected any consideration of "special aspects" of the plaintiff. Applying this analytical approach to an ordinary pothole, the court reemphasized the focus on the condition and not the plaintiff and stated that "an `ordinarily prudent' person would typically be able to see the pothole and avoid it." Id. at 520, 629 N.W.2d at 388 (citation omitted).
Viewing the facts in the light most favorable to Plaintiff, the unsafe condition consisted of toilet paper, water, and "gook" on the floor of the handicap stall in the women's restroom. Unfortunately Plaintiff was unable to see this condition because of her blindness, but this condition would have been open and obvious to an ordinarily prudent person. Additionally, no evidence has been pointed out indicating that "special aspects" of the unsafe condition would remove this case from the open and obvious doctrine. Hence, Plaintiff has failed to show that Defendant should have expected Plaintiff would not discover the unsafe condition or fail to protect herself from it.
IV.
Although it is unfortunate that Plaintiff was injured in this case, Plaintiff has not presented facts or a genuine issue of material facts to support the necessary elements of her claim against Defendant. Consequently, Defendant's motion for summary judgment is GRANTED. Accordingly, an order consistent with this opinion will be entered.