Opinion
Case No. 02-71383
November 5, 2002
MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
This is a tort case. Plaintiffs Cynthia Westfall (Westfall) and her husband Daniel Westfall are suing Defendant Wal-Mart Stores, Inc. (Wal-Mart); Wal-Mart Stores, Inc. d/b/a Sam's Club Store #8291 (Sam's Club); and "John Doe" (Doe), an employee of Wal-Mart and/or Sam's Club. Westfall says that she was injured when she tripped over a pallet being pushed by Doe through an aisle at Sam's Club in Flint, Michigan. Westfall is suing for damages based on physical injuries sustained in her fall, pain and suffering, disability, medical expenses, diminishment in the pleasures of life, and loss of wages and earning capacity. Daniel Westfall is suing for loss of consortium. The motion is DENIED for the following reasons.
The Court ordinarily would have oral argument on the motion. However, in this case the Court finds that oral argument is not necessary. See E.D.Mich. LR 7.1(e)(2).
FACTS
The following material facts are not in dispute.On Sunday, March 15, 1999, Westfall and her daughter-in-law, Jennifer Westfall (Jennifer), visited Sam's Club in Flint, Michigan to purchase groceries. They arrived at approximately 11:00 am and shopped for between fifteen minutes and one hour without incident.
Westfall and Jennifer walked into the laundry soap aisle with a shopping cart. Jennifer was pushing the shopping cart; Westfall was behind her and to her left. The shopping cart was in the middle of the aisle approximately two to three feet away from the laundry detergent Westfall wanted to buy. Westfall walked over to the shelf, bent over, and picked up a 200 ounce bottle.
As Westfall stood up and started to turn, the next thing she knew, she was on the floor looking at the metal bar of a pallet jack under her knee. She did not take any steps between the time she turned to her left and the time that she fell striking her knee on top of the pallet jack. She saw nothing as she turned except the store lights. After she fell, she glanced up and saw Doe standing holding the handle of the pallet jack.
See attached photo of the type of pallet jack in question.
Jennifer saw Doe dragging the pallet jack behind him and saw Westfall fall on it as she turned around. Jennifer did not hear Doe or the pallet jack rolling along the floor.
The pallet jack had no merchandise on top of it. There was no one else in the aisle except Westfall, Jennifer, and Doe. There was nothing in the aisle to block Westfall's view of the pallet jack generally.
DISCUSSION I. Summary Judgment Standard
Summary judgment is appropriate when the moving party demonstrates 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). There is no genuine issue of material fact when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The Court must decide "whether the evidence presents a sufficient disagreement to require submission to a [trier of fact] or whether it is so one-sided that one party must prevail as a matter of law." In re Dollar Corp., 25 F.3d 1320, 1323 (6th Cir. 1994) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). In so doing, the Court "must view the evidence in the light most favorable to the non-moving party." Employers Ins. of Wausau v. Petroleum SpeciaIties, Inc., 69 F.3d 98, 101 (6th Cir. 1995).
II. Tort Liability A. Open and Obvious Doctrine
Because the basis for the Court's jurisdiction is diversity, the Court must apply the substantive law of Michigan as interpreted by the Michigan Supreme Court. Reid v. Volkswagen of America, Inc., 575 F.2d 1175, 1176 (6th Cir. 1978).
A possessor of land has a duty to "`protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land' that the landowner knows or should know the invitees will not discover, realize or protect themselves against." Bertrand v. Alan Ford. Inc., 449 Mich. 606, 609 (1995) (citing Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 499 (1988)). However, if the "particular activity or condition creates a risk of harm only because the invitee does not discover the condition or realize its danger, then the open and obvious doctrine will cut off liability if the invitee should have discovered the condition and realized its danger." Id. at 611.
In examining whether a risk of harm is open and obvious, the question is whether an average person of ordinary intelligence would "have been able to discover the danger and the risk presented upon casual inspection." Novotney v. Burger King Corporation, 198 Mich. App. 470, 475 (1993) (citing Glittenberg v. Doughboy Recreational Industries, 441 Mich. 379 (1992)). What is "open and obvious" is an objective standard. Adams v. Perry Furniture Co., 198 Mich. App. 1 (1993). Whether the plaintiff actually discovered the danger is irrelevant. Novotney, 198 Mich. App. at 475.
B. Foreseeable Risk of Harm
Even though a danger may be open and obvious, a property owner may have a duty to exercise reasonable care to protect the invitee if "he should anticipate the harm despite knowledge of it on behalf of the invitee."Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 96 (1992).
[I]f the risk of harm remains unreasonable despite its obviousness or despite knowledge of it by the invitee, then the circumstances may be such that the invitor is required to undertake reasonable precautions. This issue then becomes the standard of care and is for the jury to decide.Bertrand, 449 Mich. at 611.
C. Application and Similar Precedents
Here the danger was not open and obvious because Doe was pulling the pallet jack behind Westfall when she tripped over it. It was not a stationary object or defect (like a pothole) that Westfall simply failed to see. The majority of cases applying the open and obvious doctrine deal with stationary objects. See, e.g., Lugo v. Ameritech Corp., Inc., 464 Mich. 512 (2001) (pothole); Bertrand 449 Mich. 606 (steps);Novotney, 198 Mich. App. 470 (handicap access ramp). Westfall could not be expected to check for hidden dangers every time she moved; that is not what the "casual inspection" standard requires.
Although generally the facts stated by the parties are not in conflict, their representations of what occurred are not consistent. The defendants present the story as if the pallet jack was stationary and in a position for Westfall to see. In support of this scenario, they emphasize that Westfall testified that "to her knowledge" the pallet jack was not moving when she tripped over it. Westfall, however, had her back to the pallet jack, so the fact that she did not see it moving indicates nothing. Jennifer testified that she saw Doe pulling the pallet jack. This then is a material fact very much in dispute, and defendants only evidence that the pallet jack was not moving (Westfall's testimony) simply does not support their position.
Defendants' Statement of Material Facts Not in Dispute is misleading when they say:
After retrieving the Wisk laundry soap, the Plaintiff testified that she stood up, turned to her left and then fell on the floor. Importantly, the Plaintiff did not take any steps backward, but rather, she turned to her left and then tripped and fell. . . . After tripping and falling, Plaintiff realized that she had tripped over a pallet jack which was in the aisle. The Plaintiff testified that the pallet jack was not moving when she tripped over it.
(emphasis in original, citations omitted). Their emphasis on Westfall's testimony that the pallet was not moving is disingenuous.
Defendants' attempts to compare Westfall's situation to open and obvious cases are unavailing. First Defendants cite Jacqueline Kimler v. Wal-Mart Stores. Inc., Case No. 01-CV-20158-DT (E.D.Mich. Apr. 2, 2002) (unpublished opinion), in which the court granted defendant's motion for summary judgment finding that a pallet jack left inside the defendant's store was open and obvious to the casual observer and not unreasonably dangerous. Although this case establishes that a pallet jack may be open and obvious, the pallet jack in Kimler was partially hidden by a clothing rack, but stationary, whereas here Doe was pulling the pallet jack.
To show a moving object or object placed behind a person may be open and obvious, defendants cite Branche v. Northwest Airlines, Inc., 984 F. Supp. 1107 (1997). There the plaintiff tripped over a piece of luggage that had been placed behind her when she lifted her own bag from the airport luggage carousel and stepped back in the same motion. Id. The court focused its analysis on the question: "Would an average user of ordinary intelligence have been able to discover the danger and the risk presented upon casual inspection?" Id. at 1109 (quoting Novotney, 198 Mich. App. at 474; emphasis in original). The court emphasized that the plaintiffs situation was the same as those "present in baggage claim areas in every other airport every day." Id. The court rejected the plaintiffs argument that the danger did not come from a "constant, unchanging hazard" because it found that baggage being moved and set down in a baggage claim are was obvious. Id. at 1109-10 (citing Singerman v. Municipal Serv. Bureau, 455 Mich. 135 (1997) (danger of flying hockey puck was open and obvious to an experienced hockey player)).
Branche, however, presents a very different situation from that faced by Westfall. In a busy airport baggage claim area it is reasonable to expect that bags will be moved around and that one must constantly recheck the area for safety. In an apparently empty store aisle, however, it is not reasonable to expect someone to anticipate that an employee might be walking silently so close behind one that simply pivoting and not even stepping back could result in injury. An average person of ordinary intelligence would have made an initial casual inspection before bending down to retrieve the laundry detergent and would not have discovered the risk.
CONCLUSION
There is a question of material fact as to whether the pallet jack in question was in motion at the time of Westfall's accident. Assuming it was in motion, it did not qualify as an open and obvious danger. Plaintiffs are entitled to present their claim to a jury in the exercise of their Seventh Amendment rights.