ART Quintal v. Von Maur Inc., Case No. 12-11521
| Decision Date | 30 November 2012 |
| Docket Number | Case No. 12-11521 |
| Court | U.S. District Court — Eastern District of Michigan |
| Parties | ART QUINTAL, as Conservator and Legal Guardian of the Estate of MARY QUINTAL, Plaintiff, v. VON MAUR INC, a Foreign Profit Corporation, individually and d/b/a VON MAUR, Defendant. |
This is a premises liability case. Plaintiff Art Quintal (plaintiff), as conservator and legal guardian of the estate of Mary Quintal (Quintal), is suing defendant Von Maur, Inc. (defendant), a retail establishment in Livonia, Michigan, claiming that defendant is liable for the severe injuries Quintal sustained when she tripped and fell over a display panel in defendant's store, ultimately leading to her death.2 Now before the Court is defendant's motion for leave to file a notice of non-party fault (Doc. 11). For the reasons that follow, the motion will be granted.
Quintal was shopping with her husband (plaintiff), at defendant's Livonia store on May 25, 2010. Due to Quintal's prior injuries, she used a walker to get around (Doc 11-3, p. 10). As Quintal approached a clothing display rack in the women's department on the second floor of the store, "she tripped and fell due to a camouflaged wheel of [the] display leg" catching on the right wheel of her walker (Doc. 1-2, p. 2). According to plaintiff, the camouflaged wheel was "protruding in the aisle way where customers . . . would traverse" (Id.). The clothing on the display rack covered the protruding leg.
Quintal suffered serious permanent injuries from the fall and was "totally out for a good five or six minutes, totally nonresponsive" (Doc. 11-3, p. 11). (Id.). She suffered a closed-head injury resulting in a brain bleed and a concussion (Id. at 21). Further, the incident led Quintal to constantly fear falling down. On March 23, 2012, after this case was filed, Quintal died from dementia (Id. at 21). Plaintiff says the fall in defendant's store, in part, resulted in Quintal's death (Id. at 20-21).
On March 2, 2012, plaintiff filed a complaint against defendant in Wayne County Circuit Court.
On April 4, 2012, defendant removed the case to this Court based on diversity jurisdiction (Doc. 1).
On May 2, 2012, defendant filed an answer to the complaint (Doc. 3).
On July 23, 2012, defendant filed a motion to compel discovery pursuant to Fed. R.Civ. P. 37(a)(3)(B). The Court entered a stipulated order compelling plaintiff's answers to defendant's interrogatories and discovery requests (Doc. 8).
On September 21, 2012, defendant took plaintiff's deposition. In plaintiff's deposition, he was asked several questions about Quintal's medical treatment history. Shortly after plaintiff's deposition, plaintiff's counsel contacted defendant's counsel and informed her that plaintiff intended to file a medical malpractice action against Quintal's medical providers.
On October 15, defendant filed this motion for leave to file a notice of non-party fault (Doc. 11).
Defendant filed the notice of non-party fault after 91 days from the time the answer was filed. Accordingly, defendant must show that the facts on which the notice is based were not ascertainable with reasonable diligence and that plaintiff is not unfairly prejudiced.
Defendant says it was unaware that a third party may be responsible for Quintal's injuries and death until plaintiff's counsel notified it, after plaintiff's deposition, of plaintiff's intent to file a medical malpractice action against Quintal's medical providers. Further, defendant says it was unaware that plaintiff intended to pursue a wrongful death action against it, as plaintiff expressed in his deposition. Thus, defendant says the Court should allow it to file a late notice of non-party fault because it was unaware that Quintal's medical providers were responsible for her injuries in any way.
Plaintiff says the medical providers cannot be sued in this case because they did not proximately cause the injuries that occurred at defendant's store. Plaintiff relies on Derbabian v. S & C Snowplowing, Inc., 249 Mich. App. 695 (2002), Jones v. Enertel, Inc., 254 Mich. App. 432 (2002) (per curiam), and Romain v. Frankenmuth Mut. Ins. Co., 483 Mich. 18 (2009) (per curiam), for the proposition that defendant cannot file a notice of non-party fault naming Quintal's medical providers. Further, plaintiff says defendant (1) knew of Quintal's fall at the time it occurred and (2) had Quintal's medical records in its possession months before plaintiff's deposition.
Id. at 20 (internal citations omitted). Resolving a conflict between two published court of appeals opinions, the Supreme Court in Romain clarified that Jones, supra, was controlling precedent and "proof of a duty is required 'before fault can be apportioned and liability allocated' under the comparative fault statutes. . . ." Id. (emphasis in original).
Plaintiff's reliance on Derbabian, supra, for the proposition that Quintal's medical providers did not owe Quintal a duty to protect her from falling is misguided. Defendant does not claim that Quintal's medical providers owed her a duty on the day she was shopping at its store. Rather, defendant says Quintal's medical providers owed her a duty in providing her medical care. Plaintiff's counsel informed defendant's counsel that plaintiff is planning on filing a medical malpractice action on Quintal's behalf. Such an action would necessarily require plaintiff to allege that the medical providers breached a legal duty owed to Quintal. See, e.g., Bryant v. Oakpointe Villa Nursing Centre, 471 Mich. 411, 420 (2004). Importantly, a medical malpractice action may relieve defendant of some of its liability. Defendant and Quintal's medical providers cannot both be the proximate cause of the same exact injuries. Thus, it makes sense that defendant wants to file a notice of non-party fault, adding the medical providers to this case.
Here, plaintiff's complaint, filed on March 2, 2012, states that Quintal sustained the following injuries:
Quintal died on March 23, 2012. Through plaintiff's deposition which took place on September 21, 2012, defendant learned that plaintiff believed defendant was liable for Quintal's death:
(Doc. 11-3, pp....
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