Berger v. Target Corp.

• Decision Date: 11 May 2021
• Docket Number: Case No. 20-10112
• Parties: JILL BERGER, Plaintiff, v. TARGET CORPORATION, A Foreign Corporation, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

JILL BERGER, Plaintiff, v. TARGET CORPORATION, A Foreign Corporation, Defendant.

Case No. 20-10112

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

May 11, 2021

Paul D. Borman United States District Judge

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT TARGET CORPORATION'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 6)

On March 11, 2019, Plaintiff Jill Berger filed a Complaint in the Wayne County Circuit Court against Target Corporation, which was subsequently removed to this Court based on diversity jurisdiction. (ECF No. 1, Notice of Removal; ECF No. 1-2, Complaint.) Plaintiff alleges three claims: Count I - Negligence; Count II - Violation of the Shopkeeper's Duty; and Count III - Nuisance. In this premises liability action, Plaintiff claims that she sustained injuries when she slipped and fell in some argan oil (a hair product) on the floor of a Target store. Now before the Court is Defendant Target Corporation's Motion for Summary Judgment, seeking dismissal of all of Plaintiff's claims. (ECF No. 6.) The Court held a hearing using Zoom videoconference technology on April 30, 2021, at which counsel for Plaintiff and Defendant appeared. For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART Defendant's Motion for Summary Judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

Plaintiff Jill Berger, a resident of Pompano Beach, Florida, was in Michigan in March 2016 for a get-together with friends. (ECF No. 9-2, Jill Berger Deposition ("Pl. Dep.") at pp. 5, 30-31, PgID 249, 255.) On March 19, 2016, Plaintiff went to the Target-Canton South store to buy some shampoo. (Id. at pp. 31, 35, PgID 255-56.) Her husband, Adam Berger, dropped her off at the door and he stayed in the vehicle. (Id. at p. 31, PgID 255.) Plaintiff had been in the store for less than five minutes and walked down a couple of aisles when she slipped and fell, injuring her left shoulder and left side. (Id. at pp. 32, 39, PgID 255, 257.) She explained the incident as follows:

Q. [By Mr. Willmarth - Defense counsel] So what I'm hearing, you turned into an aisle and that's when the incident occurred?

A. [By Plaintiff] I turned into an aisle. I was able to clear that aisle. And then I went to turn into another aisle and that's when I slipped and fell.

***

Q. What happened then?

A. I turned the corner and then I slipped, fell. I tried to get my bearings, I tried to get up, then I fell again. At that point I believe there was a customer I believe at my feet who was trying to come and help me, and I was screaming at them no. I was trying to figure out what exactly happened and why I was falling. The first time I could not remember, I could not tell why I fell, and then I saw the oil all over me.

***

Q. Were you looking where you were going?

A. I looked down the aisle straight, yeah, I was looking for products.

Q. Did you look at the floor at all?

A. I think I looked down the aisle, looked at the floor, looked at everything, didn't see anything. Nothing was out of the ordinary.

Q. Did you see any liquid or anything on the floor?

A. No.

***

Q. Did you see anybody spill anything as you were returning to the aisle?

A. No.

Q. Did you see anybody break something or throw something on the floor or let something drop?

A. No.

(Pl. Dep. at pp. 35-37, PgID 256-57.) Plaintiff testified that she did not see anything on the floor the first time she fell, but "[t]he second time when I fell I said I'm fallingon something. Then I saw the oil. I picked my hand up or I saw oil. I was covered in oil rather." (Id. at p. 39, PgID 257.) Plaintiff stated that she did not know how the oil got on the floor or how long it was there. (Id. at p. 50, PgID 260.)

While she was still on the floor, Plaintiff called her husband, Adam Berger, and told him that she had fallen and could not get up. (Id. at p. 49, PgID 260.) (ECF No. 9-4, Deposition of Adam Berger ("A. Berger Dep.") at pp. 6-7, PgID 264.) Mr. Berger testified that he went into the store and found Plaintiff still on the ground, and he eventually helped her into a wheelchair. (A. Berger Dep. at pp. 6-7, PgID 264.) The store video of the aisle does not show a wheelchair coming out of the aisle, but rather shows Plaintiff and her husband walking out of the aisle after the fall. Mr. Berger stated that he saw "skid marks on the floor," but could not see any substance on the floor "with the naked eye" and that "you have to look for it [the oil]." (Id. at p. 9, PgID 265.)

Steve Sarten was the first Target employee to respond after Plaintiff's fall. (ECF No. 9-5, Deposition of Steve Sarten ("Sarten Dep."), at p. 5, PgID 271.) Sarten was approached by a customer who told him about the incident. (Id.) He stated he saw Plaintiff sitting on the ground, and that he saw a "small spill of brown liquid" "[o]n the ground" which he determined was from a "vial of Haus Argan Oil." (Id. at pp. 6-7, PgID 272-73.) When asked whether he could see the oil on the ground, heresponded "It was not apparent unless you were looking for it" because "it was lighter in color. So if you weren't actively looking at the ground as you were walking, you would not have noticed it." (Id. at p. 8, PgID 274.) He stated that he did not know how long the spill had been there. (Id.) Sarten called a "code green," which is the code for a team member or a guest incident. (Id. at p. 9, PgID 275) (ECF No. 9-12, Deposition of Erin Decker ("Decker Dep.") at p. 18, PgID 319.)

Target's Leader on Duty ("LOD"), Erin Decker, responded to the "code green" and investigated the incident. (Decker Dep. at pp. 6, 18, PgID 316, 319.) (ECF No. 9-6, Guest Incident Report, PgID 278.) Decker stated that the spill on the floor "looked like, it wasn't a very big spot so initially but when [Plaintiff] had stepped in it she kind of spread it so it was about, it ended up being at about half the aisle." (ECF No. 6-6, 3/24/2016 Recorded Statement of Erin Decker ("Decker Statement"), PgID 194.) She stated in her Recorded Statement dated five days after the incident that the spill "was clear, it was shinny [sic] though" (id.), but subsequently testified in her June 17, 2019 deposition that "[i]t was shiny on the floor, had a brownish tint to it. It's an oil." (Decker Dep. at p. 15, PgID 318.) Decker stated that she discovered a tube or vial of argan oil laying on the floor near the spill, and that she took some photographs of the aisle and also of the argan oil vial as part of her investigation (but that she did not photograph the vial as it was allegedly foundon the floor). (Id. at pp. 8-10, PgID 316-17.) (ECF No. 6-4, Photographs, PgID 170-72.) Decker reported that no Target team members knew about the spill prior to Plaintiff's accident. (Decker Statement, PgID 194.)

Decker, along with Plaintiff and Plaintiff's husband, filled out a "Guest Incident Report." (Guest Incident Report, PgID 278.) (Decker Dep. at pp. 6-8, PgID 316.) The "cause of the incident" was listed as "Argon [sic] Oil Hair Mask Broken on the floor." (Guest Incident Report, PgID 278.) Plaintiff, however, denied ever seeing the argan oil container, or any other source of the spill, on the floor. (Pl. Dep. at p. 44, PgID 258 ("Q. Did you see anything that you felt might have been the source of the oil that was on the floor? A. No.").)

There is a 41 minute video (in two different views) of the Health and Beauty Aisles at the Target Store, from 3:05 p.m. to 3:46 p.m. on March 19, 2016. (ECF No. 6-7, 3/19/2016 Incident Video CD.) The Court has reviewed the videos and notes that they only show a partial view of Aisle 8 (the aisle where the incident occurred) and do not appear to show when the spill happened or provide a clear view of Plaintiff's fall. The videos show several shoppers walking through Aisle 8 at various times prior to Plaintiff's fall, without incident. A shopper with two children appear in the video at around the 3:20:30 mark, and around 3:21, the two children can be seen "twirling" and/or "sliding back and forth" on the floor of Aisle 8. After theshopper leaves the aisle, she appears to wipe the bottom of her shoe on the floor. After that, four more shoppers are seen moving in and about the same part of Aisle 8, without incident and without looking down at or paying any special attention to the floor.

Plaintiff appears on the video at around 3:25:12, walks past Aisle 8, stops and turns to go back down the aisle. She bends over to pick up an item from the bottom shelf at 3:25:48, and at 3:25:59, her head can be seen going down on the bottom of the screen. Plaintiff's husband is seen at around 3:28:05, hurrying in the main aisle and entering the aisle where the incident occurred. A Target employee, possibly Sarten, is seen entering the aisle at round 3:29:39. At around 3:34:40, Plaintiff and her husband walk out of the aisle, stand by the end cap for a few moments, and then walk away, out of view of the camera, at around 3:36:19. Defendants contend that the videos show that there were no Target employees in the aisle where Plaintiff fell at any time prior to the incident. Plaintiff does not dispute this.

B. Procedural History

Defendant filed a Motion for Summary Judgment, arguing that all of Plaintiff's claims should be dismissed. (ECF No. 6, Def.'s Mot. S.J.) Defendant contends that Counts I and II, in which Plaintiff claims that Defendant failed to timely clean the argan oil that was on the floor, essentially state a claim of premisesliability, which should be dismissed because there is no evidence that Defendant created, knew about, or had constructive notice of the alleged condition. Defendant further asserts that the condition was open and obvious. Finally, Defendant argues that Plaintiff's nuisance claim in Count III fails as a matter of law because it is clear there is neither a public nuisance nor a private nuisance alleged or supported by the evidence.

Plaintiff filed a response in opposition to Defendant's motion. (ECF No. 9, Pl.'s Resp.) Plaintiff agrees that...