Cote v. Lowe's Home Ctr., Inc.

Citation896 F.Supp.2d 637
Decision Date14 September 2012
Docket NumberCase No. 11–11908.
PartiesLaurent COTE, Plaintiff, v. LOWE'S HOME CENTER, INC., Defendant.
CourtUnited States District Courts. 6th Circuit. United States District Court (Eastern District of Michigan)

896 F.Supp.2d 637

Laurent COTE, Plaintiff,
v.
LOWE'S HOME CENTER, INC., Defendant.

Case No. 11–11908.

United States District Court,
E.D. Michigan,
Northern Division.

Sept. 14, 2012.


[896 F.Supp.2d 638]


Laurent A. Cote, pro se.

Ridley S. Nimmo, II, Plunkett & Cooney, Flint, MI, for Defendant.


OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

THOMAS L. LUDINGTON, District Judge.

A man drives his motorized wheelchair down the main aisle of a Lowe's Home Center store. At the same time, an employee on a ladder moves boxes on the top shelf in a side aisle. As the man in the wheelchair passes by the side aisle, a box falls from the shelf that the employee is working on. The box—ten inches high and three feet long—strikes the man in the back of the head. Knocked unconscious, the man loses control of the wheelchair, which veers into a metal refrigerator, throwing the man forward.

The question in this case is whether based on these factual allegations the man may assert claims for premises liability or ordinary negligence or both under Michigan law.

Plaintiff Laurent Cote has brought suit against Defendant Lowe's Home Centers, Inc., asserting claims for premises liability, ordinary negligence, gross negligence, and grossly negligent hiring/retention. Defendant now moves for summary judgment. ECF No. 10.

Because Plaintiff has introduced no evidence of gross negligence, or grossly negligent hiring/retention, Defendant is entitled to summary judgment on those claims. But because Plaintiff has introduced eyewitness testimony that the box fell from the very shelf that the employee was working on, it reasonable to infer that the box fell either because of the condition of the premises or the acts of the employee.1 Consequently, under the circumstances of this case, the claims of premises liability and ordinary negligence are not mutually exclusive—and Defendant is not entitled to summary judgment on either. Accordingly, the Court will grant in part and deny in part Defendant's motion.

I
A

A falling tree branch broke Plaintiff's neck in 1980. Pl. Dep. 54:3–11, 57:20–22,

[896 F.Supp.2d 639]

Sept. 28, 2011, attached as Def.'s Mot. Summ. J. Ex. 2; see also Lingenfelter Medical Records 2, attached as Pl.'s Resp. Ex. E (noting the blow fractured Plaintiff's C4–C5 vertebrae). Plaintiff 22 years old at the time, was left unable to move “[f]rom, like, the midstomach area all the way down.” Pl. Dep. 57:13. Plaintiff did, however, retain “normal functions of his upper extremities.” Levin Medical Records, at 1, attached as Pl.'s Resp. Ex. F.

About thirty years later, Plaintiff alleges, another falling object struck him in the head and injured him, giving rise to this litigation.

On the evening of April 9, 2008, Plaintiff went to Lowe's Home Center in Saginaw, Michigan, to purchase a bathroom medicine cabinet. Pl. Dep. 62:15–23, 105:8–20. Plaintiff was in a motorized wheelchair. Pl. Dep. 47:18–48:3. With him were two gentlemen, Floyd Hall and Rick Ramirez, who both worked part time for Plaintiff. Pl. Dep. 63:11–12.

On entering the store, Plaintiff asked one of Defendant's employees “where are the bathroom cabinets? And he said down towards the lumber aisle. So we [went] down towards the lumber.” Pl. Dep. 90:15–17.

As the gentlemen moved down the store's main aisle towards the lumber section, Mr. Ramirez recalled that he had a job to do involving wood paneling. Pl. Dep. 90:24–91:9. Plaintiff recollects: “So he took off in the paneling, said he'd meet up with us later.” Pl. Dep. 91:1–4. Plaintiff and Mr. Hall continued down the main aisle towards the lumber section, glancing down the aisles that they passed for medicine cabinets. Pl. Dep. 92:4–6.

In one aisle, Plaintiff and Mr. Hall saw an employee and a ladder. See Pl. Dep. 111:12–112:11; Hall Dep. 69:5–21, Mar. 7, 2012, attached as Def.'s Mot. Ex. 3. The ladder had a series of steps leading to a platform. Hall Dep. 80:8–10. Plaintiff recalls that when he passed the employee and ladder for the first time, the employee was near the ladder “like opening boxes or something.” Pl. Dep. 112:2–3. Mr. Hall disagrees, recalling that the employee was already on the ladder “shuffling boxes around.” Hall Dep. 70:25–71; see also Hall Dep. 69:5–25.

Eventually, Plaintiff and Mr. Hall reached the lumber section without seeing the medicine cabinets, and so asked another employee for directions. Pl. 116:1–17. “The guy pointed, said you've got to go all the way down to where you came,” Plaintiff recounts. Pl. 116:1–17.

Returning the way they came, Plaintiff and Mr. Hall again approached the aisle with the employee and the ladder. Pl. Dep. 118:10–18. This time, the gentlemen agree, the employee was on the platform on top of the ladder moving boxes on the shelf. Compare Pl. Dep. 118:15, with Hall Dep. 90:15–21. Counsel for Defendant asked Plaintiff in his deposition:

Q: Did [the employee] actually take a box off and hand it to a customer that you saw?

A: I know he was working on moving the boxes around.

Q: Did you see him touch a box?

A: Yeah, I seen him, boxes in his hand.

Q: Did you see him remove a box from anywhere?

A: From the, yeah, the area that he was working in, yeah.

Q: What did he do with that box?

A: He started[—]I think he was starting to go down the ladder, and then after that, that was it.

Q: What do you mean after that, that was it?

A: That's where I got hit.

[896 F.Supp.2d 640]

Q: Okay. So you don't remember anything other than you see some guy, you think a Lowe's employee, on a ladder. You say that you see [him] grab a box, is that what you are saying?

A: Yeah.

Q: Is that a yes?

A: Yes.

Q: All right. And did you see him hand it to a customer?

A: I don't know after that. I got hit, so I don't know what happened after that.... Q: Okay, so you're saying that you don't have any recollection of anything after when you get, you think you get hit?

A: Right.

Pl. Dep. 94:5–95:1, 96:25–97:3. Returning to this incident later in the deposition, counsel for Defendant asked:


Q: Before, in terms of your recollection of this particular incident, how close to the actual incident, as you understand it, does your memory go?

A: As soon as the box hit me, that was it.

Q: Do you remember even seeing the box fall?

A: No.

Q: Do you remember even seeing anything fall whatsoever?

A: No.

Q: Okay. So you don't know if a box even fell on you. All you know is you were going down the aisle and then you have no memory?

A: I felt something hit my head, so it must have been a box.

Q: Well, but how would you know that unless you saw it?

A: Right. Yeah.

Q: But you didn't see a box hit you in the head?

A: No.

Pl. Dep. 127:2–17. Probing further, counsel for Defendant put forward Defendant's theory of the case—that Plaintiff was not hit in the head by a falling box, but rather hit an object with his wheelchair, lost control, and ran into a refrigerator. Counsel asked:


Q: As we sit here today, you don't know if you hit an unknown object and lost control of your wheelchair and ran into a refrigerator; you don't know if that is accurate or not?

A: No.

Q: No, you don't know?

A: All I know is the box hit me, guy. You know, what can I say? You asked me about ten different times.

Pl. Dep. 151:18–24. Mr. Hall, unlike Plaintiff, testifies that he remembers seeing the box fall. In Mr. Hall's deposition, counsel for Defendant asked:


Q: What my focus is on, when you saw [the employee] the first time, what he was doing with those boxes. And you say he was stacking them in some manner, and I'm just trying to figure out if he's stacking—you see him stacking four tan boxes on top of each other saying, ooh, these look nice and pretty. Or is he doing something else? I mean do you have any idea what he's doing up there?

A: No.

Q: All right. And then the second time you see this employee, what is it that you recall him doing with the box?

A: That's when I noticed the one that fell and hit Larry.

[896 F.Supp.2d 641]

Q: Okay, and in terms of the box itself, do you know what[—]which box it was or what box—

A: Tan box.

Q: All right, it was a tan box?

A: Yes.

Q: And did you see the tan box actually fall?

Q: Yes.

A: Did it come off the top shelf, or did it come out of the employee's hands?

Q: It came off the very top shelf. The one that [the] employee was working on.

A: And how did it come off?

Q: Probably from him moving them around.

Hall Dep. 90:22–91:25. Rephrasing the inquiry, counsel for Defendant continued:


Q: All right. Did you actually see it come off the top shelf?

A: Yeah, because when it came, it did like a little swerve....

Q: All right. And did you see why it is that the box came off the shelf?

A: No, because I was like ten feet in back of him.

Hall Dep. 92:7–9, 93:9–11. Asked to explain, Mr. Hall elaborated: “I was 10 feet behind Larry. I'm not up by the aisle yet to see how it happened. But that box [fell from] where that guy was standing at, doing the work.” Hall Dep. 94:3–5. Asked if he called out a warning to Plaintiff, Mr. Hall responded: “No, because I just froze.” Hall Dep. 107:17–20.


The box—about ten inches high and three feet long—struck Plaintiff behind the right ear, Mr. Hall recalls. Hall Dep. 78:1–15, 106:1–6. Counsel for Defendant asked:

Q: [Y]ou see the box come into the back side of Larry's head. Does it fall to the ground?

A: Yes.

Q: Is it in the main aisle at that point?

A: Yes.

Q: All right. And then what happens with Larry?

A: He's like slouched down in his chair and he was knocked out, and that's when he ran into the refrigerators.

Q: Okay. Did he go directly from getting hit on the head to going towards the refrigerators?

A: Yeah.

Hall Dep. 108:14–25. Mr. Hall later elaborated that after Plaintiff was knocked out, his hand involuntarily pressed the wheelchair's joystick, propelling him forward. Hall Dep. 112:4–113:1. Careening off a flatbed cart, Plaintiff's wheelchair ran into a refrigerator, knocking Plaintiff forward. Hall Dep. 108:19–109:16.


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