Foust v. Home Depot USA, Inc.

• Decision Date: 29 February 2016
• Docket Number: Civil Case No. 14-13571
• Citation: 166 F.Supp.3d 881
• Parties: Theresa Foust and Ronald Foust, Plaintiffs, v. Home Depot USA, Inc. d/b/a The Home Depot, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

166 F.Supp.3d 881

Theresa Foust and Ronald Foust, Plaintiffs,

v.Home Depot USA, Inc. d/b/a The Home Depot, Defendant.

Civil Case No. 14-13571

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

Signed February 29, 2016

Jeffrey A. Danzig, Anne L. Randall, Maureen M. Heilmann, The Johnson Law Firm, Detroit, MI, for Plaintiffs.

Carolyn M. Jereck, Plunkett & Cooney, Bloomfield Hills, MI, for Defendant.

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

LINDA V. PARKER, UNITED STATES DISTRICT JUDGE

Plaintiffs filed this lawsuit in state court against Defendant Home Depot USA, Inc., d/b/a The Home Depot (“Defendant”), after Plaintiff Theresa Foust (“Mrs. Foust”) fell after tripping on a display cart at Defendant's store in Auburn Hills, Michigan. Defendant removed the action to federal court on the basis of diversity jurisdiction on September 15, 2014. In the Complaint, Mrs. Foust asserts premises liability (Count I) and negligence (Count II) claims against Defendant. Her husband, Ronald Foust, asserts a derivative loss of consortium claim against Defendant (Count III). Presently before the Court is Defendant's motion for summary judgment, filed pursuant to Federal Rule of Civil Procedure 56. The motion has been fully briefed. (ECF Nos. 20, 21.) Finding the facts and legal arguments sufficiently presented in the parties' pleadings, the Court is dispensing with oral argument with respect to Defendant's motion pursuant to Eastern District of Michigan Local Rule 7.1(f). For the reasons that follow, the Court is granting in part and denying in part Defendant's motion.

I. Summary Judgment Standard

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The central inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). After adequate time for discovery and upon motion, Rule 56 mandates summary judgment against a party who fails to establish the existence of an element essential to that party's case and on which that party bears the burden of proof at trial. Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The movant has the initial burden of showing “the absence of a genuine issue of material fact.” Id . at 323, 106 S.Ct. 2548. Once the movant meets this burden, the “nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation marks and citation omitted). To demonstrate a genuine issue, the nonmoving party must present sufficient evidence upon which a jury could reasonably find for that party; a “scintilla of evidence” is insufficient. See Liberty Lobby , 477 U.S. at 252, 106 S.Ct. 2505.

“A party asserting that a fact cannot be or is genuinely disputed” must designate specifically the materials in the record supporting the assertion, “including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, or other materials.” Fed. R. Civ. P. 56(c)(1). The court must accept as true the non-movant's evidence and draw “all justifiable inferences” in the non-movant's favor. See Liberty Lobby , 477 U.S. at 255, 106 S.Ct. 2505.

II. Factual Background

On June 3, 2014, at around 4:45 p.m., Mrs. Foust visited Defendant's Home Depot store in Auburn Hills, Michigan, where her daughter was working as a cashier. While waiting for her daughter to get off work at 5:00 p.m., Mrs. Foust traveled to an aisle of the store to look at blinds for her home. Mrs. Foust entered the aisle at the end closest to the front of the store, without any difficulty, and browsed the aisle. As she returned down the same aisle to the front of the store, her left shoe “caught” what she now assumes was the “bottom part” of a conversion cart situated just inside the aisle, which caused her to fall. Mrs. Foust fell to the ground onto her right hip, causing a comminuted fracture of the right femur requiring open reduction and internal fixation of the right hip.

The conversion cart, or “wing stack”, is an “L” shaped metal cart with a 2'>x 2' base and a 51? tall pegboard on which sales material is displayed. (ECF No. 19, Ex. 4 at Answers 3 and 4; Ex. 3.) The base and pegboard piece are dark grey in color. (Id ., Ex. 3.) At the time of the incident at issue, packaged products were displayed hanging from the pegboard and standing on the base. (Id. ) The product on the base did not cover the entire base. (Id .) The aisle floor is a grey colored concrete, which the store's Manager, John Okar, described during his deposition in this matter as a lighter grey than the conversion cart. (ECF No. 20, Ex. F at 14.) Teri Ann Nickson-Nye, Mrs. Foust's daughter who works at the Home Depot, testified that the cart and color of the aisle floor are similar in color. (Id ., Ex. I at 33, 35-36.)

Home Depot employees had moved the conversion cart from the aisle's end cap to the first upright inside the aisle several days earlier to follow a special event floor plan distributed by the corporate office. (Id ., Ex. 4, Answer to No. 6.) According to Home Depot's practice, when moved into an aisleway, the conversion cart is placed at a forty-five degree (45) angle to enable customers to get around the cart to reach product placed on the aisle shelves. (ECF No. 20, Ex. F at 36.) The aisles are approximately eight to ten feet wide. (Id . at 53; Ex. C at 76.) The distance between the closest base corner of the display unit to the permanent retail racking located on the opposite side of the aisle is approximately five feet. (ECF No. 19, Ex. 4, Answer to no. 17.) Mrs. Foust agreed with defense counsel during her deposition that there was “plenty of room” to walk through the aisle without encountering the cart. (Id . Ex. C at 79.) There was no one else attempting to enter or exit the aisle when Mrs. Foust's incident occurred. (Id . at 76.)

There is no evidence that the conversion cart had been moved by an employee or customer before Mrs. Foust's fall. (ECF No. 19, Ex. 4 Answer to No. 9.) Nevertheless, at her deposition in this matter, Mrs. Foust did not recall seeing or looking to see if there were any free standing displays and she did not see the display before she fell. (ECF No. 20, Ex. C at 69, 71.) She also had no memory of looking toward the floor to observe any obstructions in her path before she fell. (Id . at 69.) Instead, Mrs. Foust recalled looking to her right at whatever was displayed in the aisle and to the front of the store where her daughter was situated at her cashier station immediately before she tripped and fell. (Id . at 68.) Looking at pictures of the area where the accident occurred during her deposition, which the store's Operations Manager, Jonathan Wood, took immediately after the accident, Mrs. Foust agreed with Defendant's counsel that the conversion cart was highly visible. (Id . at 93.) During her deposition, Mrs. Faust's daughter also agreed with Defendant's counsel that the conversion cart is highly visible if someone is paying attention. (Id ., Ex. I at 46.) When reminded by Plaintiffs' counsel that Mrs. Foust would have been approaching the cart from its backside when she fell, Ms. Nickson-Nye agreed with Plaintiffs' counsel that the corner of the cart's base in fact was not highly visible. (Id . at 50–51, 53–54.)

Nevertheless, Mr. Wood, the store's Operations Manager, testified during his deposition in this case that in the twenty years he has worked at Home Depot, Mrs. Foust's accident was the first time he has had to respond to a customer tripping over a conversion cart. (ECF No. 20, Ex. H at 23.) Mr. Okar, the store's Manager, testified during his deposition that he was unaware of any trip and fall incidents over conversion carts occurring during his fifteen years at Home Depot. (Id . Ex. F at 41.) When asked if he considered the cart to be a trip hazard, Mr. Okar responded that he did not “because...I see this as something that is easy to be seen, is large enough in size that is noticeable and is, you know, positioned as such so that the customer is able to see that it's there....” (Id . at 42.) Ms. Nickson-Nye testified that she had never noticed anyone coming in contact with conversion carts in the store before her mother's accident. (Id ., Ex. I at 27.) However, since the accident, she has seen people trip on the conversion carts, although not falling as a result. (Id . at 28–29.)

III. Defendant's Arguments and Plaintiffs' Response

In its motion for summary judgment, Defendant argues that it is not liable for Mrs. Foust's accident because the conversion cart was an open and obvious danger. Defendant contends that there are no special aspects of the conversion cart to remove this case from the open and obvious doctrine. Defendant maintains that Mrs. Foust's claim sounds in premises liability rather than ordinary negligence as there is no evidence that Mrs. Foust's injury was the result of Home Depot employees omitting their responsibilities, as opposed to a condition of the premises.

Plaintiffs contend in response that there is a genuine issue of material fact with respect to whether the conversion cart was an open and obvious danger. Thus, Plaintiffs argue, the question is for the jury to decide. Plaintiffs also argue that Defendant has a separate duty as a shopkeeper to keep its aisles safe for customers to which the open and obvious doctrine is inapplicable.

IV. Applicable Law and Analysis¹

Under Michigan law, a plaintiff asserting a...