Gresko v. Southland Joint Venture, Civ. A. No. 93-74256.

• Decision Date: 08 August 1994
• Docket Number: Civ. A. No. 93-74256.
• Citation: 859 F. Supp. 1089
• Parties: Pamela GRESKO and Steve Gresko, Plaintiffs, v. SOUTHLAND JOINT VENTURE, Rouse Southland Management Corporation, and John Doe Snow Removal Company, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

859 F. Supp. 1089

Pamela GRESKO and Steve Gresko, Plaintiffs, v. SOUTHLAND JOINT VENTURE, Rouse Southland Management Corporation, and John Doe Snow Removal Company, Defendants.

Civ. A. No. 93-74256.

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

August 8, 1994.

COPYRIGHT MATERIAL OMITTED

Kenneth A. Stern, Stern & Associates, Southfield, MI, for plaintiffs.

Berry M. Kelman, Ellen Nowicki, Gofrank & Kelman, Southfield, MI, for defendants.

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

GADOLA, District Judge.

This matter is before the court on defendants' motion for summary judgment pursuant to Rule 56(b) of the Federal Rules of Civil Procedure. Plaintiffs have brought this diversity action against defendants alleging negligence in connection with a slip and fall on their premises. In their motion, defendants contend that they had no notice of any dangerous condition, and thus had no duty to make the area safe. For the reasons discussed below, the court will grant defendants' motion.

I. Background

On February 1, 1992, plaintiff Pamela Gresko went shopping at the Southland Shopping Center in Taylor, Michigan. When she left the shopping center at approximately 5:00 p.m., she slipped and fell on a patch of snow covered ice in the parking lot. Plaintiff Steve Gresko is Pamela Gresko's husband, and he is seeking recovery of damages due to loss of consortium.

The shopping mall is owned by defendants Southland Joint Venture, a Maryland partnership, and Rouse Southland Management Corporation ("Southland Management"), a Maryland corporation. Defendant Southland Management is responsible for operating and managing the shopping mall, as well as providing for snow removal.

Plaintiffs allege that they were injured due to defendants' failure to maintain their premises in a safe condition. Defendants contend that they are not liable for plaintiffs' injuries because they had no notice of any dangerous condition that may have existed on their premises. As a result, defendants have brought this motion for summary judgment.

II. Standard of Review

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." "A fact is `material' and precludes grant of summary judgment if proof of that fact would have the effect of establishing or refuting one of the essential elements of the cause of action or defense asserted by the parties, and would necessarily affect the application of appropriate principles of law to the rights and obligations of the parties." Kendall v. Hoover Co., 751 F.2d 171, 174 (6th Cir.1984) (citation omitted) (quoting Black's Law Dictionary 881 (6th ed.1979)). The court must view the evidence in a light most favorable to the nonmovant as well as draw all reasonable inferences in the nonmovant's favor. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 993, 8 L.Ed.2d 176 (1962); Bender v. Southland Corp., 749 F.2d 1205, 1210-11 (6th Cir.1984).

The movant bears the burden of demonstrating the absence of all genuine issues of material fact. See Gregg v. Allen-Bradley Co., 801 F.2d 859, 861 (6th Cir.1986). The initial burden on the movant is not as formidable as some decisions have indicated. The moving party need not produce evidence showing the absence of a genuine issue of material fact. Rather, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once the moving party discharges that burden, the burden shifts to the nonmoving party to set forth specific facts showing a genuine triable issue. Fed.R.Civ.P. 56(e); Gregg, 801 F.2d at 861.

To create a genuine issue of material fact, however, the nonmovant must do more than present some evidence on a disputed issue. As the United States Supreme Court stated in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986),

There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the nonmovant's evidence is merely colorable, or is not significantly probative, summary judgment may be granted.

(Citations omitted). See Catrett, 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). The standard for summary judgment mirrors the standard for a directed verdict under Fed.R.Civ.P. 50(a). Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Consequently, a nonmovant must do more than raise some doubt as to the existence of a fact; the nonmovant must produce evidence that would be sufficient to require submission to the jury of the dispute over the fact. Lucas v. Leaseway Multi Transp. Serv., Inc., 738 F.Supp. 214, 217 (E.D.Mich.1990), aff'd, 929 F.2d 701 (6th Cir.1991). The evidence itself need not be the sort admissible at trial. Ashbrook v. Block, 917 F.2d 918, 921 (6th Cir.1990). However, the evidence must be more than the nonmovant's own pleadings and affidavits. Id.

III. Analysis

The Michigan Supreme Court has adopted the definition of the duty owed by a premises owner to an invitee promulgated by the Restatement (Second) of Torts § 343. Riddle v. McLouth Steel Corp., 440 Mich. 85, 93, 485 N.W.2d 676 (1992); Quinlivan v. Great Atlantic & Pacific Tea Co., Inc., 395 Mich. 244, 235 N.W.2d 732 (1975). Section 343 reads in full as follows:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.

Id. Specifically, in a slip and fall accident case, Michigan courts require that a plaintiff show either that a defendant caused an unsafe condition by the "active negligence of himself or his employees" or, where otherwise caused, that the unsafe condition was known to the defendant or was of such a character or had existed a sufficient length of time that he should have had notice of the condition. Serinto v. Borman Food Stores, 380 Mich. 637, 640-41, 158 N.W.2d 485 (1968); see Whitmore v. Sears, Roebuck & Co., 89 Mich.App. 3, 5, 279 N.W.2d 318 (1979) (plaintiff must show defendant created unsafe condition or had notice thereof).

In cases where the duty owed to invitees "pertains to ice and snow accumulations," Michigan requires "that reasonable measures be taken within a reasonable time after an accumulation of ice and snow to diminish the hazard of injury to the invitee." Quinlivan, 395 Mich. at 261, 235 N.W.2d 732. To establish liability under this doctrine, a plaintiff must prove that the defendant's act of removing ice and snow introduced a new element of danger not previously present. Zielinski v. Szokola, 167 Mich.App. 611, 615, 423 N.W.2d 289 (1988).

Defendants claim that they deserve summary judgment because plaintiffs have failed to present any evidence showing that the patch of ice in the parking lot was either caused by defendants or that there was any notice to defendants as to the existence of the patch of ice prior to the accident. Furthermore, defendants rely upon climatological evidence that shows that only a trace amount of snow had fallen in the early morning of February 1, 1992.

In response, plaintiffs contend that the icy patch in the parking lot was caused by defendants' negligence and that they had implied notice of this unsafe condition. Plaintiffs rely heavily upon the deposition testimony of Cindy Neblett, one of defendants' security officers who responded to the accident.¹ She alleges that ice occasionally forms in the parking lot as a result of the refreezing of run-off water from the melting of large piles of snow ("wind rows") created by defendants during the plowing of the parking lot. Neblett states that on the day of the accident there was a wind row on the parking aisle across from where the plaintiff fell. Furthermore, Neblett states that over her sixteen years as a security officer for Southland Mall, she and other officers and staff have been aware of the problem caused by the refreezing of run-off water from such snow piles. However, Neblett does not state that the particular patch of ice in question was created by run-off from the nearby wind row.

Based upon Neblett's testimony, plaintiffs contend that the evidence shows that through their negligent snow removal operations in the parking lot, defendants created an unsafe condition that led to plaintiffs' injury. In addition, plaintiffs contend that there exists a material question of fact concerning whether defendants took reasonable measures in clearing the parking lot to reduce the hazard of injury to their invitees.

The court disagrees. Plaintiffs have failed to bring forward sufficient facts to defeat defendants' motion for summary judgment. Plaintiffs have failed to demonstrate that there still exist genuine issues of material fact concerning the reasonableness of defendants' snow removal operations, whether those operations caused an unsafe condition, and whether defendants had prior knowledge of that condition.

A. Lack of Evidence to Support Notice or Causal Connection

Plaintiffs argue that defendants had actual notice of the conditions surrounding the...