Karres v. Allied Dev. Co.

• Decision Date: 16 May 2022
• Docket Number: 20-cv-10108
• Parties: JENNIFER KARRES, Plaintiff, v. ALLIED DEVELOPMENT COMPANY, LLC, a Michigan Limited Liability Company, JOSEPH LAWRENCE KOTT, and KATHLEEN EDITH KOTT, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

JENNIFER KARRES, Plaintiff, v. ALLIED DEVELOPMENT COMPANY, LLC, a Michigan Limited Liability Company, JOSEPH LAWRENCE KOTT, and KATHLEEN EDITH KOTT, Defendants.

No. 20-cv-10108

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

May 16, 2022

OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (ECF NO. 23)

PAUL D. BORMAN UNITED STATES DISTRICT JUDGE

In this premises liability action, Plaintiff Jennifer Karres presently a resident of the State of Virginia, claims that she sustained injuries when she tripped and fell down the stairs when she was exiting the upstairs apartment she rented from Defendant Allied Development Company, LLC. She brings this suit against Defendant Allied and the alleged owners of the property, Defendants Joseph Kott and Kathleen Kott. Now before the Court is Defendants' Motion for Summary Judgment seeking dismissal of Plaintiff's premises liability claim, which has been fully briefed. The Court held a hearing on Defendants' motion on Friday, April 29 2022. For the reasons that follow, Defendants' motion for summary judgment is GRANTED and Plaintiff's premises liability claim is DISMISSED WITH PREJUDICE.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background

In June 2011, Plaintiff Jennifer Karres leased the upstairs unit of a house located at 186 E. Liberty, Plymouth, Michigan, from lessee Defendant Allied Development Company, LLC (“Allied”). (ECF No. 23-5, Lease Agreement, PageID.322-25.) Defendant Joseph Kott signed the lease agreement on behalf of the lessee, and he is the registered agent and member of Allied. (Id. PageID.325) (ECF No. 23-4, LARA - Corporate Online Filing System, PageID.320.) Defendant Kathleen Kott is Joseph Kott's wife, and Plaintiff alleges that Joseph and Kathleen Kott were the fee simple title owners of the subject property during the relevant time period, and that they together “own[ed], manage[d], control[led] and offer[ed] for rent the premises located at 186 East Liberty Street.” (ECF No. 11, Pl.'s Second Amended Complaint (SAC) ¶¶ 3, 4) (ECF No. 25, Pl.'s Resp. at PageID.371, citing ECF No. 25-2, 2003 Quit-Claim Deed, PageID.381.)

The upstairs unit that Plaintiff rented was equipped with an exterior, freestanding staircase that led directly to Plaintiff's unit only and was not shared with any other tenants. (ECF No. 23-3, Deposition of Plaintiff Jennifer Karres (Karres Dep.) at p. 22, PageID.278.)

The stairs were the only access to Plaintiff's unit. (ECF No. 25-4, Deposition of Defendant Joseph Kott (J. Kott Dep.) at p. 21, PageID.405.) Plaintiff testified that the staircase was “old, ” “unstable, ” and “shaky, ” and that “different steps were uneven, ” since she moved into the unit in June 2011. (Karres Dep. at pp. 24-25, PageID.279-80.)^[1] She described the stairs as “super smooth, ” “very old, ” and “very weathered.” (Id. at pp. 29, 56, PageID.284, 311.) However, Plaintiff testified that she used the stairs daily since she moved into the apartment in 2011 and that that she had never fallen or otherwise had a similar issue with the stairs prior to the January 23, 2017 incident. (Id.)

Plaintiff testified that, prior to her fall, she had verbally complained to Defendants' assistant “Janet” (later identified by Mr. Kott as his secretary Janet Yuchaz) while paying rent that “there was something wrong with the steps, ” and that she had also pointed out her issues with the stairs to maintenance workers who were on the property. (Karres Dep. at p. 27, PageID.282.) Plaintiff however never reported any issues with the stairs directly to either Joseph Kott or Kathleen Kott. (Id. at p. 28, PageID.283.)

On Monday January 23, 2017, Plaintiff was at home all day “just hanging out.” (Karres Dep. at p. 29, PageID.284.) At approximately 6:00 p.m., Plaintiff left her apartment to retrieve her mail. (Id. at p. 26, PageID.281.) She testified that “it was drizzling, and unseasonably warm” that day, and that the ground and stairs were wet/damp. (Id. at p. 30, PageID.285.) She stated that it was dark when she left the apartment and that the light over the stairway was out, but that solar lights on the stairway posts were on. (Id. at p. 31, pageID.286.) As she got near the bottom of the staircase, to about the third step from the bottom, Plaintiff fell. (Id. at pp. 26-27.) She testified:

I just came down and went to step on that step, and just - it wasn't there because of the slant of it. And I went down hard and hit the next step, and my leg just snapped when it hit that next step. And I landed on the cement, smacked my head, and laid there for about a half-hour until some kids in the neighborhood heard me screaming so - and that's when they came and called 911.

(Karres Dep. at p. 31, PageID.286.)

Plaintiff further testified regarding the cause of her fall:

Q. Okay. So you had made it almost all the way down, and were on the third step with two more steps to go; is that accurate?

A. Yes.

Q. Had you ever noticed that particular step to be in a state of disrepair before this incident:

A. Yes.

Q. And what was wrong with it?

A. It was uneven.

Q. It that what caused the fall, that it was uneven?

A. I don't know what caused the fall. That's the step I believe that, you know, I missed, or that caused me to fall.

(Karres Dep. at pp. 26-27, PageID.281-82 (emphases added); see also id. at p. 32, PageID.287 (“I believe it to be - I mean, the steps were - all the steps were - that is my thought that because of the unevenness. It was blatantly uneven.”).) She testified that she believes the step was “slanted” left to right - the left side being higher. (Id. at pp. 56-57, PageID.311-12.)

Plaintiff initially provided varying causes of her fall down the stairs to her doctors. When she was first treated after her fall, she reported to her doctors that “her r[ight] knee gave out on her which caused her to fall.” (ECF No. 23-6, St. Mary's Hospital Discharge Summary, PageID.327; ECF No. 23-7, Social Security Disability pages, PageID.329-33.) Plaintiff similarly reported to doctors in conjunction with her applications for Social Security disability benefits, that she fell in January 2017 because “her right knee gave out[, ]” or “due to the knee popping out[.]” (Social Security Disability pages at PageID.331-32 (Plaintiff reporting “I keep falling.”).)

Plaintiff had previously injured her right knee approximately 40 years ago, resulting in surgery and the placement of hardware in her right knee. (Id. PageID.330; Karres Dep. at p. 19, PageID.275.) Plaintiff testified that she injured her right knee again in either 2014 or 2016, when she slipped on some water on the floor at work and fell, and she broke her wrist and again injured her right knee. (Karres Dep. at pp. 9-10, PageID.265-66.)^[2]

As a result of her fall down the home steps on January 23, 2017, Plaintiff sustained a fractured right proximal fibula, and fractured right tibial plateau, requiring surgery to install a rod and supporting screws. (Karres Dep. at p. 36, PageID.291; St. Mary's Hospital discharge summary, PageID.327.)

B. Procedural History

On January 15, 2020, Plaintiff Jennifer Karres filed a Complaint in this case alleging one count of premises liability against Defendants Allied, Joseph Kott, and Kathleen Kott. (ECF No. 1, Complaint.) Plaintiff filed an amended (corrected) complaint (in the correct-sized font, as ordered by the Court) on January 21, 2020 (ECF No. 4, FAC), and then filed a second amended complaint, with leave of Court, on March 12, 2020, fully identifying the citizenship of all parties and again alleging the single count of premises liability against all Defendants. (ECF No. 11, SAC.)

On January 5, 2022, Defendants filed a Motion for Summary Judgment, arguing that Plaintiff's claims against all Defendants should be dismissed. (ECF No. 23, Defs.' Mot.) Defendants argue that Plaintiff's premises liability claim fails because she relies on impermissible speculation and conjecture regarding the cause of her fall. Defendants further contend that Plaintiff's premises liability claim is barred by the open and obvious danger doctrine, and that there are no special aspects that would provide an exception to this bar. Defendants further argue that Joseph and Kathleen Kott, as individuals, are entitled to summary judgment because they are not the owners of the subject premises and they cannot be held individually liable for the acts of an LLC.

Plaintiff filed a response in opposition to Defendants' motion on February 26, 2022. (ECF No. 25, Pl.'s Resp.) Plaintiff argues that she has provided sufficient evidence, through her deposition testimony, regarding what caused her fall - an uneven step and burned-out lighting - to survive summary judgment. She further contends that she has presented evidence of the special aspects of the stairs - namely, that they provide the only access to her apartment - that negate the open and obvious bar. Finally, Plaintiff contends that Defendants Kathleen and Joseph Kott are the fee simple owners of the property and thus are proper defendants.

On March 11, 2022, Defendants filed a reply brief. Defendants contend that Plaintiff's premises liability claim fails because she cannot establish causation as she has offered several shifting possible explanations for her fall. Defendants further argue that Plaintiff does not dispute that the alleged danger of the steps was open and obvious, and she cannot establish the existence of special aspects that would preclude application of the open and obvious defense. Finally, Defendants contend that, at most, Joseph Kott may be a fee simple owner of the subject property, but that Kathleen Kott is not and should be dismissed as an individual defendant.

II. LEGAL STANDARD

Summary judgment is appropriate where the...