Kennedy v. A & P

• Decision Date: 20 March 2007
• Docket Number: Docket No. 272453.
• Citation: 737 N.W.2d 179,274 Mich. App. 710
• Parties: William KENNEDY, Plaintiff-Appellant, v. GREAT ATLANTIC & PACIFIC TEA COMPANY, d/b/a Farmer Jack, and Borman's, Inc. d/b/a Farmer Jack, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

737 N.W.2d 179

274 Mich. App. 710

William KENNEDY, Plaintiff-Appellant, v. GREAT ATLANTIC & PACIFIC TEA COMPANY, d/b/a Farmer Jack, and Borman's, Inc. d/b/a Farmer Jack, Defendants-Appellees.

Docket No. 272453.

Court of Appeals of Michigan.

Submitted March 13, 2007, at Detroit.

Decided March 20, 2007, at 9:10 a.m.

Law Offices of Edward C. Pedersen, PLLC (by Edward C. Pedersen), Bloomfield Hills, for the plaintiff.

Sullivan, Ward, Asher & Patton, P.C. (by Lee C. Patton and Matthew I. Henzi), Southfield, for the defendants.

Before: JANSEN, P.J., and NEFF and HOEKSTRA, JJ.

PER CURIAM.

In this premises-liability action, plaintiff appeals as of right the trial court's grant of summary disposition in favor of defendants. We affirm.

While plaintiff was shopping, he slipped on crushed green grapes or green grape residue on the floor of defendants' grocery store. Plaintiff began to fall, reached for his shopping cart, and sustained injuries. The trial court granted summary disposition in favor of defendants pursuant to MCR 2.116(C)(10), ruling that the slipping hazard posed by the crushed grapes or grape residue was open and obvious as a matter of law.

We review de novo a trial court's grant of summary disposition under MCR 2.116(C)(10). Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). The pleadings, affidavits, depositions, admissions, and other admissible documentary evidence submitted by the parties must be considered in the light most favorable to the nonmoving party. MCR 2.116(G)(5); DeBrow v. Century 21 Great Lakes, Inc. (After Remand), 463 Mich. 534, 538-539, 620 N.W.2d 836 (2001). Summary disposition is proper under MCR 2.116(C)(10) if the affidavits and other documentary evidence show that there is no genuine issue concerning any material fact and that the moving party is entitled to judgment as a matter of law. Quinto v. Cross & Peters Co., 451 Mich. 358, 362, 547 N.W.2d 314 (1996).

In a premises liability action, a plaintiff must prove (1) that the defendant owed a duty to the plaintiff, (2) that the defendant breached the duty, (3) that the defendant's breach of the duty caused the plaintiff's injuries, and (4) that the plaintiff suffered damages. Jones v. Enertel, Inc., 254 Mich.App. 432, 436-437, 656 N.W.2d 870 (2002). Generally, a premises possessor owes a duty to exercise reasonable care to protect an invitee from an unreasonable risk of harm caused by a dangerous condition on the land. Lugo v. Ameritech Corp., Inc., 464 Mich. 512, 516, 629 N.W.2d 384 (2001). However, the possessor of land is not an absolute insurer of an invitee's safety. Id. at 517, 629 N.W.2d 384. A premises possessor is generally not required to protect an invitee from open and obvious dangers. Id.; Bertrand v. Alan Ford, Inc., 449 Mich. 606, 612-613, 537 N.W.2d 185 (1995).

The test to determine if a danger is open and obvious is whether "an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection[.]" Novotney v. Burger King Corp. (On Remand), 198 Mich.App. 470, 475, 499 N.W.2d 379 (1993). Because the test is objective, this Court looks not to whether a particular plaintiff should have known that the condition was hazardous, but to whether a reasonable person in his or her position would have foreseen the danger. Joyce v. Rubin, 249 Mich.App. 231, 238-239, 642 N.W.2d 360 (2002).

Turning to the case at bar, plaintiff first argues that the slipping hazard posed by the crushed grapes or grape residue on defendants' floor was not open and obvious. We cannot agree. Plaintiff asserts that the crushed grape residue was green and brown in color and that the slipping hazard was therefore inconspicuous against the backdrop of the beige supermarket floor. He further asserts that the grape residue "was a film," "was at floor level," and "did not stick up above the floor." However, plaintiff also testified during his deposition that the crushed grapes were readily observable after he slipped and that he and several other people all noticed the existence of the crushed grapes and grape residue once they actually looked at the floor. Specifically, plaintiff testified that after he slipped, "I could see the grapes. And when the manager was there, you [sic] could see the grapes. The stock boy could see the grapes. The customers that had come around, they could see the grapes. It was no great mystery. There were grapes on the floor." Plaintiff also testified that nothing blocked his view of the supermarket floor immediately before his accident.

Plaintiff's contention that the crushed grapes and grape residue were not open and obvious is thus belied by his own deposition testimony. It is well settled that a party may not create an issue of material fact merely by contradicting his or her own deposition testimony. Klein v. Kik, 264 Mich.App. 682, 688, 692 N.W.2d 854 (2005); Dykes v. William Beaumont Hosp., 246 Mich.App. 471, 480-481, 633 N.W.2d 440 (2001). Plaintiff's own deposition testimony establishes that he would have noticed the potentially hazardous condition had he been paying attention. See Millikin v. Walton Manor Mobile Home Park, Inc., 234 Mich.App. 490, 497, 595 N.W.2d 152 (1999). Plaintiff failed to raise a genuine issue of fact concerning whether the grape residue on which he slipped was open and obvious. The trial court properly determined as a matter of law that the hazard posed by the crushed grapes or grape residue was an open and obvious danger.

Plaintiff also argues that the slipping hazard posed by the crushed grapes or grape residue was not readily apparent to him and that he could not have been expected to notice or observe the hazard. We disagree. Citing Jaworski v. Great Scott Supermarkets, Inc., 403 Mich. 689, 272 N.W.2d 518 (1978), plaintiff contends that a reasonably prudent shopper in a grocery store is neither required nor expected to observe all potentially dangerous conditions on the supermarket floor or in a supermarket aisle. In Jaworski, the plaintiff slipped on cottage cheese that was spilled on the defendant supermarket's floor. Id. at 695, 272 N.W.2d 518. Because of the light coloration of the supermarket floor, the cottage cheese was "relatively inconspicuous." Id. at 698, 272 N.W.2d 518. Our Supreme Court observed that "[w]hile ordinary prudence generally requires one to see that which is to be seen," "[w]e cannot accept the notion that a customer in a modern supermarket or department store should be under an obligation to see every defect or danger in his pathway." Id. at 699, 272 N.W.2d 518. The Jaworski Court also recognized that "`[t]he displays of merchandise in modern stores are so arranged and are intended to catch the customer's attention and divert him from watching the floor'" and that "`[t]he public does not expect to shop at its own risk and it is unreasonable to expect a person in a retail store to use the same degree of lookout as he would on a public street.'" Id., quoting Steinhorst v. H C Prange Co., 48 Wis.2d 679, 685-686, 180 N.W.2d 525 (1970). In sum, the Court concluded:

"[The d]efendant's store in this case was a `self-service' type store, in which its merchandise was displayed on counters or on shelves so that customers could inspect the merchandise as they walked in the aisles or passageways of the store. The storekeeper certainly intended that his customers would devote the major part of their attention to the merchandise which was being displayed, rather than to the floor to discover possible obstructions in the aisle, and in our opinion that circumstance must be considered in determining the degree of care which the storekeeper should use in maintaining safe passageways. A patron of a self-service type store, we think, is entitled to rely upon the presumption that the proprietor will see that the passageways provided for his use are reasonably safe, considering the fact that while using these passageways he may be devoting some of his attention toward inspecting the merchandise." [Id. at 699-700, 272 N.W.2d 518, quoting Provost v. Great Atlantic & Pacific Tea Co., Inc, 154 So.2d 597, 601-602 (La. App. 1963).]

The problem with plaintiff's assertion in this regard is that Jaworski was a contributory negligence case. See Jaworski, supra at 696-697, 272 N.W.2d 518. The issue in Jaworski was not whether the defendant supermarket owed the plaintiff a duty, but whether the plaintiff was contributorily negligent in failing to observe and avoid slipping on the spilled cottage cheese. See Clark v. Kmart Corp. (On Remand), 249 Mich.App. 141, 152, 640 N.W.2d 892 (2002); Charleston v. Meijer, Inc., 124 Mich.App. 416, 419, 335 N.W.2d 55 (1983). The doctrine of contributory negligence has been abrogated since our Supreme Court's decision in Jaworski, see Placek v. Sterling Hts., 405 Mich. 638, 275 N.W.2d 511 (1979), and this Court has suggested that the reasoning of Jaworski — holding that the plaintiff was not contributorily negligent for failing to observe and avoid the spilled cottage cheese—is no longer relevant under the doctrine of comparative negligence, Charleston, supra at 419, 335 N.W.2d 55. The Charleston Court observed that with the advent of comparative negligence in Michigan, "[t]he trend is towards allowing all issues [concerning the plaintiff's alleged negligence], when supported by the facts, to go to the jury. . . ." Id.

The issue in the case at bar is not whether plaintiff was comparatively negligent in failing to observe and avoid the crushed grapes or grape residue on defendants' floor. Instead, the issue is whether defendants owed plaintiff a duty in the first instance. We readily concede that shoppers in modern grocery stores are often distracted by displays and merchandise. But mere distractions are not sufficient to prevent application of the open and obvious danger doctrine. Lugo, supra at 522, 629 N.W.2d 384. Instead, to prevent application of the...