Kessler v. Visteon Corp.

• Decision Date: 31 March 2006
• Docket Number: No. 04-2056.,04-2056.
• Parties: Howard H. KESSLER; Jacqueline A. Kessler, Plaintiffs-Appellants, v. VISTEON CORPORATION, a Delaware Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 326

448 F.3d 326

Howard H. KESSLER; Jacqueline A. Kessler, Plaintiffs-Appellants, v. VISTEON CORPORATION, a Delaware Corporation, Defendant-Appellee.

No. 04-2056.

United States Court of Appeals, Sixth Circuit.

Argued: December 2, 2005.

Filed March 31, 2006^*.

ARGUED: Richard L. Steinberg, Detroit, MI, for Appellants. John R. Trentacosta, Foley & Lardner, Detroit, MI, for Appellee. ON BRIEF: Richard L. Steinberg, Detroit, MI, for Appellants, John R. Trentacosta, Jenice C. Mitchell, Foley & Lardner, Detroit, MI, for Appellee.

Before BOGGS, Chief Judge; BATCHELDER; Circuit Judge; and KATZ, District Judge.^**

PER CURIAM.

Plaintiffs-Appellants, Howard H. Kessler and his wife, Jacqueline A. Kessler ("Kessler"), appeal the decision of the district court granting summary judgment to the defendant, Visteon Corporation ("Visteon"), on their negligence claims. While making a business visit to a Visteon plant, Kessler was struck by a forklift driven by a Visteon employee. He sought damages for injuries sustained in the accident and his wife presented claims for loss of consortium. The district court, applying Michigan law, found on summary judgment that Visteon did not owe Kessler a duty of care because of the open and obvious nature of the hazard. We reverse. The district court erroneously combined and dismissed two distinct allegations of unreasonable risk of harm when it dismissed the danger as open and obvious. We hold that 1) Visteon, through its employee, owed Kessler a duty of care to operate its machinery in a reasonably safe manner and 2) Kessler has raised a genuine issue of material fact as to whether the operation of a forklift in proximity to pedestrians on the loading dock that day is an open and obvious activity that presents special aspects of danger under Michigan law.

I

Visteon is in the business of assembling automotive components. Until recently, it was part of the Ford Corporation. On November 6, 2000, Kessler was injured when he approached an operating powered material handling vehicle ("PMHV"), commonly known as a hi-lo or a forklift. The PMHV, moving in reverse, rolled over and broke Kessler's foot, and its counterweight struck him in the leg, knocking him over. Kessler was working for Dakota Leasing/Short Freight Lines ("Dakota"), a company that provides transportation services to and from Visteon's Utica facility, the site of the accident.

Kessler was a regular visitor to the Utica plant at the time of the accident. He made a "dedicated run" to the plant, five days a week. On the day of the accident, Kessler was delivering a load of dashboards for the Ford Taurus. He arrived between shifts, at about 4:00 pm, and spent some time in the plant's lounge waiting for assistance. He walked through the facility to find a Visteon employee to unload his trailer, which he parked near the fully occupied loading dock. Upon entering the loading dock, he saw Michael J. Hyde, a Visteon employee, using a PMHV to unload another Dakota trailer. The trailer in question was not Kessler's, so, in an attempt to inform Hyde that he should be unloading a different trailer, Kessler approached, and was struck by the vehicle.

On February 19, 2003, Kessler filed his complaint alleging, inter alia, that Visteon had been negligent in its ownership and maintenance of the PMHV, that Visteon's employee had been negligent in the operation of the PMHV, and that these breaches of duty had resulted in severe, permanent, and irreversible injury to Kessler. He prayed for compensatory damages. On March 11, 2003, Visteon answered the complaint and asserted several affirmative defenses, including comparative negligence, failure to state a claim, and that the danger was open and obvious.

During discovery, the following evidence was produced: The Utica plant is approximately two million square feet in size. In this large facility, pedestrians share space with PMHVs. In 1994, over twenty "significant" harmful events occurred involving PMHVs and pedestrians in Visteon plants, four resulting in permanent disability. Before the accident that is the subject of this case, Visteon began a safety campaign to eliminate the dangers posed by men and machine working so closely together. The program included pedestrian safety training, increased pedestrian visibility through reflective vests on employees, and marking aisles for pedestrian and vehicular traffic, creating "green" and "red" zones. Truck drivers like Kessler who visit the plant now watch a pedestrian safety video. The loading dock where Kessler was hit is now a pedestrian red zone, a marked area with signs, where "pedestrians are not expected to be." Visteon's training videotapes, and safety standards promulgated by both the Michigan Occupational Safety and Health Administration and the American Society of Mechanical Engineers, all state that safe operation is the responsibility of a PMHV operator, that pedestrians have the right of way, and that an operator should always look in the direction of travel. The deposition of Hyde revealed that he had viewed the videotapes and that none of the Visteon PMHVs that he operated sounded an audible warning when moving in reverse.

On December 3, 2003, Visteon moved for summary judgment. It argued that no duty was owed to Kessler where the danger presented by the operating PMHV was open and obvious. On December 22, 2003, Kessler filed a response to the motion, asserting that the open and obvious nature of the danger was irrelevant where Visteon's operator owed Kessler a duty of care to operate and maintain its PMHV in a reasonably safe manner. Kessler noted that Visteon, in its brief, had failed to cite a single case where the open and obvious exception was applied to the conduct of a defendant and not to a condition on the land. On June 30, 2004, the district court entered summary judgement for Visteon on all claims. Kessler v. Visteon, No. 03-70700 (E.D. Mich. June 30, 2004).

On July 2, 2004, Kessler moved for reconsideration under Rule 59(e). See Fed. R.Civ.P. 59(e). He also moved to certify the question to the Michigan Supreme Court, arguing that the validity of Visteon's defense was a question of first impression. See Mich. Ct. R. § 7.305(b) (allowing federal judges to certify questions to the Michigan Supreme Court). Both motions were denied. Kessler v. Visteon, No. 03-70700 (E.D.Mich. July 21, 2004) (denying motion to reconsider); Kessler v. Visteon, No. 03-70700 (E.D.Mich. Aug. 11, 2004) (denying motion to certify). On August 19, 2004, Kessler timely filed his notice of appeal. See Fed. R.App. P. 4.

II

Jurisdiction in the district court was proper due to the diversity of the parties and the amount in controversy. See 28 U.S.C. § 1332. Kessler is a citizen of the state of Ohio and Visteon is a corporation organized and chartered under the laws of Delaware with its principal place of business in Michigan. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review a grant of summary judgment de novo. Williams v. Ford Motor Co., 187 F.3d 533, 537-38 (6th Cir.1999). Summary judgment is appropriate where "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 a judgment as a matter of law." Fed.R.Civ.P. 56(c). In reviewing a grant of summary judgment, the evidence must be viewed in the light most favorable to the opposing party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). That party cannot rest on its pleading or allegations, to prevail they must present material evidence in support of their allegations. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A mere scintilla of evidence is insufficient; there must be evidence on which the jury could reasonably find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In this case, jurisdiction is founded upon diversity of citizenship pursuant to 28 U.S.C. § 1332(a)(1). Accordingly, we apply state law as decided by the Michigan Supreme Court. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); State Farm Fire and Cas. Co. v. McGowan, 421 F.3d 433, 436 (6th Cir.2005). If the Michigan Supreme Court has not yet addressed the issue presented, we must predict how it would rule, by looking to "all relevant data," including state appellate decisions. Kingsley Assocs., Inc. v. Moll PlastiCrafters, Inc., 65 F.3d 498, 507 (6th Cir.1995) (citing Bailey v. V & O Press Co., Inc., 770 F.2d 601, 604 (6th Cir.1985)); See also Owens Corning v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 257 F.3d 484, 491 (6th Cir.2001). "[I]n all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court." Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945); See also Powell v. Jacor Comm. Corp., 320 F.3d 599, 602-03 (6th Cir.2003).

III

A

We first examine whether Visteon owed Kessler a duty of care from its employee's conduct and operation of the PMHV in its loading dock. The first element of an action in negligence is duty. See Riddle v. McLouth Steel Prods. Corp., 440 Mich. 85, 485 N.W.2d 676, 681 n. 10 (1992); W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 30 (5th ed.1984) [hereinafter Prosser & Keeton]. "Duty exists because the relationship between the parties gives rise to a legal obligation." Bertrand v. Alan Ford, Inc., 449 Mich. 606, 537 N.W.2d 185, 188 (1995); See also Maiden v. Rozwood, 461 Mich. 109, 597 N.W.2d 817, 829 (1999). Duty is an obligation "to...