McCarver v. Target Corp.

• Decision Date: 21 February 2023
• Docket Number: CIVIL 21-11591
• Parties: JEFFREY McCARVER, Plaintiff, v. TARGET CORPORATION, a Foreign Profit Corporation, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

JEFFREY McCARVER, Plaintiff, v. TARGET CORPORATION, a Foreign Profit Corporation, Defendant.

CIVIL No. 21-11591

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

February 21, 2023

OPINION AND ORDER GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 26)

LINDA V. PARKER, U.S. DISTRICT JUDGE.

On June 2, 2021, Plaintiff Jeffrey McCarver (“Plaintiff”) filed the instant action against Defendant Target Corporation (“Defendant”) in the Wayne County Circuit Court. (ECF No. 1-2 at Pg ID 9.) In the Complaint, Plaintiff appears to allege claims of premises liability and ordinary negligence, and seeks damages in excess of $25,000 for injuries he sustained when he slipped and fell in one of Defendant's stores. On July 7, 2021, Defendant removed the case pursuant to 28 U.S.C. § 1446(c)(2)(A)(ii) and (3)(A). (ECF No. 1.) Presently before the Court is Defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. (ECF No. 26.) The matter has been fully briefed. (ECF Nos. 27 and 28.) Finding the facts and legal arguments sufficiently presented by the parties, the Court is dispensing with oral argument with respect to the parties' motions pursuant to Eastern District of Michigan Local Rule 7.1(f). For the reasons stated hereafter, the Court grants in part Defendant's motion for summary judgment.

BACKGROUND

This action arises out of an incident that took place on March 18 2019, at Defendant's store in Dearborn, Michigan. (ECF No. 1-2 ¶ 7, Pg ID 10.) In his Complaint, Plaintiff alleges that while walking inside Defendant's premises he

. . . suddenly and without warning, [] slipped and fell on a slippery, transparent liquid substance that had been allowed to accumulate on the floor for an unreasonable length of time, which blended with the color and contour of the floor[,] and which caused Plaintiff to sustain serious and disabling injuries . . .

(ECF No. 1-2 ¶ 7, Pg ID 10.) Plaintiff's alleged injuries include but are not limited to, a closed head injury, cognitive deficits, injuries to hips, severe shock severe humiliation, severe and persistent pain, and loss of full ability to perform the normal vocational and avocational activities of life. (ECF No. 1-2 ¶ 10, Pg ID 11.) Accordingly, Plaintiff alleges a claim of premises liability against Defendant. That liability, Plaintiff contends, is due to Defendant:

a. Allowing the transparent, wet, slippery condition to remain on the floor for an unreasonable period of time;

b. Failing to mop, clean and/or inspect the area, thereby negligently and carelessly increasing said hazardous condition;

c. Negligently and carelessly failing to keep the area in a condition fit for its intended and foreseeable use and allowing said camouflaged hazard to remain in the area where customers were known to traverse; [and]

d. Failing to warn business invitees and others of the dangerous and hazardous condition on their premises.

(ECF No. 1-2 ¶ 10, Pg ID 11.) Plaintiff also alleges an ordinary negligence claim against Defendant for the alleged negligent actions/inactions of its employees, pursuant to the doctrine of respondeat superior. (ECF No. 1-2 ¶ 11, Pg ID 11.)

APPLICABLE STANDARD

Summary judgment pursuant to Rule 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 when evaluating a summary judgment motion 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 (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 (1986).

The movant has the initial burden of showing “the absence of a genuine issue of material fact.” Id. at 323. 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 Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (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. The court must accept as true the non-movant's evidence and draw “all justifiable inferences” in the non-movant's favor. Id. at 255.

ANALYSIS

The parties agree that Plaintiff's claims are governed by Michigan law in this diversity action. Guthre v Lowe's Home Ctrs., Inc., 204 Fed.Appx. 524, 525 (6th Cir. 2006).

i. Ordinary Negligence Claim

Defendant contends that this is a premises liability action only. (ECF No. 26 at Pg ID 253.) In response, Plaintiff maintains he is entitled to relief under both premises liability and ordinary negligence. (ECF No. 27 at Pg ID 424 and 434.) Defendant does not address Plaintiff's claim of ordinary negligence in its motion or reply.

Plaintiff is correct that “Michigan law distinguishes between claims of ordinary negligence and claims premised on conditions of land.” Radney-Maxwell v. Menard, Inc., No. 221CV11851TGBKGA, 2023 WL 318444, at *2 (E.D. Mich. Jan. 19, 2023) (citing Buhalis v. Trinity Continuing Care Servs., 822 N.W.2d 254, 258 (Mich App. 2012).

A claim for ordinary negligence is based on the underlying premise that a person has a duty to conform his or her conduct to an applicable standard of care when undertaking an activity. A premises liability claim, meanwhile, arises solely from a defendant's duty as an owner or occupier of a premises.

Id. (internal quotations and citations omitted).

Importantly, however, claims for both premises liability and ordinary negligence may only be maintained in certain circumstances. Radney-Maxwell v. Menard, Inc., No. 221CV11851TGBKGA, 2023 WL 318444, at *3 (E.D. Mich. Jan. 19, 2023). For example, the Michigan Court of Appeals has found both a claim of premises liability and ordinary negligence in circumstances where there is specific conduct by a defendant that led to the injury, in addition to a hazard on its premises. Id. See Pernell v. Suburban Motors Co., Inc., 2013 WL 1748573 (Mich. App. Apr. 23, 2013) (holding that plaintiff could maintain a claim of ordinary negligence in addition to premises liability where an employee of the auto dealership led her to the area where the potentially dangerous accumulation of fluids was); Sundberg v. Oberstar, Inc., 2020 WL 6685075 (Mich. App. Nov. 12, 2020) (holding that plaintiff could maintain a claim of both premises liability and ordinary negligence where the employee negligently directed plaintiff towards the dangerous drop-off area after inquiring where the bathroom was located). “Simply alleging that [the] defendant created the condition does not ‘transform the claim into one for ordinary negligence.” Radney-Maxwell, 2023 WL 318444, at * 3 (citing Jahnke v. Allen, 865 N.W.2d 49, 51-52 (Mich. App. 2014) and Buhalis, 822 N.W.2d at 254) (internal quotations omitted). In other words, to survive summary judgment based on an ordinary negligence claim in a slip and fall context, a plaintiff must present facts that a defendant or its employees engaged in “affirmative conduct” that “caused or contributed to plaintiff's injury.” Ramadan v. Home Depot, Inc., 504 F.Supp.3d 695, 706 (E.D. Mich. 2020) (quoting England v. Meijer, Inc. No. 322065, 2015 WL 6161735, at *4 (Mich. Ct. App. Oct. 20, 2015) (holding that plaintiff could not bring an ordinary negligence claim by alleging that “defendant had a duty to clean up a spill within a reasonable time.”).

The Complaint does not adequately delineate between Plaintiff's claims of premises liability and ordinary negligence-allegations of conditions on the land versus discrete conduct. See e.g., Ramadan, 504 F.Supp.3d at 707. In seeking summary judgment, Defendant only addresses premises liability. Regardless, a review of the record produces no evidence or allegations of any affirmative conduct by a Target employee that would give rise to a claim for ordinary negligence. Therefore, Plaintiff must show cause within 14 days as to why his claim of ordinary negligence should not be dismissed.

ii. Premises Liability Claim

Next, Defendant contends that Plaintiff's premises liability claim fails because the substance over which Plaintiff tripped was “open and obvious.” The duty a landowner owes an individual that enters their land depends upon whether that individual is a trespasser, licensee, or invitee. Hall v. IKEA Prop. Inc., 171 F.Supp.3d 634, 641 (E.D. Mich. 2016) (citing Schultz v. Consumers Power Co., 506 N.W.2d 175 (Mich. 1993)). Both parties agree that Plaintiff was an invitee. (Def.'s Mot., ECF No. 26 at Pg ID 262; Pl.'s Resp. Br., ECF No. 27 at Pg ID 424.)

“Generally, the landowner's duty is to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land.” Mosqueda v. Fam. Dollar Stores of Michigan, LLC, 592 F.Supp.3d 616, 621 (E.D. Mich. 2022) (citing Bertrand v. Alan Ford, Inc., 537 N.W.2d 185, 186 (Mich. 1995)). However, “ . . . that duty generally does not include protection from “open and obvious” dangers.” Id. (citing Lugo v. Ameritech Corop., 629 N.W.2d 384, 386 (Mich. 2001). As summarized by the Michigan Supreme Court:

[I]f the particular activity or condition creates a risk of harm only because the invitee does not discover the

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