Mosqueda v. Family Dollar Stores of Mich., LLC

Decision Date22 March 2022
Docket NumberCase No. 1:21-cv-10245
Parties Martha MOSQUEDA, Plaintiff, v. FAMILY DOLLAR STORES OF MICHIGAN, LLC, Defendant.
CourtU.S. District Court — Eastern District of Michigan

Joseph F. Lucas, Skupin & Lucas, Detroit, MI, for Plaintiff.

Mary R. Benedetto, Lisa T. Milton, Bowen, Radabaugh & Milton, P.C., Troy, MI, for Defendant.


THOMAS L. LUDINGTON, United States District Judge

Defendant Family Dollar has filed a motion for summary judgment, ECF No. 15, and a motion to exclude Plaintiff Martha Mosqueda's expert witness, ECF No. 12. As explained hereafter, Defendant's Motion for Summary Judgment will be granted and denied in part, and Defendant's Motion to Exclude will be granted.


On March 3, 2019, Plaintiff Martha Mosqueda, a disabled person, visited the Family Dollar on Genesee Avenue in Saginaw, Michigan. She parked in a disabled-parking space with no disabled-parking sign, exited her vehicle, and walked around the front of her car to enter the store. A remnant of the disabled-parking sign caught her foot and tripped her. Among other injuries, she scraped her knee and sprained her pinky finger.

In November 2020, she filed a complaint in the Tenth Circuit Court for the County of Saginaw. ECF No. 1 at PageID.8–11. Amended in January 2021, the three-count complaint alleges that Defendant Family Dollar is liable under common-law premises liability, the Americans with Disabilities Act (ADA), 42 U.S.C. § 1201 et seq. , and Michigan's Persons with Disabilities Civil Rights Act (MPDCRA), MICH. COMP. LAWS § 37.1101 et seq. ECF No. 1 at PageID.15–21. That liability, she contends, hinges on Defendant "leaving a 1–2[ inch] stump projecting above a sidewalk surface and creating a trip hazard in the path of travel to the entrance door," which tripped her and caused her injuries. See ECF No. 1 at PageID.15–21. Eleven days later, Defendant removed the case to federal court. See id. at PageID.1–3.

On August 17, 2021, Plaintiff's expert, professional inspector Jeffrey E. Bartrem, visited the Family Dollar to assess the alleged violations and create an expert report. ECF No. 12-11 at PageID.154. Three months later, Defendant filed a motion to exclude Mr. Bartrem from testifying, ECF No. 12, which has been fully briefed, ECF Nos. 14; 19. Three weeks later, Defendant also filed a motion for summary judgment on all three counts, ECF No. 15, which has been fully briefed, ECF Nos. 23; 24. The Motion for Summary Judgment will be addressed in Part II, and the Motion to Exclude will be address in Part III.


Defendant has filed a motion for summary on all three counts. ECF No. 15.


A motion for summary judgment should be granted 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 movant has the initial burden of "identifying those portions of [the record that] it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmovant, who must set out specific facts showing "a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation omitted). The nonmovant must show more than "some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Indeed, the "mere existence of a scintilla of evidence" in support of the nonmovant does not establish a genuine issue of material fact. Liberty Lobby , 477 U.S. at 252, 106 S.Ct. 2505.

The court must review the evidence and draw all reasonable inferences in favor of the nonmovant to determine "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." Id. at 251–52, 106 S.Ct. 2505 ; see Lossia v. Flagstar Bancorp, Inc. , 895 F.3d 423, 428 (6th Cir. 2018).

Summary judgment will be granted if the nonmovant "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. , 477 U.S. at 322, 106 S.Ct. 2548. But summary judgment will be denied "[i]f there are ... ‘genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.’ "

Hancock v. Dodson , 958 F.2d 1367, 1374 (6th Cir. 1992) (citation omitted).


Defendant contends that Plaintiff's premises-liability claim fails because the object over which Plaintiff tripped was "open and obvious," and because Plaintiff cannot prove that Defendant had notice of the object. ECF No. 15 at PageID.288, 299–314.

"Landowners owe the greatest duty of care to invitees as a class." Bragan ex rel. Bragan v. Symanzik , 263 Mich.App. 324, 687 N.W.2d 881, 889 (2004). 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. Bertrand v. Alan Ford, Inc. , 449 Mich. 606, 537 N.W.2d 185, 186 (1995). But that duty generally does not include protection from "open and obvious" dangers. Lugo v. Ameritech Corp. , 464 Mich. 512, 629 N.W.2d 384, 386 (2001). However, if there are "special aspects" of a condition that make an "open and obvious" danger "unreasonably dangerous," the premises possessor must take reasonable precautions to protect invitees from such danger. Id. at 386–87. To determine whether a condition is "open and obvious," or whether there are "special aspects" that render an "open and obvious" condition "unreasonably dangerous," the factfinder must apply the objective "reasonably prudent person" standard. Id. To that end, the factfinder must consider the "condition of the premises," not the plaintiff's "subjective degree of care." Id. at 518 n.2, 524. In this way, a disabled person is held to the same standard of reasonable conduct as a nondisabled person. See Mann v. Shusteric Enters. , 470 Mich. 320, 683 N.W.2d 573, 577 (2004).


Defendant first asserts that it had no legal duty to Plaintiff because the remnant of the post was open and obvious to a reasonable person. ECF No. 15 at PageID.303–05. According to Defendant, a reasonably prudent person would have discovered the remnant upon casual inspection. Id. at PageID.305–11.

"[W]here the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, an invitor owes no duty to protect or warn the invitee unless he should anticipate the harm despite knowledge of it on behalf of the invitee." Riddle v. McLouth Steel Prods. Corp. , 440 Mich. 85, 485 N.W.2d 676, 681 (1992). To determine if a danger is open and obvious, the relevant inquiry 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. , 198 Mich.App. 470, 499 N.W.2d 379, 381 (1993). If reasonable minds could differ as to whether a risk is open and obvious, "the obviousness of risk must be determined by the jury." Glittenberg v. Doughboy Recreational Indus. , 441 Mich. 379, 491 N.W.2d 208, 217 (1992) ; Vella v. Hyatt Corp. , 166 F. Supp. 2d 1193, 1198 (E.D. Mich. 2001).

The factual predicate for Defendant's argument that the remnant was open and obvious is that Plaintiff saw it after she fell. ECF No. 15 at PageID.305. Plaintiff responds that the common-law doctrine for an open-and-obvious danger is overridden by the ADA, because a violation of the ADA can establish negligence per se. See ECF No. 23 at PageID.526–29 (citing Smith v. Wal-Mart Stores, Inc. , 167 F.3d 286 (6th Cir. 1999) ). Defendant replies that a statutory duty does not override the open-and-obvious requirement. See ECF No. 24 at PageID.708–10.

There is a genuine question of fact as to whether the remnant was open and obvious to a reasonable person. See ECF No. 15-5 at PageID.358. Plaintiff testified that, after she fell, she noticed the shadow of her car was concealing the remnant, which she thought might be why she did not see it. Two photographs showing a car shadow cast over the remnant corroborate Plaintiff's testimony. See ECF No. 15-7 at PageID.369, 370. Moreover, a third photograph demonstrates that the remnant is barely a shoe sole high and shares a substantially similar grey-colored hue with the concrete sidewalk below it. See id. at PageID.371. And the remnant resembles but is smaller than a caltrop,1 which is an almost imperceivable weapon that police often use to pop the tires of fleeing drivers. See id. Drawing all reasonable inferences in Plaintiff's favor based on these facts, there is a genuine question as to whether the remnant was open and obvious to a reasonably prudent person.


Defendant also asserts that, even if the remnant was an open-and-obvious danger, it was not unreasonably dangerous. See ECF No. 15 at PageID.300–03. Defendant adds that there were no special aspects about the remnant's risk. See id. at PageID.311–13. Defendant principally likens the remnant to a garden hose, which the Michigan Court of Appeals found was neither unavoidable nor created a high likelihood of injury. See id. at PageID.301–02 (citing Dover v. Westchester Ltd. Dividend Hous. Ass'n , No. 258654, 2006 WL 1083916, at *4 (Mich. Ct. App. Apr. 25, 2006) (unpublished) (per curiam)). Defendant also likens the remnant to a pothole. See id. at PageID.301 (citing Lugo , 629 N.W.2d at 388 ).

"[I]f special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to...

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