Sherman v. Speedway, LLC

Decision Date10 April 2023
Docket Number22-1545
PartiesLISA SHERMAN, Plaintiff-Appellant, v. SPEEDWAY, LLC, a foreign Limited Liability Company, operating in Michigan, Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit



Before: SUTTON, Chief Judge; BATCHELDER and MURPHY, Circuit Judges.



When Lisa Sherman tripped over the raised edge of a sidewalk slab at a Speedway gas station, she fell and broke her hip. She then sued Speedway, claiming premises liability. Speedway moved for summary judgment, arguing that the uneven sidewalk was open and obvious, and the district court agreed.

When the district court grants summary judgment, our review is de novo. Goodman v. J.P. Morgan Inv. Mgmt., Inc., 954 F.3d 852, 859 (6th Cir. 2020). Because this was a Michigan statelaw action that was removed to federal court pursuant to diversity jurisdiction, 28 U.S.C. §§ 1332 &1441, Michigan law governs. See Erie R.R. Co. v Tompkins, 304 U.S. 64, 78 (1938).

Michigan "law has long stated that [a] minor differential height difference in sidewalks is not unexpected." Becker v. Enter. Leasing Co. of Detroit LLC, 2021 WL 4238280 at *2 (Mich. Ct. App. Sept. 16, 2021) (per curiam) (citing Weakley v City of Dearborn Heights, 612 N.W.2d 428 431 (Mich. Ct. App. 2000)). "Sidewalks with slight height differentials between the cement slabs are fairly common and the condition is readily avoided by simply stepping over or around the slight elevation." Ricevuto v. Washtenaw Ave. Bookstore, L.L.C., 2010 WL 3239103, at *2 (Mich. Ct. App. Aug. 17, 2010) (citing Lugo v. Ameritech Corp., 629 N.W.2d 384, 387 (Mich. 2001)). "[L]ike ordinary steps and potholes, deteriorating sidewalk joints and various imperfections in a concrete walking surface are ordinary features that people frequently encounter during the course of their everyday lives and that can be easily observed by a reasonably prudent person." Dorsey v. Taubman Auburn Hills Assocs., 2017 WL 1367162, at *3 (Mich. Ct. App. Apr. 13, 2017) (per curiam) (first citing Lugo, 629 N.W.2d at 389-90, then citing Bertrand v. Alan Ford, Inc., 537 N.W.2d 185, 189-90 (Mich. 1995)); see also Metzler v. GSM Am., Inc., 2017 WL 461607 (Mich. Ct. App. Feb. 2, 2017) (per curiam); Solano v. Standard Fed. Bank, 2003 WL 462407 (Mich. Ct. App. Feb. 21, 2003) (per curiam); Walker v. Int'l Manor, Inc., 2001 WL 1004274 (Mich. Ct. App. Aug. 31, 2001) (per curiam). Each of these cases concluded that uneven sidewalk slabs are commonplace and pose no hidden danger. But at least one Michigan case holds otherwise. See Siorakes v. Target Corp., 2011 WL 1564616, at *3 (Mich. Ct. App. Apr. 26, 2011) ("We conclude that reasonable minds viewing the photographs could differ with respect to whether the area of sidewalk discontinuity qualified as open and obvious to a reasonable invitee on casual inspection."). In this light, we analyze Sherman's claim.

Under Michigan law, a business "owes a duty to use reasonable care to protect invitees from unreasonable risks of harm posed by dangerous conditions" on the property, but "owes no duty to protect or warn of dangers that are open and obvious because such dangers, by their nature, apprise an invitee of the potential hazard, which the invitee may then take reasonable measures to avoid." Hoffner v. Lanctoe, 821 N.W.2d 88, 94 (Mich. 2012) (footnote omitted; emphasis added) (quoting Riddle v. McLouth Steel Prods. Corp., 485 N.W.2d 676, 681 (Mich. 1992)); accord Est. of Livings v. Sage's Inv. Grp., LLC, 968 N.W.2d 397, 402 (Mich. 2021).

"[A] danger is open and obvious" if "an average person with ordinary intelligence would have discovered it upon casual inspection." Hoffner, 821 N.W.2d at 94-95 (footnote citation omitted). Two related aspects of this test warrant mention. One, "[t]his is an objective standard, calling for an examination of 'the objective nature of the condition of the premises.'" Id. at 95 (footnote omitted) (quoting Lugo, 629 N.W.2d at 390). And two, but for the "special aspects exception" (discussed below), this is a legal determination for the court, not a finding of fact for the jury. Id. at 103 ("Because the issue of the openness and obviousness of a hazard is an 'integral part' of the question of duty, establishing whether a duty exists in light of the open and obvious nature of a hazard is an issue within the province of the court." (footnote omitted)); accord Jeffrey-Moise v. Williamsburg Towne Houses Coop., Inc., 971 N.W.2d 716, 727 &n.3 (Mich. Ct. App. 2021) ("[T]he application of the open and obvious danger doctrine is part of the question of duty that is a question of law for the court to decide.") (citing Buhalis v. Trinity Continuing Care Servs., 822 N.W.2d 254, 258-59 (Mich. Ct. App. 2012)).

In this appeal, Sherman contends that genuine issues of material fact invalidate the grant of summary judgment to Speedway. But the only so-called "fact" that she disputes is the court's legal determination that any danger posed by Speedway's uneven sidewalk was open and obvious. Specifically, she contends that the jointly submitted photos (19 in all), whether viewed altogether or individually,[1] do not show what they show; that the testimony does not say what it says; and that her two proffered experts were indispensable (more on this in a moment). Contrary to Sherman's contentions, this was an ordinary sidewalk with a commonly occurring height differential (of 7/8 inch) between two of the slabs, where she tripped. There are no underlying facts in dispute. Moreover, "an average person with ordinary intelligence would have discovered [this section of uneven sidewalk] upon casual inspection." See Hoffner, 821 N.W.2d at 94-95 (footnote omitted). The record photos and testimony fully support this assessment of the objective conditions.

Sherman, however, believes that the task of assessing an ordinary sidewalk-to decide whether the danger posed by two uneven slabs is "open and obvious" or "hidden"-is beyond the ability of a judge (or juror), and therefore requires an expert's analysis, report, and testimony. See Fed. R. Evid. 702(a) (allowing for expert evidence that will assist the fact-finder in understanding the facts and circumstances of these events in an environment which is beyond the common knowledge of a lay person); see also United States v. Thomas, 74 F.3d 676, 684 n.6 (6th Cir. 1996) (holding that expert evidence is improper when it "addresses matters within the understanding or common knowledge of the average juror or invades the province of jury") (abrogated on other grounds by Gen. Elec. Co. v. Joiner, 522 U.S. 136 (1997)).

So, Sherman retained and proffered two experts: one to opine that the uneven sidewalk slab "is not readily apparent to an ordinary pedestrian upon casual inspection traversing the sidewalk," and the other to opine that "[a] sidewalk should have an even surface or profile," based on the Americans with Disabilities Act, the Michigan Rehabilitation Code, and their respective guidelines, along with other codes and guidelines. The district court rejected this expert testimony as unnecessary, explaining that: "Everyone who has ever walked on a sidewalk . . . has experienced encountering adjoining cement sidewalk slabs with differing heights."

As a general matter, it would be difficult to refute the district court's practical point. It would be extraordinary to find an ambulatory adult person who has never walked on an uneven sidewalk and is therefore baffled by the prospect of assessing whether the raised edge between two slabs is open and obvious. Moreover, the particular test for an open and obvious danger, see Hoffner, 821 N.W.2d at 94-95 (whether "an average person with ordinary intelligence would have discovered it upon casual inspection" (footnote citation omitted)), leaves little room for expert evidence even if it does not bar it outright. Although hard to imagine, there might exist circumstances so unique or unusual that either a judge or "an average person with ordinary intelligence" could not perform a "casual inspection" and reach a conclusion. But that is not this case. If expert evidence were warranted in this case, then expert evidence would be warranted in every case involving a claim that the danger from an uneven sidewalk was open and obvious. That is contrary to common sense, Rule 702(a), and its associated case law. See, e.g., Meemic Ins. Co. v. Hewlett-Packard Co., 717 F.Supp.2d 752, 767 (E.D. Mich. 2010) ("[The expert]'s visual examination and conclusion that the damage on the AC power adapter was much more severe than anything else, is certainly a matter within the understanding or common knowledge of the average juror and invades the province of jury." (quotation marks and editorial brackets omitted)). Given that the ultimate question of whether an uneven sidewalk is open and obvious is a legal issue for the court to decide, an expert's conclusion on that question similarly invades the province of the judge. See Berry v. City of Detroit, 25 F.3d 1342, 1353-54 (6th Cir. 1994).

Returning to the present analysis, there exists "a limited exception to the circumscribed duty owed for open and obvious hazards, [by which] liability may arise when special aspects of a condition make even an open and obvious risk unreasonable." Hoffner, 821 N.W.2d at 95.

This [Michigan Supreme] Court has discussed two instances in which the special aspects of an open and obvious hazard could give rise to liability: when the danger is unreasonably dangerous or when the danger is effectively unavoidable. In either circumstance, such dangers are those that give rise to a uniquely high likelihood of harm

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