Opinion
Case No. 2:03-CV-177.
February 4, 2005
OPINION
Plaintiff, Walter Labhart ("Labhart"), has sued Defendant, United States of America ("Government"), under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671- 2680. Labhart alleges that he suffered a serious injury to his right knee after he slipped on wet steps while exiting the United States Post Office building in Marquette, Michigan. The Government has moved for summary judgment on the grounds that it did not breach any duty to Labhart because the condition was open and obvious and the acts of a Government employee were not the actual or proximate cause of Labhart's injury. For the reasons set forth below, the Court will deny the motion.
I. Facts
On November 30, 2001, at approximately 4:45 p.m., Labhart entered the Post Office building on Washington Street in Marquette, Michigan. Big flakes of snow were falling at the time, but the snow was light and the sidewalks and roads were clear. Labhart walked up the stairs and into the lobby. Labhart finished conducting his business several minutes later and left to exit the building by the same stairs he had used to enter the lobby. As Labhart was descending the stairs, his foot slipped on the edge of a stair and skidded down two stairs. His foot came to a sudden stop on the bottom landing. Labhart did not fall down, but the force of the landing caused damage to a tendon in Labhart's knee.
The stairs were terrazzo and did not have any static or friction non-skid strips installed on them. (Powell Dep. at 7-8, Pl.'s Resp. Br. Ex. 2.) Labhart testified that he looked up the stairs as he walked up them. (Labhart Dep. at 12, Pl.'s Resp. Br. Ex. 1.) He also testified that as he walked down the stairs, he was looking down and could see the treads on the stairs in his peripheral vision. (Id. at 16.) Labhart was using the hand rails located next to the stairs.
Following the accident, Michael Canadeo, the Postmaster, and Elizabeth Powell, a custodian at the Marquette Post Office, examined the stairs. They observed moisture on the stairs that had been tracked in from outside but there was no visible snow, ice, or standing water. (Powell Dep. at 9, 11; Canadeo Dep. at 14-15, Pl.'s Resp. Br. Ex. 3.) The stairs were mostly dry, and the moisture was not immediately apparent upon casual inspection. (Powell Dep. at 9; Canadeo Dep. at 15.) The appearance of the stairs did not indicate a slippery condition. (Canadeo Dep. at 15.)
II. Summary Judgment Standard
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. Material facts are facts which are defined by substantive law and are necessary to apply the law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986). A dispute is genuine if a reasonable jury could return judgment for the non-moving party.Id.
The court must draw all inferences in a light most favorable to the non-moving party, but may grant summary judgment when "the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Agristor Financial Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).
III. Discussion
In deciding a claim under the FTCA, a federal court applies "the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b); see also Sellers v. United States, 870 F.2d 1098, 1101 (6th Cir. 1989) (stating that "because all of the acts and omissions alleged here occurred in Michigan, the law of the state of Michigan applies"). The applicable law in this case, as the parties acknowledge, is Michigan law.
The parties do not dispute that Labhart occupied the status of a business invitee when he entered the Post Office. The general rule under Michigan law is that a landowner owes a duty to exercise reasonable care to protect an invitee "from an unreasonable risk of harm caused by a dangerous condition." Lugo v. Ameritech Corp., 464 Mich. 512, 516, 629 N.W.2d 384, 386 (2001). If the unsafe condition results from causes other than the active negligence of the owner or his employees, the landowner will be held liable if the condition is known to him "`or is of such a character or has existed a sufficient length of time that he should have knowledge of it.'" Serinto v. Borman Food Stores, 380 Mich. 637, 641, 158 N.W.2d 485, 486 (1968) (quoting Carpenter v. Herpolsheimer's Co., 278 Mich. 697, 698, 271 N.W. 575, 575 (1937)) (emphasis deleted). A landowner generally has no duty to remove open and obvious dangers. Lugo, 464 Mich. at 516, 629 N.W.2d at 386.
[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. Id. (quoting Riddle v. McLouth Steel Prods. Corp., 440 Mich. 85, 96, 485 N.W.2d 676, 681 (1992)) (internal citation and quotation omitted). The test for an open and obvious danger is whether an average user with ordinary intelligence would have been able to discover the danger and the risk presented upon casual inspection. Joyce v. Rubin, 249 Mich. App. 231, 238-39, 642 N.W.2d 360, 364 (2002). "Because the test is objective, courts look not to whether a particular plaintiff should have known that the condition was hazardous, but to whether a reasonable person in his position would foresee the danger." Kenny v. Kaatz Funeral Home, Inc., 264 Mich. App. 99, 106, 689 N.W.2d 737, 741 (2004) (citing Joyce, 249 Mich. App. at 238-39, 642 N.W.2d at 364).
The Government contends in its motion that Labhart used the same stairs to enter the building only minutes before the accident and, therefore, Labhart should have discovered the dangerous condition on the stairs because a person of average intelligence would have been able to discover the dangerous condition by using ordinary care. However, the evidence suggests that the water on the stairs was not immediately observable upon casual inspection, and it is doubtful that a reasonable person would have been able to ascertain the risk presented by the moisture on the stairs. Canadeo and Powell both testified that the stairs were damp but that the dampness could not be observed by casual inspection. (Canadeo Dep. at 15, Powell Dep. at 9.) There was no snow, ice, or standing water on the steps. (Canadeo Dep. 14-15; Powell Dep. at 8-9.) This evidence shows that the condition could not have been discovered upon a casual inspection, and, therefore, was not open and obvious. Thus, at a minimum, the evidence is such that a reasonable jury could conclude that the condition was not open and obvious. See Kenny, 264 Mich. App. at 108-09, 689 N.W.2d at 742-43 (holding that whether a reasonably prudent person would have slipped in the defendant's parking lot containing black ice covered by snow was a question for the jury); Herteg v. Somerset Collection GP, Inc., No. 227936, 2002 WL 31105000, at *6 (Mich.Ct.App. Sept. 20, 2002) (per curiam) (concluding that a reasonable jury could find that a small puddle of water on a shiny marble floor, which was described as "so transparent as to be virtually undetectable by casual inspection," would not have been discovered by a reasonable person).
Another issue the Government touches upon in its motion is the issue of notice to the Post Office. (Gov't Mem. Supp. at 8 ("Plaintiff does not acknowledge seeing anything which would have put him, or the United States Post Office, on notice that there was a dangerous condition on the stairway.").) A defendant is liable for an unsafe condition on its premises if: (1) that condition is caused by the active negligence of the defendant or its employees; or (2) the condition is of a nature that the defendant or one of its employees knew or should have known about it. Serinto, 380 Mich. at 640-41, 158 N.W.2d at 486. Notice may be established through the use of legitimate inferences from established facts, but conjecture is not sufficient. Berryman v. K Mart Corp., 193 Mich. App. 88, 92, 483 N.W.2d 642, 645 (1992). Notice can be inferred from evidence that the unsafe condition existed for a length of time sufficient to have allowed a reasonably careful landowner to discover it. See Clark v. K Mart Corp., 465 Mich. 416, 419, 634 N.W.2d 347, 348-49 (2001) (per curiam) (citing Serinto). Labhart has failed to cite any evidence supporting a reasonable inference that the Post Office was aware of the moisture on the stairs until after Labhart sustained the injury. Moreover, Labhart has not presented any evidence from which a jury might infer that the condition existed for a sufficient length of time to allow a reasonably careful landowner to discover it. Powell testified in her deposition that there was no "significant weather" that day. (Powell Dep. at 8.) Powell also recalled that it started to snow only at "the very end of the day." (Id. at 10.) Canadeo testified that it had been snowing outside but that the steps were mostly dry and there was no visible indication of a slippery condition. (Canadeo Dep. at 14-15.) Based upon this evidence, it is entirely possible that Labhart himself tracked in the moisture on the stairs only minutes prior to the accident when he walked up the stairs. But this, like any other conclusion, would be based upon speculation. Therefore, Labhart has failed to create a genuine issue of fact regarding notice.
In spite of Labhart's failure to show that the Post Office was aware, or should have been aware, of the moisture on the steps, the Court concludes that the Government is not entitled to summary judgment because Labhart has presented evidence showing that the stairs did not have static or friction non-skid strips to prevent customers from falling. (Powell Dep. at 7.) Under Michigan law, a landowner "`may be found negligent in failing to employ adequate slip-preventing devices in connection with common areas that have become slippery as a result of foreseeable tracking or accumulation of water.'" Perry v. Hazel Park Harness Raceway, 123 Mich. App. 542, 546, 332 N.W.2d 601, 603 (1983) (per curiam) (quoting McNabb v. Green Real Estate Co., 62 Mich. App. 500, 512-13, 233 N.W.2d 811, 817 (1985)). The Government has not presented any evidence on this issue, nor did it respond to Labhart's argument in order to explain why the rule set forth inPerry, supra, is not applicable. Therefore, a question remains for the jury regarding whether the Government was negligent in failing to provide slip-preventing devices on the stairs.
IV. Conclusion
For the foregoing reasons, the Court will deny the Government's motion for summary judgment.
An Order consistent with this Opinion will be entered.