Bernard Keenan v. O'Reilly Auto Enters., LLC

• Court: Court of Appeals for the Sixth Circuit
• Decided: May 11, 2026
• Docket: 25-1543
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 26a0210n.06

Case No. 25-1543

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED May 11, 2026 ) KELLY L. STEPHENS, Clerk BERNARD KEENAN, ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF O’REILLY AUTO ENTERPRISES, ) MICHIGAN Defendant-Appellee. ) ) OPINION

Before: SUTTON, Chief Judge; GRIFFIN and NALBANDIAN, Circuit Judges.

SUTTON, C.J., delivered the opinion of the court in which NALBANDIAN, J., concurred. GRIFFIN, J. (pp. 7–12), delivered a separate dissenting opinion.

SUTTON, Chief Judge. After Bernard Keenan slipped and fell on some oil in the parking

lot of an O’Reilly Auto Parts store, he brought a premises-liability claim against O’Reilly. Because

O’Reilly did not have notice of the hazard before Keenan fell, the district court granted summary

judgment to O’Reilly. We agree and affirm.

I.

Keenan drove his truck into an O’Reilly store’s parking lot in August 2023. When he

stepped out of his car, he thought that he “might have stepped in some [] oil” in the parking lot.

R.34 at 35. Keenan walked into the store and noticed that his foot “slipped a little bit” “on the

tile” inside, so he “wiped” his shoe on a rug as he entered. R.34 at 37. Keenan apologized to the No. 25-1543, Keenan v. O’Reilly Auto Enters.

two O’Reilly employees working in the store because “I got a mess in your garage.” R.34 at 37.

During his deposition, Keenan at times indicated that he also may have mentioned “oil” in the

parking lot while inside the store. R.34 at 36–38. But he then clarified that, “to [his] knowledge,”

he did not “say anything at that time about oil in the parking lot.” R.34 at 42.

Keenan found the car part he was looking for, paid for it, and returned to the parking lot.

While stepping onto his truck’s running board, his other foot slipped on the oil in the parking lot.

Keenan fell backwards, hitting his back on the pavement. He went back inside the store to tell the

O’Reilly employees about the fall. After that, he drove to a hospital where he complained of pain

in his tailbone, shoulder, and neck.

Keenan sued O’Reilly in Michigan court under a premises-liability theory for failing to

keep the parking lot clear of hazards. O’Reilly removed the lawsuit to federal district court based

on diversity jurisdiction. The district court noted Keenan’s deposition statement that, “to [his]

knowledge,” he did not “say anything at that time about oil in the parking lot” and another similar

statement. R.34 at 42. It then concluded that Keenan failed to create a genuine factual dispute

about whether O’Reilly had actual or constructive notice of the oil spill before he slipped on it and

granted summary judgment to O’Reilly.

II.

Michigan premises-liability law requires landowners to show invitees, like Keenan,

“reasonable care to protect [them] from an unreasonable risk of harm caused by a dangerous

condition of the land.” Kandil-Elsayed v. F & E Oil, Inc., 1 N.W.3d 44, 52 (Mich. 2023) (quotation

omitted). To establish that a landowner breached this duty, a plaintiff must demonstrate that the

landowner had “actual or constructive notice” of the danger and failed to act—that the owner in

other words “knew or should have known” about the danger but did nothing. Lowrey v. LMPS &

2 No. 25-1543, Keenan v. O’Reilly Auto Enters.

LMPJ, Inc., 890 N.W.2d 344, 349–50 & n.2 (Mich. 2016). Actual notice involves direct

knowledge. Id. Constructive notice requires a “hazard [that] was of such a character, or had

existed for a sufficient time, that a reasonable premises possessor would have discovered it.” Id.

at 350.

To overcome O’Reilly’s motion for summary judgment, Keenan had to show that, when

viewing the evidence in the light most favorable to him, the “record taken as a whole” could “lead

a rational trier of fact to find” for him. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). Self-contradictory testimony, by itself, fails to establish a genuine factual

dispute. E.g., Plant v. Morton Int’l, Inc., 212 F.3d 929, 937 (6th Cir. 2000); Bush v. Compass Grp.

USA, Inc., 683 F. App’x 440, 449 (6th Cir. 2017).

A.

Keenan failed to demonstrate that O’Reilly had actual or constructive notice of the oil spill

on which he slipped.

Start with actual notice. Keenan does not point to any evidence that O’Reilly employees

knew about a danger in the parking lot before he fell. No evidence shows that O’Reilly knew

about the oil because, say, the store itself created the spill. To the contrary, Keenan’s testimony

suggests that someone else—perhaps an adjacent car—caused the spill. Nor does any evidence

indicate that O’Reilly employees discovered the spill. The two employees on duty denied knowing

about the oil until Keenan fell.

Keenan likewise failed to show that he told the O’Reilly employees that there was a pool

of oil in the parking lot. Keenan’s initial narrative of the incident did not mention anything about

“oil” or any other danger in the parking lot when he entered the store. Keenan testified that he

apologized to the employees for making a “mess” on the store’s tile floor and entry rug when he

3 No. 25-1543, Keenan v. O’Reilly Auto Enters.

walked in the store. R.34 at 37. That, at best, provided notice about a potential slipping hazard

inside the store. Keenan did not connect that “mess” to a danger in the parking lot or anywhere

else.

Keenan initially testified in his deposition, to be sure, that he “told [the O’Reilly

employees] there was oil out there in the parking lot.” R.34 at 36; see also id. at 37 (“There’s oil

out there.”). But then Keenan backtracked. When asked whether he told the O’Reilly employees

“during that first trip that there was oil in the parking lot,” Keenan answered, “To the best of my

knowledge, I don’t remember.” R.34 at 38. Leaving no doubt, Keenan clarified again that he

never mentioned oil in the parking lot. When asked, “Did you say anything at that time about oil

in the parking lot?”, he responded, “Not to my knowledge.” R.34 at 42. Because Keenan points

to nothing but self-contradictory testimony to show he ever mentioned “oil” or some other danger

existed in the parking lot, he failed to create a genuine factual dispute. See Plant, 212 F.3d at 937;

Bush, 683 F. App’x at 449; Campbell v. Grand Trunk W. R.R. Co., 238 F.3d 772, 776–77 (6th

Cir. 2001).

Constructive notice is no more helpful. Keenan does not meaningfully contest the district

court’s conclusion that he failed to show that O’Reilly had any reason to know about the oil spill

in the parking lot before he slipped on it. See Appellant’s Br. 16. Keenan, as a result, forfeited

this path to demonstrating notice. His decision not to press this point makes sense because, even

if he had made the argument, the evidence would fail to establish constructive notice. See, e.g.,

Bragg v. Daimler Chrysler, No. 290371, 2010 WL 3604428, at *6 (Mich. Ct. App. Sept. 16, 2010)

(per curiam). No testimony indicates that the oil remained on the asphalt for a meaningful period

of time before Keenan slipped on it. Keenan in fact described the spill as “fresh[]” and guessed

that it had been there for “an hour” or “even less than that.” R.34 at 41.

4 No. 25-1543, Keenan v. O’Reilly Auto Enters.

B.

Keenan’s appellate arguments do not rescue his claims. While he invokes his initial

statement that he mentioned “oil” in the parking lot when he walked into the store, he later denied

ever saying that to the O’Reilly employees. “[S]uch an inherently contradictory statement” does

not “constitute[] the ‘significant probative evidence tending to support the complaint’ required to

withstand a motion for summary judgment.” Penny v. United Parcel Serv., 128 F.3d 408, 416 (6th

Cir. 1997) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). We have

“repeatedly held that,” because “no reasonable person would undertake the suspension of disbelief

necessary to credit the allegations made in” self-contradictory testimony, “a plaintiff’s internally

contradictory deposition testimony cannot, by itself, create a genuine dispute of material fact.”

Bush, 683 F. App’x at 449 (quoting Jeffreys v. City of New York, 426 F.3d 549, 555 (2d Cir. 2005));

see Plant, 212 F.3d at 937; Campbell, 238 F.3d at 776–77; Doe v. Sullivan County, 956 F.2d 545,

551 (6th Cir. 1992); Gearhart v. E. I. du Pont de Nemours & Co., 833 F. App’x 416, 423 (6th

Cir. 2020). “[T]estimony [that] is contradictory on [the relevant] point,” as a result, “is not enough

to establish” an element of a claim. Hayes v. Norfolk S. Corp., 25 F. App’x 308, 314 (6th

Keenan insists that one of his denials about telling O’Reilly employees about the oil does

not count because it was inadmissible in view of the fact that he addressed the point earlier in the

deposition. This argument has at least three flaws. First, Keenan forfeited the argument by failing

to raise it in the district court. See R.34. Second, he challenges only one of his denials on appeal,

mentioning only his attorney’s objection to the question that he answered by saying he “do[es]n’t

remember” mentioning oil in the parking lot. That leaves unchallenged his more damaging

admission that “to [his] knowledge” he never told the employees about the oil. R.34 at 42; see

5 No. 25-1543, Keenan v. O’Reilly Auto Enters.

Fed. R. Civ. P. 32(d)(3)(B). Third, even if Keenan had preserved this argument and even if he had

objected to each question, he would face a steep, uphill battle in attempting to show that seeking

clarification of an inconsistent general narrative with a specific follow-up question violates any of

the Federal Rules of Evidence.

That leaves Keenan’s lukewarm reliance on his testimony that he apologized to an O’Reilly

employee for making a mess when he arrived in the store. Keenan barely attempts to develop an

argument based on these statements. And for good reason. He testified that he told the employees,

“‘I got a mess in your garage (sic),’ you know, because I noticed when I went to go on the tile in

there, my foot slipped a little bit, and I wiped it on . . . part of their rug.” R.34 at 37. He did not

connect this “mess” to a hazard in the parking lot. Statements about a “garage” do not provide

notice about the parking lot.

In fact, the statement refers to the inside of the auto parts store. After Keenan said that he

told O’Reilly employees, “You got something on your floor,” he was asked, “[W]ere you talking

to them about the floor, or were you talking to them about the parking lot?” R.34 at 38. He

answered: “The floor. I said, ‘If I made a mess in here, I’m very sorry.’” R.34 at 38. Keenan’s

testimony conveys that he told employees that he had gotten some “mess” on the carpet inside the

store, not that a dangerous oil spill existed in the parking lot. That Keenan had several further

chances to talk about what he told the employees and used them to clarify that he never mentioned

oil in the parking lot reinforces, indeed cements, this conclusion.

We affirm.

6 No. 25-1543, Keenan v. O’Reilly Auto Enters.

GRIFFIN, Circuit Judge, dissenting.

In deciding motions for summary judgment, we, and the district court, must construe the

evidence in the light most favorable to the non-moving party, drawing all justifiable inferences in

his favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Codrington v. Dolak,

142 F.4th 884, 890 (6th Cir. 2025). Because in my view the majority opinion fails to construe the

record in the light most favorable to eighty-year-old plaintiff Bernard Keenan, I respectfully

dissent.

This is not a complicated case. Keenan slipped in a pool of oil in defendant O’Reilly Auto

Enterprises, LLC’s parking lot, severely injuring himself. At the time, Keenan was an invitee of

O’Reilly. O’Reilly therefore owed to Keenan a duty under Michigan law to exercise reasonable

care regarding hazardous conditions for which it had actual or constructive knowledge. See

Lowrey v. LPMS & LMPJ, Inc., 890 N.W.2d 344, 348–49 (Mich. 2016). Keenan filed suit, alleging

that O’Reilly breached its duty by failing to use ordinary care in maintaining the safety of its

premises.

Because this case was largely decided based upon Keenan’s deposition, it is necessary to

recite Keenan’s relevant adverse-party testimony at length. Early in the deposition, O’Reilly’s

counsel asked Keenan to describe the events leading up to his injuries:

[I] pulled up. And got out of my truck, and there was a car parked beside me. A guy was messing with it. I walked in. I might have stepped in some of the oil at that time. And I went in and ordered the [engine] mount and paid for it. Come back out. The car that I was parked by was gone. And I wasn’t looking down at the ground walking. I was just walking towards my truck when I walked into the oil. I opened my door to get in. I stepped up on my running board and slipped and fell backwards.

7 No. 25-1543, Keenan v. O’Reilly Auto Enters.

O’Reilly’s counsel asked Keenan to explain again what happened when he arrived at the

store. Keenan obliged:

I put my turn signal on, pulled in -- in there, got out of my truck, walked in. And I didn’t see my footprints where I walked in the oil. I told them there was oil out there in the parking lot and picked up my purchase that I needed. When I walked out, bam, I fell and then went back in and told them.

R. 34, PID 208 (emphasis added). Counsel then asked him if he saw anything on the ground as he

exited his truck:

I didn’t look straight down to walk. I looked straight ahead. But I did step in stuff, because there’s some footprints in my pictures. I walked in and told them, and I says, “I got a mess in your garage (sic),” you know, because I noticed when I went to go on the tile in there, my foot slipped a little bit, and I wiped it on their -- on the part of their rug.

R. 34, PID 209 (emphasis added). Inquiring further, O’Reilly’s counsel asked Keenan if he had

slipped at any point when he walked from his truck and entered the store.

A: Not till I got inside where my feet -- I could feel my left foot try to move a little bit, because the rug was further up than what it was supposed to be by the doors. And I walked up there, and I wiped it. And I said, “I got a mess all over. There’s oil out there.” And that’s all I said. Them two young guys didn’t pay attention until I paid for my part. When I walked out, I slipped in that thing and fell. [. . .] Q: Okay. So from the time that you stepped out of your truck to the time you walked in the entrance doors, did you notice anything on your shoes during that point of time? A: Not really, no. Q: So when you first walked in the doors and you’re inside the store, that’s when you feel your left foot slip a little bit? A: Yes, ma’am. To my knowledge, that’s what I -- that’s why I fell.

R. 34, PID 209 (emphasis added).

8 No. 25-1543, Keenan v. O’Reilly Auto Enters.

Counsel yet again asked Keenan what happened:

Q: [Y]ou said you walked in the store, your left foot slipped a little bit, and you told them, “I got a mess all over”? A: I said, “I’m sorry if I did make a mess,” you know, that, “There is some oil,” I guess -- looked like oil to me. But when I walked -- that was the time when I come back in the second time, that’s where the big puddle of oil, I mean, it was big as you seen from the pictures.

R. 34, PID 210 (emphasis added).

Counsel for O’Reilly then asked Keenan once more if he saw oil when he exited his truck

and entered the store.

A: No. I didn’t look -- I don’t look at the ground all the time when I’m walking. Q: And I want to make sure I have your words as best you can remember them. As best as you can recall, what exactly did you say to the employees when you walked into O’Reilly? A: I walked in. I said I wanted to buy a motor mount . . . . I paid him for it. Walked out . . . . And I went to open the door, and I went -- and that’s when I fell. And after I fell, I got up and I told them inside. And that’s when the guy said, well, being smart, he said, “We’ll go out there with a chemical and the Oil-Dri.” [. . .] Q: All right. But I want to talk specifically about the conversation you had when you were inside the store the first time. A: The first time. When I walked in, to my knowledge, I told them, -- I said, “You got something on your floor.” And I wiped on the rug, and I walked up to the counter. I said, “I want to order a motor mount.” Couple minutes went through and he got it. He told me how much it was. And I said, “I’m very sorry if I made a mess,” or whatever, paid for it, and I walked out. Q: So the first time you were in the store did you reference the parking lot or did you mention the floor? A: Did I what, now, ma’am? Q: The first time you were in O’Reilly, before you went back outside and you were talking to the employee about your foot and being a mess, were you talking to them about the floor, or were you talking to them about the parking lot? A: The floor. I said, “If I made a mess in here, I’m very sorry.” And he got the motor mount for me, handed it to me. I paid for it, turned around and walked out the door. And that’s when all this stuff happened.

9 No. 25-1543, Keenan v. O’Reilly Auto Enters.

Q: Did you tell them during that first trip that there was oil in the parking lot? A: To the best of my knowledge, I don’t remember.

R. 34, PID 210 (emphasis added). Finally, Keenan was asked if he said anything about “oil” in

his warning of the “mess”:

Q: You told the two employees that there’s something on their floor, and that you’re sorry for making a mess? A: Yes, I did tell the two boys that. Q: Did you say anything at that time about the oil in the parking lot? A: Not to my knowledge.

R. 34, PID 214 (emphasis added). I turn now to what Keenan’s testimony shows.

Construing this testimony in the light most favorable to Keenan, as we must, there is a

genuine issue of material fact regarding whether Keenan gave O’Reilly notice of a hazardous

condition in the parking lot before his fall. And, as relevant here, that is all he needed to do to

survive summary judgment. See Hampton v. Waste Mgmt. of Mich., Inc., 601 N.W.2d 172, 176

(Mich. Ct. App. 1999) (per curiam). Although he variously called the hazardous condition “oil”

or “a mess,” this is not dispositive; his message relayed that a hazardous condition in the parking

lot required O’Reilly’s attention, O’Reilly did nothing about it, and Keenan slipped and fell

because of that hazardous condition, severely injuring himself.

The majority casts all this aside because Keenan’s deposition testimony regarding “oil”

was internally contradictory. Although it is true that we will set aside testimony that is “self-

contradictory and logically suspect,” Plant v. Morton Int’l, Inc., 212 F.3d 929, 937 (6th Cir. 2000),

Keenan’s testimony, on the whole, cannot be described as such.

10 No. 25-1543, Keenan v. O’Reilly Auto Enters.

Compare it to Plant. There, the plaintiff alleged a disability-discrimination claim against

his employer. Id. at 936. To make out a successful claim, he had to produce sufficient evidence

demonstrating he was disabled. The plaintiff testified that he was actually attributing his inability

to work to a disability he suffered after he was fired. Id. at 937. And he went on to testify that he

had continued working after his termination. Id. Thus, we concluded that he had “not produced

sufficient evidence from which a factfinder could conclude that he was disabled” during the period

at issue because his “self-contradictory and logically suspect testimony [was] simply not sufficient

to support a jury finding that he was disabled.” Id. To put it simply, his own testimony negated a

necessary element of his claim.

Or look to Bush v. Compass Group USA, Inc., 683 F. App’x 440, 449 (6th Cir. 2017). Like

the plaintiff in Plant, the plaintiff in Bush had to put forth sufficient evidence showing he was

disabled. Id. During his deposition, the plaintiff consistently testified that he was unable to

perform the physical work his job demanded. Id. at 447. But the plaintiff’s later affidavit asserted

the complete opposite: he could “perform the duties of [the job], as described in the written job

description.” Id. at 448. We explained that such “directly contradictory” statements need not be

considered, nor could they create a genuine dispute. Id.

This is not the case here. Kennan’s testimony adequately demonstrated that he had put

O’Reilly on notice of a hazardous condition in the parking lot. To be sure, he variously called that

condition different things—an oil spill or more simply a mess—but in any case, he told O’Reilly

employees about a hazardous condition, regardless of the specific word he used to notice the

hazardous condition before his fall. In particular, Keenan affirmatively testified that he provided

O’Reilly notice of “a mess in your garage,” “a mess all over,” and “oil out there.” Could his

11 No. 25-1543, Keenan v. O’Reilly Auto Enters.

deposition testimony have been clearer and more focused? Certainly. But his testimony does not

altogether negate a necessary element of his premises-liability claim.

At a minimum, his testimony creates a genuine issue of material fact of whether he

provided notice of a hazardous condition on the premises. This holds regardless of the specific

noun used to identify the dangerous condition. That is so because each instance of notice of the

hazardous condition triggered O’Reilly’s duty to protect him from it. And it also holds

notwithstanding the fact that Keenan was later unsure of whether he specified “oil” as the

dangerous condition warned about. That is so because his testimony was consistent that he warned

O’Reilly—via his actions and his words—of a dangerous condition on its premises. At base,

Keenan’s testimony does not rise to the level of self-contradictory and logically suspect testimony

that we have rejected before.

In my view, the decision by the district court—and affirmed by the majority—to grant

summary judgment in favor of O’Reilly is “inconsistent with the . . . obligation to view the

evidence in the light most favorable to” Keenan. Briggs v. Potter, 463 F.3d 507, 513 (6th Cir.

2006). Accordingly, I would reverse and remand for further proceedings.