Quinto v. Woodward Detroit CVS, LLC

850 N.W.2d 642, 305 Mich. App. 73
CourtMichigan Court of Appeals
DecidedApril 29, 2014
DocketDocket No. 311213
StatusPublished
Cited by21 cases

This text of 850 N.W.2d 642 (Quinto v. Woodward Detroit CVS, LLC) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Quinto v. Woodward Detroit CVS, LLC, 850 N.W.2d 642, 305 Mich. App. 73 (Mich. Ct. App. 2014).

Opinions

SHAPIRO, J.

Plaintiff appeals by right the trial court order that granted summary disposition in favor of defendant under MCR 2.116(0(10) in this action arising out of a trip and fall in defendant’s self-service retail store.1 Plaintiff filed a complaint against defendant alleging a single count styled as “storekeeper liability.” The trial court granted defendant’s motion for summary disposition on the basis that the object on which plaintiff tripped was an open and obvious hazardous condition. We conclude, consistent with Michigan Supreme Court caselaw, that the merchandise-display aisleways of a self-service retail store present particular circumstances to the extent that the open and obvious [75]*75danger doctrine does not eliminate the duty of the store to take reasonable actions to make those aisleways reasonably safe for its customer-invitees. While this conclusion would require that we reverse and remand, we are bound, MCR 7.215(J)(1), by the decision in Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710; 737 NW2d 179 (2007), which rejected this view. Accordingly, we affirm and request that this Court convene a special conflict panel pursuant to MCR 7.215(J)(2).

Plaintiff was shopping in defendant’s retail store. She walked down a display aisle and began to turn the corner at the end of the aisle. Projecting from the end of the aisle was a very low platform used to support heavy displays of items such as high stacks of cases of pop. The platform was not affixed to the floor and defendant does not dispute that it served no function on that day, because it was not needed and could easily have been removed.2 In her statement given to defendant shortly after the incident, plaintiff stated that when she reached the end of the aisle, she was “looking at cereal and turned the corner” and then “tripped over the end cap display,” i.e., the floor-level platform. Plaintiff conceded that she was not looking down at the floor while walking.

Plaintiff filed a negligence suit. “To establish a prima facie case of negligence, a plaintiff must prove four elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages.” Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). “The duty that a possessor of land [76]*76owes to another person who is on the land depends on the latter person’s status.” Hampton v Waste Mgt of Mich, Inc, 236 Mich App 598, 603; 601 NW2d 172 (1999). In this case, it is uncontested that plaintiff was an invitee on the day of the fall.

It is a fundamental common-law principle that a premises owner owes a duty “to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the [premises].” Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185 (1995) (quotation marks and citation omitted). Over the last two decades, however, our Supreme Court has limited this duty pursuant to the open and obvious danger doctrine. This doctrine was originally adopted in a very limited form in Riddle v McLouth Steel Prod Corp, 440 Mich 85; 485 NW2d 676 (1992), where the Supreme Court concluded that there is no duty to warn invitees of hazards they will easily discover on their own. In subsequent decisions, the Court broadened the scope of the open and obvious danger doctrine so that it greatly reduced not only the duty to warn, but also the general duty to maintain the premises in a safe condition. See, e.g., Lugo v Ameritech Corp, Inc, 464 Mich 512, 519-520; 629 NW2d 384 (2001).

The Supreme Court has never addressed the application of the doctrine in the context of its long-standing holdings that a self-service retail store owes a specific duty to its customer-invitees to provide reasonably safe display aisleways. Clark v Kmart Corp, 465 Mich 416, 419; 634 NW2d 347 (2001); Jaworski v Great Scott Supermarkets, Inc, 403 Mich 689, 699; 272 NW2d 518 (1978). The Clark Court observed that “ ‘[i]t is the duty of a storekeeper to provide reasonably safe aisles for customers and he is liable for injury resulting from an [77]*77unsafe condition . . . caused by the active negligence of himself and his employees[.]’ ” Clark, 465 Mich at 419, quoting Serinto v Borman Food Stores, 380 Mich 637, 640; 158 NW2d 485 (1968), quoting the syllabus in Carpenter v Herpolsheimer’s Co, 278 Mich 697; 271 NW 575 (1937). Further, as this Court observed, on remand, in Clark, “an individual shopping in a self-service store is entitled to presume that passageways provided for his use are reasonably safe, and is not under an obligation to see every defect or danger in his pathway.” Clark v Kmart Corp (On Remand), 249 Mich App 141, 152; 640 NW2d 892 (2002) (emphasis added), citing Jaworski, 403 Mich at 699.

These cases remain good law and, in our view, for good reason. As the Supreme Court explained in Jaworksi, self-service store aisles present a fundamentally different circumstance than do other premises, in that the store owner has purposefully displayed merchandise

so that customers [can] inspect the merchandise as they walked in the aisles or passageways of the store. The storekeeper certainly intended that his customers would devote the major part of their attention to the merchandise which was being displayed, rather than to the floor to discover possible obstructions in the aisle .... A patron of a self-service type store... is entitled to rely upon the presumption that the proprietor will see that the passageways provided for his use are reasonably safe, considering the fact that while using these passageways he may be devoting some of his attention toward inspecting the merchandise. [Jaworski, 403 Mich at 699-700 (quotation marks and citation omitted).][3]

[78]*78Our Supreme Court has never held that the open and obvious danger doctrine applies where a customer is injured by a hazard on the floor while the customer is looking at the store owner’s displays placed directly along the aisle intended for walking. Nor has the Supreme Court overruled either Jaworski or Clark. Indeed, the Supreme Court’s unanimous Clark opinion was issued after the decision in Lugo and reversed an opinion of this Court that had dismissed the plaintiffs claim. Clark, 465 Mich at 421, rev’g Clark v Kmart Corp, 242 Mich App 137; 617 NW2d 729 (2000). And, our review of all the opinions and orders of our Supreme Court since Lugo reveals no cases involving floor-level hazards in the display aisleways of a self-service retail store. Other than Clark and Jaworski, the Court has never addressed whether and how a store owner’s purposeful and near-continuous display of merchandise and advertising along pedestrian aisleways affects the duties of that store owner with regard to floor-level hazards in those aisleways.

The only published decision of this Court since Lugo that addresses Clark and Jaworski is Kennedy, 274 Mich App 710. There, the panel chose not to apply Clark and Jaworski, instead citing Lugo for the general proposition that the presence of distractions does not affect the application of the open and obvious danger doctrine. Id. at 715-718. However, in Lugo,

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Bluebook (online)
850 N.W.2d 642, 305 Mich. App. 73, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quinto-v-woodward-detroit-cvs-llc-michctapp-2014.