Opinion
No. 343620
02-21-2019
ZORAIDA SANCHEZ, Plaintiff-Appellant, v. MEIJER INC, Defendant-Appellee.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Kent Circuit Court
LC No. 17-004893-NO Before: METER, P.J., and SAWYER and CAMERON, JJ. PER CURIAM.
In this premises liability case, plaintiff, Zoraida Sanchez, appeals the trial court's April 12, 2018 order granting summary disposition in favor of defendant, Meijer, Inc. On appeal, plaintiff claims the trial court erred when it concluded that defendant was entitled to summary disposition because the hazardous condition was open and obvious, defendant did not have notice of the hazardous condition, and plaintiff was not entitled to an adverse inference due to defendant's spoliation of the evidence. We disagree and therefore affirm the trial court's order.
I. BACKGROUND
Plaintiff sustained injuries to her knees after she slipped on a pink, sticky substance and fell while walking down an aisle at one of defendant's stores. Plaintiff and her husband, Domingo Sanchez, visited their local Meijer store to purchase a few items for dinner. Domingo pushed the cart as they walked, and according to plaintiff, Domingo was approximately 9 or 10 feet in front of her. Domingo also said that plaintiff was approximately 9 or 10 feet away, but she was more to his right. As plaintiff looked at the merchandise while walking down the aisle, she slipped on a substance on the floor. According to Domingo, he heard a scream, and when he looked over, he saw that plaintiff had fallen. Domingo went over to his wife, and he noticed an approximately 36 inch-long smear of "reddish, pink" ice cream or yogurt on the floor. He opined that plaintiff caused the smear when she stepped in the substance and slipped, and he felt that it had been melting on the floor for approximately three hours. However, he had no way of knowing how long the substance was on the floor. Plaintiff admitted that she did not see the substance on the floor, but she described it as a pink, sticky substance. Because she did not see the substance before her fall, she was not sure how big the spot was before she stepped in it. She described the spot as approximately the size of an 8 ½ x 11-inch piece of paper.
According to plaintiff's reply brief on appeal, there is no discussion in the record as to the color of the floor. We have not been able to confirm the color of the tile floor in the record.
When plaintiff slipped, her knees struck the floor first. Domingo tried to help her up, but she could not stand. Several Meijer employees responded to the scene, and eventually plaintiff was able to get into a wheelchair. She told Meijer employees not to call an ambulance; instead, she continued shopping with her husband. A Meijer employee filled out a Customer Incident Report, stating:
Customer was swalking [sic] down Aisle 8 , [sic] stopped to look at something. Slipped in red juice that was spilled on the floor. She landed on both knees, than [sic] her left shoulder. Customer states that both knees hurt and was having pain in her Left shoulder. She also stated she was getting a headache. Customer declined Ambulance. She stated that she would see her own doctor tomorrow.
Plaintiff alleged one count of premises liability in her complaint. At the close of discovery, defendant filed its motion for summary disposition, claiming the condition was open and obvious given the testimony from plaintiff and Domingo. Defendant also argued that there was no evidence that its employees had constructive notice of the hazard because the record contained no evidence as to the length of time it was on the floor. Plaintiff filed a response, arguing that defendant was guilty of spoliation because its employees cleaned the spill before taking any photographs or collecting a sample of the substance. Plaintiff and her husband also submitted affidavits, stating the hazard was Meijer Purple Cow cherry ice cream. They also stated that they conducted a melting test, and the ice cream took approximately 60 minutes to melt, which proved that defendant's employees at least had constructive notice of the hazardous condition.
The trial court held a hearing on defendant's motion for summary disposition. After hearing arguments on the open and obvious doctrine, notice, and spoliation, the trial court concluded that the hazardous condition was open and obvious and that defendant did not have constructive notice of the condition. This appeal followed.
II. STANDARD OF REVIEW
This Court reviews de novo rulings on a motion for summary disposition under MCR 2.116(C)(10). Johnson v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012). Summary disposition is proper under MCR 2.116(C)(10) if "there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 469 (2003). In ruling on a motion under MCR 2.116(C)(10), a trial court may "consider the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted by the parties in the light most favorable to the party opposing the motion." Liparoto Const, Inc v Gen Shale Brick, Inc, 284 Mich App 25, 29; 772 NW2d 801 (2009). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West, 469 Mich at 183.
This Court reviews for an abuse of discretion a trial court's decision to sanction a party for spoliation of evidence. Brenner v Kolk, 226 Mich App 149, 160; 573 NW2d 65 (1997). An abuse of discretion occurs when the decision falls outside the range of principled outcomes. Barnett v Hidalgo, 478 Mich 151, 158; 732 NW2d 472 (2007).
III. ANALYSIS
Plaintiff argues that she is entitled to an adverse inference due to defendant's spoliation of evidence. We disagree.
"Even when an action has not been commenced and there is only a potential for litigation, the litigant is under a duty to preserve evidence that it knows or reasonably should know is relevant to the action." Brenner, 226 Mich App at 162. Plaintiff contends that while she was focused on the pain from her fall, defendant's employees destroyed the only evidence relevant to her claim when they cleaned up the spill. She asserts that the Meijer employees should have done more to preserve the evidence by either photographing the scene or collecting a sample of the substance. Therefore, plaintiff claims she is entitled to an adverse inference like the one provided in Clark v Kmart Corp, 249 Mich App 141, 146; 640 NW2d 892 (2002), and that defendant should be prohibited from refuting that the substance was ice cream. This argument fails.
First and foremost, this issue is moot. The spoliation instruction is only relevant to the issue of notice and, as will be discussed in more detail below, summary disposition was properly granted because the condition was open and obvious. When lost or destroyed evidence is immaterial, sanctioning the at-fault party is inappropriate. Ellsworth v Hotel Corp of America, 236 Mich App 185, 193-194; 600 NW2d 129 (1999). Plaintiff argues in her reply brief that the instruction would also be relevant as to whether the substance was open and obvious, but as she admits, there was no evidence of the shape and size of the substance prior to her fall. Plaintiff and her husband have already testified in detail as to the shape, size, and color of the substance as it existed after the fall, and a photograph of the substance in this state would not have been material to determining whether it was open and obvious before plaintiff's fall.
Even if the issue of spoliation was relevant, defendant did not have a duty to preserve the evidence in this case. After her fall, plaintiff refused medical treatment, told employees not to call an ambulance, and she continued shopping. Considering plaintiff's own reaction to the fall, the employees took reasonable action, such as completing an incident report, providing plaintiff a wheelchair, and cleaning up the spill so that no other customers would slip and fall. Plaintiff admits that her focus was on her own injuries and not on possible litigation, and thus, we find it reasonable that defendant also focused on plaintiff's injuries and ensuring that the aisle was made safe for other customers—not potential litigation. Plaintiff has not argued that she herself did not have time to fully view or photograph the substance. Contra Ritter v Meijer, Inc, 128 Mich App 783, 786 ; 341 NW2d 220 (1983) (concluding that the defendant cleaned up the hazardous condition before the plaintiff had a full chance to even observe it). There is nothing in the record to suggest that defendant acted in bad faith; rather, its employees' actions were routine and unremarkable. The trial court's decision against sanctioning defendant for the spoliation of evidence was not outside the range of reasonable and principled outcomes. Therefore, the trial court did not abuse its discretion.
Plaintiff also argues that the trial court erred when it granted defendant's motion for summary disposition because the condition created by the substance was not open and obvious. We disagree.
To succeed on a premises liability claim, a plaintiff must prove the elements of negligence: duty, breach, causation, and damages. Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 693; 822 NW2d 254 (2012). In this case, the parties do not dispute that plaintiff and her husband were invitees. "Generally, an owner of land 'owes a duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land.' " Id. (citation omitted).
Our courts have long held that the duty to exercise reasonable care "does not extend to open and obvious dangers." Id. at 693. When "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. (quotation marks and citation omitted). "The standard for determining if a condition is open and obvious is whether an average user with ordinary intelligence [would] have been able to discover the danger and the risk presented upon casual inspection." Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 478; 760 NW2d 287 (2008) (quotation marks and citation omitted). "[T]he test is objective, and the inquiry is whether a reasonable person in the plaintiff's position would have foreseen the danger, not whether the particular plaintiff knew or should have known that the condition was hazardous." Id. at 479.
Plaintiff argues that because there is no evidence in the record of the substance's character before she stepped in it and smeared it across the floor, there is at least a question of fact as to whether the substance was open and obvious. However, we find that there is evidence in the record of the substance's character as it existed before the fall. We know that the substance was a reddish pink color of a substantial size. The parties acknowledge that, as observed after the fall, plaintiff believed the substance was the size of an 8 ½ x 11-inch sheet of paper. According to plaintiff's husband, the smear was roughly 36 inches long, and he was able to see it from a distance of approximately nine feet. As the trial court eloquently stated: "[P]laintiff and her husband would acknowledge that the substance was open and obvious after the fact. That being the case it seems to me it certainly should have been open and obvious before the fact[.]" Plaintiff admits that the substance was not concealed or hidden in any way. On this evidence, a reasonable person in plaintiff's position would have foreseen the danger.
This case is comparable to Kennedy v Great Atlantic & Pacific Tea Co, 274 Mich App 710; 737 NW2d 179 (2007). In Kennedy, the plaintiff slipped on crushed grapes that he claimed were inconspicuous and blended in with the flooring. Id. at 713. However, the plaintiff admitted that "the crushed grapes were readily observable after he slipped" and "nothing blocked his view of the supermarket floor." Id. at 713-714. For those reasons, we concluded that the condition was open and obvious. Id. at 714. Here, as in Kennedy, plaintiff and her husband admit that the substance was readily observable—even as far away as nine feet. Moreover, plaintiff has not claimed that the coloring of the substance rendered it inconspicuous. Instead, plaintiff only argues that there is no evidence of the substance's character before the fall. Because we find that this is not true, the trial court did not err when it concluded that there was no genuine issue of material fact that the substance was open and obvious.
Plaintiff argues that this Court is bound by Clark v Kmart Corp, 465 Mich 416; 634 NW2d 347 (2001). In Clark, the plaintiff was also injured when she slipped on several loose grapes. Id. at 417. However, the issue in Clark was whether the defendant had notice of the condition—not whether the condition was open and obvious. Id. at 416-417. Therefore, plaintiff's argument lacks merit.
Plaintiff's argument rests on the notion that the condition in this case—the pink substance—was altered when she stepped in it. Thus, this case is unlike those involving ice or potholes, where the condition is unchanging and can be readily documented. Thus, she asserts that without direct evidence of the substance's character, the issue should be allowed to go before a jury. However, this is not the standard on which we must decide this case. "In presenting a motion for summary disposition, the moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence." Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). The opposing party must then establish a genuine issue of fact for trial, and it "may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists." Id. By plaintiff's and her husband's own admission, the condition here was open and obvious. There is nothing in the record that supports plaintiff's position, and therefore, the trial court did not err when it granted summary disposition because the hazardous condition was open and obvious.
Because the substance was open and obvious, we do not address whether defendant had notice of the hazardous condition. --------
Affirmed.
/s/ Patrick M. Meter
/s/ David H. Sawyer
/s/ Thomas C. Cameron