UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

THERESA FOUST and RONALD FOUST, 

 

Plaintiffs, Civil Case No. 14-13571 

 Honorable Linda V. Parker 

v. 

 

HOME DEPOT USA, INC. d/b/a THE HOME 

DEPOT, 

 

Defendant. 

________________________________/ 

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

 Plaintiffs filed this lawsuit in state court against Defendant Home Depot 

USA, Inc., d/b/a The Home Depot (“Defendant”), after Plaintiff Theresa Foust 

(“Mrs. Foust”) fell after tripping on a display cart at Defendant’s store in Auburn 

Hills, Michigan. Defendant removed the action to federal court on the basis of 

diversity jurisdiction on September 15, 2014. In the Complaint, Mrs. Foust asserts 

premises liability (Count I) and negligence (Count II) claims against Defendant. 

Her husband, Ronald Foust, asserts a derivative loss of consortium claim against 

Defendant (Count III). Presently before the Court is Defendant’s motion for 

summary judgment, filed pursuant to Federal Rule of Civil Procedure 56. The 

motion has been fully briefed. (ECF Nos. 20, 21.) Finding the facts and legal 

arguments sufficiently presented in the parties’ pleadings, the Court is dispensing 

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with oral argument with respect to Defendant’s motion pursuant to Eastern District 

of Michigan Local Rule 7.1(f). For the reasons that follow, the Court is granting in 

part and denying in part Defendant’s motion. 

I. Summary Judgment Standard

Summary judgment pursuant to Federal Rule of Civil Procedure 56 is 

appropriate “if the movant shows that there is no genuine dispute as to any material 

fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 

56(a). The central inquiry is “whether the evidence presents a sufficient 

disagreement to require submission to a jury or whether it is so one-sided that one 

party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 251-52 (1986). After adequate time for discovery and upon motion, Rule 56 

mandates summary judgment against a party who fails to establish the existence of 

an element essential to that party’s case and on which that party bears the burden 

of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). 

The movant has the initial burden of showing “the absence of a genuine 

issue of material fact.” Id. at 323. Once the movant meets this burden, the 

“nonmoving party must come forward with specific facts showing that there is a 

genuine issue for trial.” Matsushita Electric Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 587 (1986) (internal quotation marks and citation omitted). To 

demonstrate a genuine issue, the nonmoving party must present sufficient evidence 

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upon which a jury could reasonably find for that party; a “scintilla of evidence” is 

insufficient. See Liberty Lobby, 477 U.S. at 252. 

“A party asserting that a fact cannot be or is genuinely disputed” must 

designate specifically the materials in the record supporting the assertion, 

“including depositions, documents, electronically stored information, affidavits or 

declarations, stipulations, admissions, interrogatory answers, or other materials.” 

Fed. R. Civ. P. 56(c)(1). The court must accept as true the non-movant’s evidence 

and draw “all justifiable inferences” in the non-movant’s favor. See Liberty Lobby, 

477 U.S. at 255. 

II. Factual Background

 On June 3, 2014, at around 4:45 p.m., Mrs. Foust visited Defendant’s Home 

Depot store in Auburn Hills, Michigan, where her daughter was working as a 

cashier. While waiting for her daughter to get off work at 5:00 p.m., Mrs. Foust 

traveled to an aisle of the store to look at blinds for her home. Mrs. Foust entered 

the aisle at the end closest to the front of the store, without any difficulty, and 

browsed the aisle. As she returned down the same aisle to the front of the store, 

her left shoe “caught” what she now assumes was the “bottom part” of a 

conversion cart situated just inside the aisle, which caused her to fall. Mrs. Foust 

fell to the ground onto her right hip, causing a comminuted fracture of the right 

femur requiring open reduction and internal fixation of the right hip. 

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 The conversion cart, or “wing stack”, is an “L” shaped metal cart with a 

2’x 2’ base and a 51” tall pegboard on which sales material is displayed. (ECF No. 

19, Ex. 4 at Answers 3 and 4; Ex. 3.) The base and pegboard piece are dark grey in 

color. (Id., Ex. 3.) At the time of the incident at issue, packaged products were 

displayed hanging from the pegboard and standing on the base. (Id.) The product 

on the base did not cover the entire base. (Id.) The aisle floor is a grey colored 

concrete, which the store’s Manager, John Okar, described during his deposition in 

this matter as a lighter grey than the conversion cart. (ECF No. 20, Ex. F at 14.) 

Teri Ann Nickson-Nye, Mrs. Foust’s daughter who works at the Home Depot, 

testified that the cart and color of the aisle floor are similar in color. (Id., Ex. I at 

33, 35-36.) 

 Home Depot employees had moved the conversion cart from the aisle’s end 

cap to the first upright inside the aisle several days earlier to follow a special event 

floor plan distributed by the corporate office. (Id., Ex. 4, Answer to No. 6.) 

According to Home Depot’s practice, when moved into an aisleway, the 

conversion cart is placed at a forty-five degree (45◦

) angle to enable customers to 

get around the cart to reach product placed on the aisle shelves. (ECF No. 20, Ex. 

F at 36.) The aisles are approximately eight to ten feet wide. (Id. at 53; Ex. C at 

76.) The distance between the closest base corner of the display unit to the 

permanent retail racking located on the opposite side of the aisle is approximately 

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five feet. (ECF No. 19, Ex. 4, Answer to no. 17.) Mrs. Foust agreed with defense 

counsel during her deposition that there was “plenty of room” to walk through the 

aisle without encountering the cart. (Id., Ex. C at 79.) There was no one else 

attempting to enter or exit the aisle when Mrs. Foust’s incident occurred. (Id. at 

76.) 

There is no evidence that the conversion cart had been moved by an 

employee or customer before Mrs. Foust’s fall. (ECF No. 19, Ex. 4 Answer to No. 

9.) Nevertheless, at her deposition in this matter, Mrs. Foust did not recall seeing 

or looking to see if there were any free standing displays and she did not see the 

display before she fell. (ECF No. 20, Ex. C at 69, 71.) She also had no memory of 

looking toward the floor to observe any obstructions in her path before she fell. 

(Id. at 69.) Instead, Mrs. Foust recalled looking to her right at whatever was 

displayed in the aisle and to the front of the store where her daughter was situated 

at her cashier station immediately before she tripped and fell. (Id. at 68.) Looking 

at pictures of the area where the accident occurred during her deposition, which the 

store’s Operations Manager, Jonathan Wood, took immediately after the accident, 

Mrs. Foust agreed with Defendant’s counsel that the conversion cart was highly 

visible. (Id. at 93.) During her deposition, Mrs. Faust’s daughter also agreed with 

Defendant’s counsel that the conversion cart is highly visible if someone is paying 

attention. (Id., Ex. I at 46.) When reminded by Plaintiffs’ counsel that Mrs. Foust 

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would have been approaching the cart from its backside when she fell, Ms. 

Nickson-Nye agreed with Plaintiffs’ counsel that the corner of the cart’s base in 

fact was not highly visible. (Id. at 50-51, 53-54.) 

Nevertheless, Mr. Wood, the store’s Operations Manager, testified during 

his deposition in this case that in the twenty years he has worked at Home Depot, 

Mrs. Foust’s accident was the first time he has had to respond to a customer 

tripping over a conversion cart. (ECF No. 20, Ex. H at 23.) Mr. Okar, the store’s 

Manager, testified during his deposition that he was unaware of any trip and fall 

incidents over conversion carts occurring during his fifteen years at Home Depot. 

(Id., Ex. F at 41.) When asked if he considered the cart to be a trip hazard, Mr. 

Okar responded that he did not “because . . . I see this as something that is easy to 

be seen, is large enough in size that is noticeable and is, you know, positioned as 

such so that the customer is able to see that it’s there . . ..” (Id. at 42.) Ms. 

Nickson-Nye testified that she had never noticed anyone coming in contact with 

conversion carts in the store before her mother’s accident. (Id., Ex. I at 27.) 

However, since the accident, she has seen people trip on the conversion carts, 

although not falling as a result. (Id. at 28-29.) 

III. Defendant’s Arguments and Plaintiffs’ Response

 In its motion for summary judgment, Defendant argues that it is not liable 

for Mrs. Foust’s accident because the conversion cart was an open and obvious 

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danger. Defendant contends that there are no special aspects of the conversion cart 

to remove this case from the open and obvious doctrine. Defendant maintains that 

Mrs. Foust’s claim sounds in premises liability rather than ordinary negligence as 

there is no evidence that Mrs. Foust’s injury was the result of Home Depot 

employees omitting their responsibilities, as opposed to a condition of the 

premises. 

 Plaintiffs contend in response that there is a genuine issue of material fact 

with respect to whether the conversion cart was an open and obvious danger. 

Thus, Plaintiffs argue, the question is for the jury to decide. Plaintiffs also argue 

that Defendant has a separate duty as a shopkeeper to keep its aisles safe for 

customers to which the open and obvious doctrine is inapplicable. 

IV. Applicable Law and Analysis1

 Under Michigan law, a plaintiff asserting a negligence claim must prove: 

“(1) ‘that the defendant owed a legal duty to the plaintiff,’ (2) ‘that the defendant 

breached or violated the legal duty,’ (3) ‘that the plaintiff suffered damages,’ and 

(4) ‘that the breach was a proximate cause of the damages suffered.’ ” Demo v. Red 

Roof Inns, Inc., 274 F. App’x 477, 478 (6th Cir. 2008) (quoting Schultz v. 

Consumers Power Co., 506 N.W.2d 175, 177 (Mich. 1993)). “The duty that a 

 

1 The parties are in agreement that Michigan substantive law applies to this case 

which is before the Court on diversity jurisdiction. See Cudney v. Sears, Roebuck 

& Co., 21 F. App’x 424, 427-28 (6th Cir. 2001) (citations omitted). 

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possessor of land owes to another person who is on the land depends on the latter 

person’s status.” Hampton v. Waste Mgmt. of Mich., Inc., 601 N.W.2d 172, 175 

(1999). The parties are in agreement that Mrs. Foust was an invitee on 

Defendant’s premises when the accident occurred. (See ECF Nos. 19 at Pg ID 103, 

20 at Pg ID 256.) 

“In general, a premises possessor 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.” Lugo v. Ameritech Corp., 629 N.W.2d 384, 

386 (Mich. 2001). This duty arises where there is “an unreasonable risk of harm 

caused by a dangerous condition of the land that the landowner knows or should 

know the invitees will not discover, realize, or protect themselves against.” 

Bertrand v. Alan Ford, Inc., 537 N.W.2d 185, 186 (Mich. 1995) (internal quotation 

marks and citation omitted). This duty does not extend, however, to dangerous 

conditions that are open and obvious unless special aspects of the condition make 

even an open and obvious risk unreasonably dangerous. Lugo, 629 N.W.2d at 386. 

As summarized by the Michigan Supreme Court: 

[I]f the particular activity or condition creates a risk of harm only 

because the invitee does not discover the condition or realize its 

danger, then the open and obvious doctrine will cut off liability if the 

invitee should have discovered the condition and realized its danger. 

On the other hand, if the risk of harm remains unreasonable, despite 

its obviousness or despite knowledge of it by the invitee, then the 

circumstances may be such that the invitor is required to undertake 

reasonable precautions. 

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Bertrand, 537 N.W.2d at 187. 

An open and obvious condition is one “ ‘that an average person with 

ordinary intelligence would have discovered . . . upon casual inspection.’ ” 

Wimberly v. Forman Mills, Inc., 574 F. App’x 621, 622 (6th Cir. 2014) (quoting 

Hoffner v. Lanctoe, 821 N.W.2d 88, 94-95 (Mich. 2012). The Michigan Supreme 

Court has advised that when applying this test, “it is important for courts . . . to 

focus on the objective nature of the condition of the premises at issue, not on the 

subjective degree of care used by the plaintiff.” Lugo, 629 N.W.2d at 390. “The 

proper question is not whether this plaintiff could or should have discovered the 

[dangerous condition], but whether the [dangerous condition] was observable to 

the average, casual observer.” Price v. Kroger Co. of Michigan, 773 N.W.2d 739, 

742 (Mich. Ct. App. 2009) (emphasis in original) (citing Novotny v. Burger King 

Corp., 499 N.W.2d 379, 381 (Mich. Ct. App. 1993); see also Lugo, 629 N.W.2d at 

390 (explaining that the degree to which the plaintiff was paying proper attention is 

immaterial to the question of whether the condition of the premises was open and 

obvious). While the danger of a condition may generally be open and obvious, 

there may be special aspects of the condition “that make the risk of harm 

unreasonable, and, accordingly, a failure to remedy the dangerous condition may 

be found to have breached the duty to keep the premises reasonably safe.” 

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Bertrand, 537 N.W.2d at 188. As the Michigan Supreme Court subsequently 

restated: 

Consistent with Bertrand, we conclude that, with regard to open and 

obvious dangers, the critical question is whether there is evidence that 

creates a genuine issue of material fact regarding whether there are 

truly “special aspects” of the open and obvious condition that 

differentiate the risk from typical open and obvious risks so as to 

create an unreasonable risk of harm, i.e., whether the “special aspect” 

of the condition should prevail in imposing liability upon the 

defendant or the openness and obviousness of the condition should 

prevail in barring recovery. 

Lugo, 629 N.W.2d at 387. 

The Bertrand Court provided some examples of when the obviousness of the 

danger may not relieve the premises owner of liability. For one, the Court 

explained that while the danger of tripping and falling on a step is generally open 

and obvious, there may be unique circumstances, such as the “character, location, 

or surrounding conditions,” that render the area unreasonably dangerous. 

Bertrand, 537 N.W.2d at 189-90. Thus in Bertrand, the Court found the step at the 

defendant’s place of business unreasonably dangerous because of its placement in 

relation to vending machines and a cashier’s window, as well as the fact that the 

hinging of a door required the plaintiff‒ who was holding the door open for other 

customers coming from the opposite side of the door‒ to step back near the edge of 

the step. Id. at 192. The Court also indicated that “[s]uch reason to expect harm to 

the visitor from known or obvious dangers may arise . . . where the possessor [of 

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the land] has reason to expect that the invitee’s attention may be distracted, so that 

he will not discover what is obvious, or will forget what he has discovered, or fail 

to protect himself against it.” Id. at 187. In such a case, the Bertrand Court 

advised, the open and obvious nature of the dangerous condition does not relieve 

the premises owner of a duty of reasonable care and he or she may be required “to 

warn the invitee, or to take other reasonable steps to protect him . . ..” Id. (quoting 

Restatement Torts, 2d § 343A, comment f at 220). The Court subsequently stated 

in Lugo that “only those special aspects that give rise to a uniquely high likelihood 

of harm or severity of harm if the risk is not avoided will serve to remove that 

condition from the open and obvious doctrine.”2

 629 N.W.2d at 387-88. 

 Relying on several Michigan Supreme Court and Court of Appeals cases, 

Plaintiffs argue that Defendant, as a shopkeeper, owed a separate and independent 

duty to keep its aisles reasonably safe for shoppers which is not subject to the open 

and obvious doctrine. The Michigan Supreme Court described this “storekeeper 

duty” in Clark v. Kmart Corporation, 634 N.W.2d 347 (2001), as follows: 

“It is the duty of a storekeeper to provide reasonably safe aisles for 

customers and he is liable for injury resulting from an unsafe 

condition either caused by the active negligence of himself and his 

employees or, if otherwise caused, where known to the storekeeper or 

 

2 The examples of such a situation that the Lugo Court provided were “a 

commercial building with only one exit for the general public where the floor is 

covered with standing water” or “an unguarded thirty foot deep pit in the middle of 

a parking lot.” 629 N.W.2d at 387. 

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is of such a character or has existed a sufficient length of time that he 

should have had knowledge of it.” 

Id. at 348-49 (quoting Serinto v. Borman Food Stores, 158 N.W.2d 485, 486 

(Mich. 1968) (additional citations omitted). The open and obvious doctrine was 

not at issue in Clark; instead, the question before the Michigan Supreme Court was 

whether there was sufficient evidence to conclude that the defendant knew or 

should have known of the dangerous condition (i.e., grapes scattered on the store’s 

floor). On remand, however, the appellate court in Clark discussed the 

obviousness of the dangerous condition when addressing the additional issue of 

whether the trial court erred in refusing to give a jury instruction on comparative 

negligence. 640 N.W.2d 892, 897 (Mich. Ct. App. 2002). 

The Michigan Court of Appeals in Clark relied on the Michigan Supreme 

Court’s decision in Jaworski v. Great Scott Supermarkets, Inc., 272 N.W.2d 518 

(1978), to uphold the trial court’s decision to not instruct the jury on the issue of 

contributory negligence. Specifically, the appellate court in Clark relied on the 

Jaworksi Court’s statement that “an individual shopping in a self-service store 

. . . is not under an obligation to see every defect or danger in his pathway.” Clark, 

640 N.W.2d at 898 (citing Jaworksi, 272 N.W.2d at 520); see also Jaworksi, 272 

N.W.2d at 520 (“We cannot accept the notion that a customer in a modern 

supermarket or department store should be under an obligation to see every defect 

or danger in his pathway.”). The Jaworski Court had further stated: 

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“Defendant’s store in this case was a ‘self-service’ type store, in 

which its merchandise was displayed on counters or on shelves so that 

customers could 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, and in our opinion that 

circumstance must be considered in determining the degree of care 

which the storekeeper should use in maintaining safe passageways. A 

patron of a self-service type store, we think, 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, 272 N.W.2d at 521 (quoting Provost v. Great Atl. & Pac. Tea Co., 154 

So.2d 597, 601-02 (La App. 1963)). Significantly, none of these statements by the 

Supreme Court in Jaworksi and the Michigan Court of Appeals in Clark were 

made in reference to the open and obvious doctrine or the duty of the premises 

owner. Instead, they were specifically constrained to the issue of contributory 

negligence‒ a doctrine the Michigan Supreme Court abrogated a year after 

Jaworksi. See Placek v. City of Sterling Heights, 275 N.W.2d 511, 522 (Mich. 

1979) (“[C]omparative negligence shall be the applicable rule in any case 

commenced but not submitted to the trier of fact prior to the date of this 

decision[.]”). 

 It is for this reason that courts have rejected a plaintiff’s reliance on 

Jaworksi to argue that the open and obvious doctrine is inapplicable to a 

shopkeeper’s duty, explaining that the “distraction” theory announced in Jaworksi 

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applies only to decide whether contributory negligence relieves the defendant of a 

duty already found to exist. See, e.g., Kennedy v. Great Atl. & Pac. Tea Co., 737 

N.W.2d 179, 183 (Mich. Ct. App. 2007) (rejecting the plaintiff’s assertion that the 

distraction theory rendered the defendant liable for even open and obvious 

distractions, explaining that “[t]he problem with plaintiff’s assertion in this regard 

is that Jaworski was a contributory negligence case . . . The issue . . . was not 

whether the defendant supermarket owed the plaintiff a duty, but whether the 

plaintiff was contributorily negligent in failing to observe and avoid slipping on 

[the dangerous condition].”); Wimberly v. Forman Mills, Inc., 574 F. App’x 621, 

622 (6th Cir. 2014) (unpublished) (“Jaworksi was a case about contributory 

negligence . . . thus [it] has no bearing on whether a defendant owes a plaintiff a 

duty in the first place, and thus is not relevant to the open and obvious doctrine.”);

Bradfield v. Meijer, Inc., No. 258458, 2006 WL 708145, at *2 (Mich. Ct. App. 

Mar. 21, 2006) (unpublished) (“Plaintiff’s reliance on the ‘distraction’ theory 

announced in Jaworski . . . a contributory negligence case, is misplaced.”) In 

support of their argument that the open and obvious doctrine is not applicable to a 

“separate and distinct” shopkeeper’s duty to keep aisles safe, Plaintiffs also cite 

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

and Berryman v. K Mart Corporation, 483 N.W.2d 642 (Mich. Ct. App. 1992). 

The court in Berryman did not address the issue of whether the open and obvious 

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doctrine was applicable to the plaintiff’s negligence claim and never referred to 

Jaworski’s distraction theory. 483 N.W.2d at 645-46. This is because the only 

question concerning the defendant’s negligence presented in that case (aside from 

two relevant evidentiary issues) was whether the plaintiff presented sufficient 

evidence to create a jury question on whether defendant created the unsafe 

condition (a wet floor). Id. The Quinto court did “conclude . . . that the 

merchandise-display aisleways of a self-service retail store present particular 

circumstances to the extent that the open and obvious danger doctrine does not 

eliminate the duty of the store to take reasonable actions to make those aisleways 

reasonably safe for its customer-invitees.” 850 N.W.2d at 643. The court’s 

conclusion is pure dicta, however, as the court also held that it was bound by the 

court’s earlier and contrary decision in Kennedy. Id. at 647. 

In short, because Jaworski’s “distraction” theory was discussed in the 

context of contributory negligence rather than the shopkeeper’s duty, the Michigan 

Supreme Court cannot be said to have held that the open and obvious doctrine has 

no applicability to a shopkeeper’s duty to provide reasonably safe display aisle 

ways. In diversity cases, federal courts must apply the law of the state’s highest 

court. Bailey v. V & O Press Co., 770 F.2d 601, 604 (6th Cir. 1985) (citing Erie 

R.R. v. Tomkins, 304 U.S. 64 (1938)). “If the highest court has not spoken, the 

federal court must ascertain from all available data what the state law is and apply 

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it.” Id. (citations omitted). The “data” guiding the court’s inquiry includes 

intermediate appellate court decisions, the dicta of the state’s highest court, 

restatements of law, law review commentaries, and the majority rule among other 

states. Garden City Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1130 (6th Cir. 

1995). However, “ ‘a federal court may not disregard a decision of the state 

appellate court on point, unless it is convinced by other persuasive data that the 

highest court of the state would decide otherwise.’ ” Ziegler v. IBP Hog Mkt., Inc., 

249 F.3d 509, 517 (6th Cir. 2001) (quoting Puckett v. Tenn. Eastman Co., 889 F.2d 

1481, 1485 (6th Cir. 1989)). Thus, as the court ultimately concluded in Quinto, 

this Court is bound by the Michigan Court of Appeals’ decision in Kennedy that 

the open and obvious doctrine is applicable to the shopkeeper’s duty. In two 

unpublished decisions, the Sixth Circuit Court of Appeals has reached the same 

conclusion. See Wimberly, supra; Cudney v. Sears, Roebuck and Co., 21 F. App’x 

424 (6th Cir. 2001) (rejecting the plaintiff’s argument “that the open and obvious 

danger rule does not apply where a retail merchant creates display racks in a selfservice store that extend into aisles to create a tripping hazard” and holding that 

“Jaworski does not create a heightened duty simply because [the plaintiff] was a 

customer in a store.”). 

In addition to establishing that the open and obvious doctrine is applicable to 

a shopkeeper’s duty, the cases discussed above also establish that Mrs. Foust has 

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but one negligence claim properly asserted and analyzed only as a premises 

liability claim.3

 See, e.g., Wimberly, 574 F. App’x 621 (analyzing the plaintiff’s 

claim arising from trip and fall over hanger on ground in aisle of defendant’s store 

as a premises liability action); Cudney, 21 F. App’x at 426 (same where the 

plaintiff tripped and fell over support leg of a clothing rack and finding no separate 

duty imposed on the defendant store); Kennedy, 737 N.W.2d at 711012 (same 

where the plaintiff slipped on crushed grapes and grape residue on the grocery 

floor); see also Ealey v. Rockford Const. Co., No. 1:13-cv-802, 2015 WL 1459228, 

at * (W.D. Mich. Mar. 30, 2015) (unpublished) (recasting the plaintiff’s negligence 

claim as a premises liability action as she was claiming injuries arising from a 

condition of the premises, i.e., the placement of a fire extinguisher on a column in 

a Meijer store). As the Cudney court stated, there is no heightened duty for a 

premises owner “simply because [the plaintiff] was a customer in a store.” 21 F. 

App’x at 429 (citing Charleston v. Meijer, Inc., 335 N.W.2d 55 (Mich. Ct. App. 

1983) (stating that “[w]e see no valid reason to extend Jaworski and create a 

special standard of care for supermarket patrons”). In short, Mrs. Foust is claiming 

 

3 In the Complaint, the second count is cast as an independent negligence claim 

based on the decision of Defendant’s employees to place the conversion cart in the 

aisle in the manner that it was situated. (Compl. ¶¶ 15-17.) However cast, the 

allegations still assert injuries arising from a condition of the premises. Plaintiffs 

do not allege active negligence on the part of Defendant independent of its duty as 

a business owner. 

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injuries arising from a condition of the premises. The “shopkeeper’s duty” defined 

in Clark and other cases is simply another way to phrase the duty to maintain the 

premises when the premises owner happens to be a shopkeeper. It is not a separate 

and distinct claim, as Plaintiffs argue, which can be asserted as a separate 

negligence claim. As such, Defendant is entitled to summary judgment with 

respect to the second count of Plaintiffs’ Complaint. 

Having resolved these issues, the Court turns to the question of whether the 

conversion cart was open and obvious such that Defendant is relieved of any duty 

to protect Mrs. Foust, or whether some special aspects of the condition 

nevertheless justify imposing liability on Defendant. The Court finds that a jury 

could reasonably conclude that special aspects of the conversion cart would 

prevent an average person of ordinary intelligence from discovering its danger. 

 Defendant establishes that the conversion cart was “highly” visible. 

However, there is some dispute as to whether the corner of its base (on which Mrs. 

Foust apparently tripped) was clearly visible. Moreover, as the pictures of the 

conversion cart taken by Defendant’s employee after the accident show, there are 

metal strips which extend beyond the rear end of its base and lay close to the floor, 

creating an independent tripping hazard. 

While careful shoppers may not be able to miss seeing the approximately 

four-foot tall conversion cart and would adjust their route to avoid colliding with 

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the cart, even prudent shoppers may not observe the extending pieces requiring 

them to veer even further from the cart in order to pass by it safely. That these 

pieces, like the conversion cart, are similar in color to the store’s cement floor and 

are at floor level render them even harder to observe. 

Further, the extending metal strips are not visible from the front of the 

conversion cart and do not appear to pose a hazard to someone passing the cart 

while walking down the aisle toward the back of the store. As a result, someone 

(like Mrs. Foust) who has safely passed the conversion cart while proceeding to the 

back of the store may be less likely to observe the hazard while venturing again 

past the cart while walking toward the front of the store. In other words, an 

average person of ordinary intelligence, having discerned the location of the 

obstacle in the aisle while walking toward the back of the store, may be less likely 

to reassess the same obstacle when re-approaching it from the opposite direction. 

For these reasons, the Court concludes that there is a genuine issue of 

material fact with respect to whether an ordinary user upon casual inspection 

would have discovered the metal strips extending from the conversion cart into the 

aisle way. A jury could reasonably infer that a casual inspection of the premises in 

which Mrs. Foust shopped would not have revealed these strips in light of their 

unexpected extension from only the backside of the cart’s base, similar coloration 

to the cement floor, and location at floor level. As such, the Court concludes that 

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Defendant is not entitled to summary judgment with respect to Mrs. Foust’s 

premises liability claim. 

Accordingly, 

IT IS ORDERED that Defendant’s motion for summary judgment is 

GRANTED IN PART AND DENIED IN PART in that summary judgment is 

granted to Defendant only with respect to Count II of Plaintiffs’ Complaint. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: February 29, 2016 

I hereby certify that a copy of the foregoing document was mailed to counsel of 

record and/or pro se parties on this date, February 29, 2016, by electronic and/or 

U.S. First Class mail. 

 s/ Richard Loury 

 Case Manager 

4:14-cv-13571-LVP-MKM Doc # 24 Filed 02/29/16 Pg 20 of 20 Pg ID 715