UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JENNIFER KAHN,

Plaintiff, Case No. 14-13333

v. Hon. Gerald E. Rosen

TARGET CORPORATION,

Defendant.

____________________________________/

OPINION AND ORDER DENYING

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

At a session of said Court, held in

the U.S. Courthouse, Detroit, Michigan

on May 2, 2016 

PRESENT: Honorable Gerald E. Rosen

United States District Judge

I. INTRODUCTION

This diversity “slip and fall” action is presently before the Court on the

motion for summary judgment filed by Defendant Target Corporation. On March

29, 2014, Plaintiff Jennifer Kahn slipped and fell in a hallway directly outside the

women’s bathroom at a Target store located in Farmington Hills, Michigan.

Defendant now moves for summary judgment, arguing that there is no evidence

that it created, knew of, or was on notice of the condition that allegedly caused

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Plaintiff to fall — namely, water on the floor — and that it therefore did not

breach a duty owed to Plaintiff by failing to warn her of a dangerous condition.

Defendant’s motion has been fully briefed by the parties. Having reviewed

the parties’ briefs and accompanying exhibits, as well as the remainder of the

record, the Court finds that the relevant allegations, facts, and legal arguments are

adequately presented in these written submissions, and that oral argument would

not aid the decisional process. Accordingly, the Court will decide Defendant’s

motion “on the briefs.” See Local Rule 7.1(f)(2), U.S. District Court, Eastern

District of Michigan. This opinion sets forth the Court’s rulings on this motion.

II. FACTUAL BACKGROUND

On March 29, 2014, Plaintiff Jennifer Kahn went to a Target store located

on Grand River Avenue in Farmington Hills, Michigan. It was a clear day with no

rain or snow. (Defendant’s Motion for Summary Judgment, Ex. B, Plaintiff’s Dep.

at 30.) Upon entering the store, Plaintiff proceeded directly to the women’s

restroom, which was located down a hallway near the entrance to the store. (See

id. at 31.) Plaintiff testified that the hallway appeared to be clear and uncluttered,

with no water on the floor and no caution signs within her view. (See id. at 31,

38.) In addition, Plaintiff did not see any Target employees in the hallway as she

approached the restroom. (See id. at 31.) She entered the bathroom without

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incident, and then exited approximately five minutes later. (See id. at 32-33.)

Upon exiting the restroom, Plaintiff slipped and fell in the hallway

immediately adjacent to the bathroom entrance. (See id. at 32-33.) She landed flat

on her back and hit her head on the floor. (See id. at 32-34.) Plaintiff testified that

she was “being cautious” as she exited the restroom, since she had recently

undergone back surgery. (Id. at 35, 42.) She further testified that there were no

Target employees or other customers in the hallway when she fell, nor did she see

a wet floor sign in the area. (See id. at 36, 38.) Although Plaintiff could not recall

seeing anything on the floor where she fell and did not notice any sort of puddle,

she surmised that she had slipped on a clear liquid such as water, since her pant

leg was wet but the substance on her pants had no color and was not thick or

slushy. (See id. at 34-37.)

As she lay on the floor after her fall, Plaintiff looked around and yelled for

help. (See id. at 37.) When no one responded, she stood up and managed to make

her way down the hallway toward the front of the store, where she caught the

attention of a woman, Raine Pavlichek, who worked at the Starbucks counter

located near the store entrance. (See id.; see also Plaintiff’s Response, Ex. D,

Pavlichek Dep. at 26.) Plaintiff informed Ms. Pavlichek that she “couldn’t stand

up” and was suffering from “excruciating pain in [her] back,” and she then

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slumped against a wall and slid slowly to the floor. (Plaintiff’s Dep. at 39-40.) 

Ms. Pavlichek immediately called for security and then focused her attention on

Plaintiff, providing her with a plastic bag in case she became sick and a paper

towel to place under her head. (See Pavlichek Dep. at 26-27.)1

Three Target employees responded to Ms. Pavlichek’s call for assistance. 

The first employee to arrive at the scene, Jeronda Williams, asked Plaintiff what

had happened and if she was okay, and Plaintiff responded that she had fallen

outside the restroom. (See Plaintiff’s Response, Ex. G, Williams Dep. at 18-19.) 

Ms. Williams then radioed for the leader on duty to report to Plaintiff’s location

next to the Starbucks counter. (See id. at 19.) Once other employees arrived to

assist Plaintiff, Ms. Williams checked the hallway where Plaintiff had fallen, but

she did not see any debris, water, or other liquid on the floor, nor did she see any

caution or wet floor signs in the hallway. (See id. at 20-21.) In addition, Ms.

Williams testified that she radioed the cart attendant, Ke’Yuan Rosemond, to ask

whether he had done any mopping in the hallway that day, and Mr. Rosemond

1Ms. Pavlichek testified that about 30 or 45 minutes after Plaintiff was taken from

the store by paramedics, she inspected the area where Plaintiff reported that she had

fallen. (See id. at 29-32.) Ms. Pavlichek stated that she did not see anything on the floor

that could have caused Plaintiff to fall, nor did she observe any wet floor signs in the

hallway where Plaintiff had fallen. (See id. at 31-32.) 

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responded that he had not.

2

The store team leader and leader on duty, Kimberly Kennedy, also reported

to the scene and asked Plaintiff about the incident, and Plaintiff responded that she

had fallen and hurt her back. (See Plaintiff’s Response, Ex. B, Kennedy Dep. at

22-23.) Ms. Kennedy then asked Plaintiff if she needed an ambulance, and when

Plaintiff responded that she did, Ms. Kennedy instructed another Target employee

to call for one. (See id. at 23.) As she waited with Plaintiff for the paramedics to

arrive, Ms. Kennedy asked Plaintiff the questions called for in a “Guest Incident

Report” used by Target, and this report reflects Plaintiff’s responses that she fell in

the hallway leading to the restroom and that this fall was caused by “something

wet on [the] ground.” (Defendant’s Motion, Ex. A, Guest Incident Report; see

also Kennedy Dep. at 26-27, 34-37.)3

After Plaintiff was taken from the store by paramedics, Ms. Kennedy

inspected the area where Plaintiff had fallen, and she testified that the floor in this

area was clean and dry, that there was no indication that the floor had recently

2Mr. Rosemond likewise testified at his deposition that on the date of Plaintiff’s

slip and fall, he had not mopped the hallway leading to the restrooms. (See Defendant’s

Reply, Ex. F, Rosemond Dep. at 51.)

3According to Plaintiff, Ms. Kennedy noticed that her pants were wet, (see

Plaintiff’s Dep. at 43), but Ms. Kennedy nonetheless checked “no” on the portion of the

incident report inquiring whether the guest’s clothes were “wet or damaged,” (see Guest

Incident Report at 1).

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been mopped, and that she did not see any cones or warning signs alerting

customers to a wet floor. (See Kennedy Dep. at 40-43.) Ms. Kennedy also asked

two other Target employees, Ms. Williams and Brandon Joyce, to confirm that the

hallway where Plaintiff fell was dry and free of debris. (See id. at 40.) She then

went to the store’s asset protection office to complete her investigative report and

to secure statements from the other individuals who had responded to the incident. 

(See id. at 40-41.)

The third Target employee who responded to Ms. Pavlichek’s call for

assistance was team leader Brandon Joyce. Because Mr. Joyce was in training for

a senior team leader position, he remained in the area and observed Ms. Kennedy

as she spoke with Plaintiff regarding her fall and injuries, but he did not have any

direct interactions with Plaintiff. (See Plaintiff’s Response, Ex. E, Joyce Dep. at

11-12.) Mr. Joyce also glanced around the area where Plaintiff had fallen, but he

did not notice any wet spots or debris that could have caused the incident. (See id.

at 18.) He did, however, observe a wet floor sign in the hallway near the janitor’s

closet, and he surmised that there “could have been a spill” in the area or that a

cart attendant could have put the sign out after mopping the area. (Id. at 19-20.) 

According to Mr. Joyce, it was not Target’s usual practice to leave wet floor signs

out on store property or to store these signs in the hallway near the guest

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bathrooms; rather, he stated that these signs typically were placed in the area of a

spill or where a floor had been mopped. (See id. at 20-21.)4

Plaintiff alleges that she sustained multiple injuries, including a lumbar

fracture, in her March 29, 2014 fall at the Target store, and that she continues to

experience pain in her back, legs, hip, and neck as a result of this fall. 

Accordingly, in a suit filed in state court on April 30, 2014 and removed to this

Court on August 27, 2014, Plaintiff has asserted a state-law claim of negligence

against Defendant Target Corporation, alleging that Defendant breached a duty of

care owed to Plaintiff as a business invitee at Defendant’s store in Farmington

Hills, Michigan.

III. ANALYSIS

A. The Standards Governing Defendant’s Motion

Through the present motion, Defendant seeks summary judgment in its

favor on Plaintiff’s state-law claim of premises liability. Under the pertinent

4The cart attendant, Ke’Yuan Rosemond, also was asked about Target’s use and

storage of wet floor signs, but his testimony was somewhat more equivocal. He initially

testified, like Mr. Joyce, that if there was a wet floor sign in the area of the hallway where

Plaintiff fell, this would necessarily mean either that this area had been mopped or that

there was a spill. (See Plaintiff’s Response, Ex. F, Rosemond Dep. at 26-27.) He later

stated, however, that Target regularly kept one or more wet floor signs in the hallway near

the restrooms for ready access by its employees, while additional wet floor signs were

stored in a maintenance closet located along this hallway. (See id. at 38-39.)

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Federal Rule governing this motion, summary judgment is proper “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). As the Supreme

Court has explained, “the plain language of Rule 56[] mandates the entry of

summary judgment, after adequate time for discovery and upon motion, against a

party who fails to make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party will bear the burden

of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548,

2552 (1986).

In deciding a motion brought under Rule 56, the Court must view the

evidence “in a light most favorable to the party opposing the motion, giving that

party the benefit of all reasonable inferences.” Smith Wholesale Co. v. R.J.

Reynolds Tobacco Co., 477 F.3d 854, 861 (6th Cir. 2007). Yet, the nonmoving

party may not rely on bare allegations or denials, but instead must support a claim

of disputed facts by “citing to particular parts of materials in the record, including

depositions, documents, electronically stored information, affidavits or

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

materials.” Fed. R. Civ. P. 56(c)(1)(A). Moreover, any supporting or opposing

affidavits “must be made on personal knowledge, set out facts that would be

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admissible in evidence, and show that the affiant or declarant is competent to

testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). Finally, “[a] mere scintilla

of evidence is insufficient” to withstand a summary judgment motion; rather,

“there must be evidence on which the jury could reasonably find for the nonmoving party.” Smith Wholesale, 477 F.3d at 861 (internal quotation marks and

citation omitted).

B. Plaintiff Has Raised Issues of Fact as to Whether One of Defendant’s

Employees Created an Unsafe Condition That Caused Plaintiff’s Fall

and Resulting Injury.

Under well-settled Michigan law, a plaintiff must establish four elements in

support of a claim of negligence: (1) that the defendant owed a legal duty to the

plaintiff; (2) that the defendant breached this duty; (3) that the plaintiff suffered

damages; and (4) that the defendant’s breach was a proximate cause of the

damages suffered. See Schultz v. Consumers Power Co., 443 Mich. 445, 506

N.W.2d 175, 177 (1993). In this case, Plaintiff states without contradiction that

Defendant owed her a duty as a “business invitee” of the Target store she was

visiting at the time of her fall. See Stitt v. Holland Abundant Life Fellowship, 462

Mich. 591, 614 N.W.2d 88, 92 (2000). The issue before the Court, then, focuses

on the second element of Plaintiff’s claim of negligence — namely, whether

Defendant breached a duty owed to Plaintiff as a business invitee.

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A business owner is not an absolute “insurer of the safety of invitees,” but

instead owes only a duty “to exercise reasonable care for their protection.” 

Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 418 N.W.2d 381, 383

(1988) (internal quotation marks and footnote with citations omitted). More

specifically, a store owner such as Defendant here is liable for injury resulting

from an unsafe condition on the premises only if: (1) the condition is caused by

the active negligence of the store owner or its employees; (2) the condition is

known to the owner; or (3) the condition “is of such a character or has existed a

sufficient length of time that [the owner] should have had knowledge of it.” 

Serinto v. Borman Food Stores, 380 Mich. 637, 158 N.W.2d 485, 486 (1968)

(internal quotation marks, emphasis, and citation omitted); see also Whitmore v.

Sears, Roebuck & Co., 89 Mich. App. 3, 279 N.W.2d 318, 320-21 (1979). In other

words, a business owner must have “either created the dangerous condition or had

actual or constructive notice of the condition.” Sparks v. Wal-Mart Stores, Inc.,

361 F. Supp.2d 664, 668 (E.D. Mich. 2005). It is Plaintiff’s burden to produce

sufficient evidence to establish a breach of this standard of care. See Whitmore,

279 N.W.2d at 321.

In this case, Plaintiff argues that the evidence in the record would permit the

inference that one of Defendant’s employees created the dangerous condition that

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caused her to slip and fall in Defendant’s store. First, Plaintiff points to her own

testimony as giving rise to the inference that she slipped on a wet substance on the

floor in the hallway outside of the women’s restroom, where she testified that she

“slipped on something” in this hallway and then discovered that her “pant leg was

wet” after her fall. (Plaintiff’s Dep. at 34.) Although Defendant suggests that this

claim of a wet spot on the floor rests upon a mere “assumption that liquid was on

the floor,” (Defendant’s Reply Br. at 3 (emphasis in original)), Plaintiff’s

testimony that she observed a clear liquid on her pant leg after her fall removes the

cause of this fall from the realm of speculation, and instead serves as

circumstantial evidence of a condition that could have led Plaintiff to slip and fall.

Nonetheless, Defendant insists that the record is bereft of evidence that it

had actual or constructive notice of the condition suggested by Plaintiff’s

deposition testimony. Again, however, the Court agrees with Plaintiff that the

record, when viewed in a light most favorable to her as the non-moving party,

would support the inference that one of Defendant’s employees created the

dangerous condition that caused Plaintiff’s slip and fall. In particular, Plaintiff

points to the testimony of one of Defendant’s employees, Brandon Joyce, that

upon inspecting the hallway in which Plaintiff fell, he observed a wet floor sign in

the area, leading him to believe that there had been a spill in this hallway or that it

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had recently been mopped. (See Plaintiff’s Response, Ex. E, Joyce Dep. at 19-20.) 

In addition, Mr. Joyce and the Starbucks employee who initially assisted Plaintiff

after her fall, Raine Pavlichek, both testified that wet floor signs were not

regularly kept in this hallway, and that the presence of such a sign was indicative

of a wet floor due to a spill or routine cleaning. (See id. at 20-21; see also

Plaintiff’s Response, Ex. D, Pavlichek Dep. at 31-32.)5 Finally, another of

Defendant’s employees, Ke’Yuan Rosemond, testified that a Target employee

would remain in the area in the event of a spill, (see Rosemond Dep. at 26-27), and

the leader on duty at the time of Plaintiff’s fall, Kimberly Kennedy, similarly

testified that a Target employee would “block . . . off” the area around a spill until

it was cleaned up, (see Plaintiff’s Response, Ex. B, Kennedy Dep. at 49).

The totality of this testimony, viewed in a light most favorable to Plaintiff,

supports the inference that one of Defendant’s employees had recently mopped the

hallway where Plaintiff slipped and fell. According to this testimony, the wet

5As noted earlier, the testimony of the cart attendant on duty on the day of

Plaintiff’s slip and fall, Ke’Yuan Rosemond, could also be viewed as supportive of this

proposition — namely, that if a wet floor sign were present in the area of Plaintiff’s fall,

this would mean either that the area had been mopped or that there had been a spill. (See

Plaintiff’s Response, Ex. F, Rosemond Dep. at 26-27.) Mr. Rosemond later testified,

however, that there was “always a wet floor sign” kept in this hallway, so that store

employees could quickly retrieve a sign without “run[ning] all the way to the

[maintenance] closet” in the event of a spill in the area. (Id. at 38-39.) For present

purposes, this apparent inconsistency in Mr. Rosemond’s testimony must be resolved in

favor of Plaintiff as the non-moving party.

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floor sign that Mr. Joyce observed in the hallway was suggestive of either

mopping or a spill, and the record lacks any indicia of a spill, such as evidence

that a Target employee remained in the vicinity or blocked off the area. To be

sure, the cart attendant on duty, Mr. Rosemond, has denied that he mopped the

hallway leading to the restrooms on the date of Plaintiff’s slip and fall. (See

Rosemond Dep. at 51.) Contrary to Defendant’s assertion, however, Plaintiff’s

opposition to Defendant’s present motion does not rest upon the bare hope that a

trier of fact might disbelieve Mr. Rosemond’s testimony on this point. Rather,

Plaintiff relies on affirmative testimony and other evidence that, if credited by the

trier of fact, would lead to a factual finding that diverges from the account given

by Mr. Rosemond at his deposition. It must be left to the trier of fact to determine

the weight to be given to this evidence, and to choose among the competing

accounts of Plaintiff’s fall that are supported by the record.

As Plaintiff observes, the courts have held under analogous facts that a

claim of premises liability should be heard and decided by a jury, and not by the

court as a matter of law. In Vella v. Hyatt Corp., 166 F. Supp.2d 1193, 1195 (E.D.

Mich. 2001), for example, the plaintiff fractured her hip when she slipped and fell

as she entered an elevator in the defendant’s hotel. The plaintiff admitted at her

deposition that she did not “know how she fell or what made her fall,” but she

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noticed that the elevator floor was “very slippery” and that her stockings were

“soaked” after her fall. Vella, 166 F. Supp.2d at 1199. In light of this testimony,

the court rejected the defendant’s contention that the plaintiff’s claim of

negligence rested upon pure conjecture, explaining that the record provided a

sufficient basis for attributing the plaintiff’s fall to a “wet and slippery floor.” 166

F. Supp.2d at 1200; see also Brandt v. Starwood Hotels & Resorts Worldwide,

Inc., No. 02-10285, 2004 WL 2958661, at *8 (E.D. Mich. Dec. 14, 2004) (finding

that the plaintiff had produced sufficient “circumstantial evidence” of the cause of

her fall, where she testified that her foot “started to slip forward” as she descended

the steps of a hotel operated by the defendant, and where she discovered “water on

her pant leg after the fall and observ[ed] . . . water on the steps near where she

fell”). The court further concluded that there was sufficient evidence that the

defendant “either created or should have known of the hazardous condition” that

allegedly caused the plaintiff to fall, where the defendant “ha[d] the [elevator]

floors cleaned and/or polished on a nightly basis,” and where the plaintiff’s expert

opined that the elevator floor “was made of material that created a walking surface

which was dangerously slippery.” Vella, 166 F. Supp.2d at 1200-01.

Similarly, in Berryman v. K Mart Corp., 193 Mich. App. 88, 483 N.W.2d

642, 644 (1992), the plaintiff slipped and fell in the defendant’s store, noticing

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after she fell “that the floor was wet and that the ‘wet streaky marks on the floor’

were consistent with freshly mopped floors she had seen in the past.” The plaintiff

further testified that “there were no signs or warnings that the floor was wet.” 

Berryman, 483 N.W.2d at 646. In the course of discovery and again at trial, the

defendant “admitted that its premises were maintained solely by its employees.”

483 N.W.2d at 644. The court found that this evidence was sufficient to support a

jury’s finding “that [the] defendant caused the condition that led to [the plaintiff’s]

fall,” where the record gave rise to a “logical inference” that the “defendant’s

employees had mopped the floor on which [the plaintiff] had fallen and that they

had failed to post adequate warning signs.” 483 N.W.2d at 646.

This same conclusion is warranted under the comparable record presented

here. Plaintiff’s own testimony, if credited by the trier of fact, would support a

finding that her slip and fall was caused by a wet spot or substance on the floor of

the hallway leading to the women’s restroom. Moreover, in light of the testimony

of one or more of Defendant’s employees (i) that a wet floor sign was seen in the

area where Plaintiff fell, and (ii) that the placement of this sign suggested that the

area had recently been mopped, a trier of fact could permissibly conclude that one

of Defendant’s employees created the dangerous condition that caused Plaintiff’s

fall by mopping the area where she fell. It follows that issues of fact preclude an

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award of summary judgment in Defendant’s favor on Plaintiff’s state-law claim of

negligence.

IV. CONCLUSION

For the reasons set forth above,

NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s April

23, 2015 motion for summary judgment (docket #16) is DENIED.

s/Gerald E. Rosen 

United States District Judge

Dated: May 2, 2016

I hereby certify that a copy of the foregoing document was served upon the parties

and/or counsel of record on May 2, 2016, by electronic and/or ordinary mail.

s/Julie Owens 

Case Manager, (313) 234-5135

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