UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

HEIDI PROCTOR, as next friend of, 

ETHAN PROCTOR, a minor, and 

HEIDI PROCTOR and BRIAN PROCTOR, 

individually, 

Plaintiffs, 

v. 

Case No. 14-14824 

Hon. Terrence G. Berg 

PANERA, LLC, 

Defendant. 

OPINION AND ORDER DENYING DEFENDANT’S SECOND MOTION FOR 

SUMMARY JUDGMENT (DKT. 45) 

This is a case about a young boy who reached into a crevice between the seat 

cushions in a booth at Panera Bread and punctured his finger on a medical needle 

that was there. The Court already entered summary judgment for Defendant on all 

but Plaintiffs’ premises liability claim. Dkt. 35. A detailed discussion of the facts of 

this case appears in the Court’s previous summary judgment order. The Court will 

not repeat what is contained in that order because the question currently before the 

Court is simple and narrow: Does the Michigan Supreme Court’s recent opinion in 

Lowrey v. LMPS & LMPJ, Inc., 500 Mich. 1 (2016) (Lowrey II), require this Court to 

reverse course from its previous ruling and grant summary judgment to Defendant 

on Plaintiffs’ premises liability claim? 

In the Court’s first summary judgment order, it relied on Lowrey v. LMPS & 

LMPJ, Inc., 2015 WL 8484482 (Mich. Ct. App. Dec. 10, 2015) (Lowrey I), for the 

proposition that to obtain summary judgment on a premises liability claim, a property 
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owner must present evidence of what constitutes a “reasonable inspection” of the 

property. Dkt. 35, Pg. ID 845. The Court then concluded that Defendant had failed to 

present evidence showing what a reasonable inspection of its booths would entail. 

Dkt. 35, Pg. ID 846. 

Lowrey II reversed Lowrey I in part because the Michigan Court of Appeals 

required the property owner to present such evidence. Lowrey II, 500 Mich. at 8-9. 

As the Michigan Supreme Court made clear, that Court “has never required a 

defendant to present evidence of a routine or reasonable inspection” to prove “a 

premises owner’s lack of constructive notice of a dangerous condition of its property.” 

Id. at 10. So Defendant is correct that Lowrey II changes the rule of Lowrey I upon 

which the Court based its denial of summary judgment. But even in light of the 

holding in Lowrey II, Defendant has not demonstrated that it is entitled to summary 

judgment. 

In Lowrey II, the Michigan Supreme Court restated the rule that “[a] plaintiff 

had to establish that [a] defendant, as a premises owner, possessed actual or 

constructive notice of the dangerous condition.” 500 Mich. at 10. So to avoid summary 

judgment, a plaintiff must “proffer evidence sufficient to demonstrate a question of 

fact regarding defendant's actual or constructive notice of the hazardous condition.” 

Id. at 11. Thus a defendant may establish its entitlement to summary judgment “by 

demonstrating that [a] plaintiff failed to present sufficient evidence of notice” of the 

hazard. Lowrey II, 500 Mich. at 10. 
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As the Court noted in its first summary judgment order, the only type of notice 

at issue here is constructive notice, Dkt. 35, Pg. ID 845, which Plaintiffs can show 

through evidence of the needle’s “character or of the duration of its presence.” 

Lowrey II, 500 Mich. at 11. Specifically, to prevail on their claim Plaintiffs must show 

that “the hazard was of such a character, or had existed for a sufficient time, that a 

reasonable premises possessor would have discovered it.” Id. at 11-12. So to survive 

Defendant’s motion, Plaintiffs must have presented evidence of the needle’s character 

or duration in the booth sufficient to establish a genuine issue of material fact such 

that a reasonable jury could find that a reasonable possessor of premises would have 

discovered the needle. 

Defendant argues that Plaintiffs have presented no evidence that the needle was 

of such a character that a reasonable premises possessor would have discovered it.1

Dkt. 45, Pg. ID 936. For support, Defendant compares this case to the facts in Lowrey, 

where the plaintiff allegedly slipped on wet stairs after having consumed a number 

of shots of alcohol, and for evidence that the stairs were wet submitted that her pants 

felt wet after she fell. Lowrey II, 500 Mich. at 12. Defendant’s comparison is not well 

taken. In Lowrey, there was no evidence that there was even a hazard; the plaintiff 

did not have a picture of the allegedly wet steps or eye-witness testimony that there 

was a puddle on one of the steps. Id. at 12. Here, however, there are multiple pictures 

 

1 Defendant presents a similar argument about the duration of the needle’s presence 

in the booth, but the Court need not reach that argument because Plaintiff has 

presented sufficient evidence of the needle’s character to create a genuine issue of 

fact on whether Defendant had constructive notice. 
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of the needle. See Dkt. 45-8. And as the Court has already concluded, the size and 

nature of the needle is sufficient evidence to permit a jury to conclude that “a routine, 

workmanlike wiping and inspection of the seating area of the booth, in the area where 

EP was injured, would have resulted in the discovery of the needle or the mitigation 

of the hazard it created.” Dkt. 35, Pg. ID 847. If a jury were to conclude that a 

reasonable owner of a restaurant would conduct a routine, workmanlike wiping and 

inspection, it could further conclude that such a reasonable premises possessor would 

have discovered the needle, and thus could find for Plaintiffs. Consequently, 

Defendant’s motion is DENIED. 

SO ORDERED. 

Dated: May 9, 2017 s/Terrence G. Berg 

TERRENCE G. BERG 

UNITED STATES DISTRICT JUDGE 

Certificate of Service 

I hereby certify that this Order was electronically submitted on May 9, 2017, 

using the CM/ECF system, which will send notification to all parties. 

 s/A. Chubb 

Case Manager