1 

UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MARCIA FAGAN, 

 Plaintiff, Case No. 15-cv-10211 

 Hon. Matthew F. Leitman 

v. 

SPEEDWAY, LLC, 

 Defendant. 

_________________________________/ 

ORDER GRANTING DEFENDANT’S MOTION 

FOR SUMMARY JUDGMENT (ECF #16) 

During a visit to a retail establishment owned and operated by Defendant 

Speedway, LLC (“Speedway”), Plaintiff Marcia Fagan (“Fagan”) fell and 

sustained injuries to her foot. She claims that a defective condition in Speedway’s 

parking lot – a large crack in the pavement (the “Crack”) – caused her injury. In 

this action, she asserts premises liability and nuisance claims against Speedway. 

Speedway has now moved for summary judgment (the “Motion”). (See ECF #16) 

For the reasons explained below, the Court GRANTS the Motion. 

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

 Speedway operates gas stations and convenience stores in Michigan and 

elsewhere. The Speedway location at issue in this case is located at 14 Mile and 

Haggerty Road in Oakland County, Michigan. (See Compl. at ¶ 4, ECF #1 at 2, 

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Pg. ID 2.) At this particular Speedway location, there is a small parking area 

adjacent to the convenience store with three or four marked parking spots. (See

Fagan Dep. at 19, ECF #16-3 at 7, Pg. ID 141.) 

 In the parking spot nearest the sidewalk (“Spot #1”), there is a crack in the 

asphalt that runs parallel to the curb. (See ECF #16-5 at 7, Pg. ID 160.) The crack 

is approximately a quarter of an inch deep and runs approximately the full length 

of the curb. (See id. at 5, Pg. ID 158; see also Linda Grammer Dep. at 21, ECF 

#16-7 at 8, Pg. ID 175.) Spot #1 and the Crack appear in the photographs below: 

 

 

(ECF #16-5 at 7, Pg. ID 160) (ECF #16-5 at 12, Pg. ID 165) 

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(ECF #16-5 at 6, Pg. ID 159.) 

 Linda Grammer (“Grammer”), a district manager at Speedway, has 

acknowledged that the Crack in Spot #1’s asphalt is “large.” (See Grammer Dep. 

at 32, ECF #16-7 at 10, Pg. ID 177.) But she insists that the Crack poses no 

danger. (See id. at 22, ECF #16-7 at 8, Pg. ID 175.) She testified that 

approximately 500 people walk through Speedway’s parking lot every day without 

incident and that no customer has ever complained about falling or tripping on the 

Crack. (See id. at 15-16, 30, ECF #16-7 at 6, 10, Pg. ID 173, 177). 

On September 3, 2014, Fagan arrived at Speedway at approximately 2:00 or 

3:00 p.m. (See Fagan Dep. at 16, ECF #16-3 at 6, Pg. ID 140.) She parked her car 

in Spot #1. (See id. at 19, ECF #16-3 at 7, Pg. ID 141.) When Fagan stepped out 

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of her car, she stepped directly onto the sidewalk/curb and made her way into the 

convenience store to purchase cigarettes. (See id. at 18, ECF #16-3 at 7, Pg. ID 

141.) Fagan did not notice (or step on) the Crack at that time. (See id. at 20, ECF 

#16-3 at 7, Pg. ID 141.) 

After Fagan made her purchase, she returned to her car. While she was 

opening her car door, her right foot slid off the sidewalk/curb, went down into the 

Crack, and “rolled.”1

 (Id. at 23, ECF #16-3 at 8, Pg. ID 142.) An x-ray later 

revealed that Fagan had fractured her foot in two places. (See id. at 29, ECF #16-3 

at 10, Pg. ID 144.) 

Fagan testified that she did not see the Crack before her fall because her car 

was parked directly on top of the Crack such that the Crack was “covered by [her] 

car.” (Id. at 23-24, ECF #16-3 at 8, Pg. ID 142.) Stated another way, Fagan said 

that her car “was concealing” the Crack. (Id. at 33, ECF #16-3 at 11, Pg. ID 145.) 

Fagan does not know how or why her foot slipped off the sidewalk/curb and 

into the Crack. (See id. at 22-24, ECF #16-3 at 8, Pg. ID 142.) She knows of no 

defects or unsafe conditions on the sidewalk/curb, itself, that could have caused her 

foot to slip off. (See id.) Indeed, she testified that she is “not claiming that the 

curb was defective.” (See id. at 24, ECF #16-3 at 8, Pg. ID 142.) 

 

1

 Fagan referred to the Crack as a “hole” in her deposition and her filings in this 

case. 

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 Fagan filed her Complaint in this action on January 20, 2015. (See ECF #1.) 

The Complaint does not contain separately number counts, but it appears to assert 

three claims: premises liability, nuisance, and negligent hiring/supervision of 

subcontractors. The central allegation in the Complaint is that the Crack 

constituted a defective condition on Speedway’s premises that posed an 

unreasonable risk of harm and caused her injuries. (See Compl. at ¶¶ 23-39, ECF 

#1 at 7-13, Pg. ID 7-13.) 

 On January 13, 2016, Speedway filed the Motion and moved for summary 

judgment. (See ECF #16.) The Court held on hearing on the Motion on May 11, 

2016. 

GOVERNING LEGAL STANDARD

A movant is entitled to summary judgment when it “shows that there is no 

genuine dispute as to any material fact . . . .” SEC v. Sierra Brokerage Servs., Inc.,

712 F.3d 321, 326–27 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc., 477 

U.S. 242, 251–52 (1986)) (quotations omitted). When reviewing the record, “the 

court must view the evidence in the light most favorable to the non-moving party 

and draw all reasonable inferences in its favor.” Id. “The mere existence of a 

scintilla of evidence in support of the [non-moving party’s] position will be 

insufficient; there must be evidence on which the jury could reasonably find for 

[that party].” Anderson, 477 U.S. at 252. Summary judgment is not appropriate 

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when “the evidence presents a sufficient disagreement to require submission to a 

jury.” Id. at 251-52. Indeed, “[c]redibility determinations, the weighing of the 

evidence, and the drafting of legitimate inferences from the facts are jury 

functions, not those of a judge . . . .” Id. at 255. 

ANALYSIS 

A. Michigan Law Governs Fagan’s Claims

The Court has subject matter jurisdiction over this action based upon the 

diversity of the parties’ citizenship and the amount in controversy. See 28 U.S.C. 

§ 1332(a)(1). In a diversity action, the Court applies the substantive law of the 

forum state – in this case, Michigan. See Jandro v. Ohio Edison Co., 167 F.3d 

309, 313 (6th Cir. 1999). 

B. Speedway Is Entitled to Summary Judgment on Fagan’s Premises 

Liability Claim 

“In a premises liability action, a plaintiff must prove the elements of 

negligence: (1) the defendant owed the plaintiff a duty, (2) the defendant breached 

that duty, (3) the breach was the proximate cause of the plaintiff's injury, and (4) 

the plaintiff suffered damages.” Buhalis v. Trinity Continuing Care Servs., 822 

N.W.2d 254, 258 (Mich. Ct. App. 2012) (quoting Benton v. Dart Props. Inc., 715 

N.W.2d 335 (Mich. Ct. App. 2006)). Speedway is entitled to summary judgment 

on Fagan’s premises liability claim because Fagan cannot satisfy the first element 

of that claim – that Speedway owed her a duty to protect her from the Crack. 

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In Hoffner v. Lanctoe, 821 N.W.2d 88, 94 (Mich. 2012), the Michigan 

Supreme Court reviewed “the rules governing . . . what duty a premises possessor 

owes to those who come onto his land.” The court explained that “[w]ith regard to 

invitees [like Fagan here], a landowner owes a duty to use reasonable care to 

protect invitees from unreasonable risks of harm posed by dangerous conditions 

on the owner’s land.” Id. (emphasis added). But a landowner “‘owes no duty to 

protect or warn’ of dangers that are open and obvious . . . .” Id. (quoting Riddle v. 

McLouth Steel, 485 N.W.2d 676 (Mich. 1992)). “Whether a danger is open and 

obvious depends on whether it is reasonable to expect that an average person with 

ordinary intelligence would have discovered it upon casual inspection.” Id.

(citation omitted). 

Here, as Fagan’s counsel candidly and properly conceded during the hearing 

before the Court, the Crack is plainly “open and obvious” when Spot #1 is 

unoccupied. Indeed, the photographs of Spot #1 reveal that the Crack is easily 

visible upon casual inspection when there is no car covering it. (See ECF #16-5 at 

6-7, 12, Pg. ID 159-60, 165.) And the Michigan Supreme Court has made clear 

that unobstructed common potholes are ordinarily “open and obvious” hazards that 

landowners have no duty to protect against. See Lugo v. Ameritech Corp., Inc., 

629 N.W.2d 384, 388 (Mich. 2001) (“Using a common pothole as an example, the 

condition is open and obvious and, thus, cannot form the basis of liability against a 

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premises possessor.”). Speedway insists that because the Crack was visible, it was 

akin to a “common pothole” and was an open and obvious hazard from which 

Speedway had no duty to protect Fagan. 

Fagan counters that Spot #1 was occupied (by her car) at the time of her 

accident, and she insists that the Crack was not visible under these circumstances. 

The evidence, when viewed in Fagan’s favor, supports this argument. Speedway’s 

own employees acknowledged that the Crack may not be visible when a vehicle 

parks very close to the curb in Spot #1. (See Grammer Dep. at 25, ECF #16-7 at 9, 

Pg. ID 176; Joan Hassberger Dep. at 24-25, ECF #16-8 at 9, Pg. ID 190.) And 

Fagan testified that when she parked in Spot #1, her car “covered” the Crack. (See

Fagan Dep. at 33-34, ECF #16-3 at 11, Pg. ID 145). Thus, there is evidence to 

support Fagan’s argument that at the moment she fell, the Crack was located 

directly “under her car” and was thus not visible upon casual inspection. (See 

Fagan’s Resp. Br. at 5, ECF #18 at 12, Pg. ID 326.) In light of this evidence, the 

Court cannot conclude as a matter of law that the Crack was open and obvious 

under the circumstances that exist here. Thus, Speedway is not entitled to 

summary judgment on its open and obvious defense.2

 

2

 Speedway argues that under Michigan law, a hazard may be open and obvious 

even when it is covered. In support of that argument, Speedway cites decisions in 

which the Michigan Court of Appeals held that holes covered by leaves were open 

and obvious and that black ice covered by snow was open and obvious. (See

Speedway Rep. Br. at 3, ECF #22 at 3, Pg. ID 420.) But those cases are 

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But the very evidence that Fagan cites to defeat Speedway’s open and 

obvious defense – i.e., the location of the Crack “under her car” at the time of her 

accident – is ultimately fatal to her premises liability claim. As noted above, 

landowners have a duty only to protect against “unreasonable risks of harm,” 

Hoffner, 821 N.W.2d at 94 (emphasis added), and when the Crack was entirely 

covered by Fagan’s car, it did not pose an unreasonable risk of harm to her (or to 

any other person). Simply put, there is no reason to believe that a pothole or crack 

in pavement that is completely covered by a vehicle poses an unreasonable threat 

to passersby. Indeed, under ordinary circumstances, a pothole or crack that is 

entirely covered by a parked car poses no risk to persons walking nearby because it 

is extremely unlikely that such persons would end up under the car and in contact 

 

distinguishable. In each of those cases, the courts stressed that the material 

covering the hazard – i.e., the leaves covering the hole and the snow covering the 

ice – was, itself, dangerous, and that the presence of that material should have 

alerted the plaintiffs that they were approaching a hazardous area. See, e.g., 

Williams v. Holiday Ventures Apartments., Inc., 2011 WL 711443, at *1 (Mich. Ct. 

App. Mar. 1, 2011) (“[E]ncountering a leaf covered walkway in the autumn in 

Michigan is not an unusual or unexpected circumstance or condition. Such a 

situation would alert the average individual to the potential danger for either a 

slippery condition due to the presence of the leaves or the possibility of the 

existence of a hidden condition underneath the leaves.”); Ververis v. Hartfield 

Lanes, 718 N.W.2d 382, 386 (Mich. Ct. App. 2006) (“[W]e hold as a matter of law 

that, by its very nature, a snow-covered surface presents an open and obvious 

danger because of the high probability that it may be slippery.”). Here, in contrast, 

the item covering the Crack – Fagan’s car – did not, itself, create, any danger, and 

nothing about her vehicle should have put Fagan on notice of potential danger. 

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with the pothole or crack.3

 Because the Crack did not pose an unreasonable risk of 

harm to Fagan at the moment her foot slipped into it, Speedway had no duty to 

protect Fagan from the Crack, and her premises liability claim based upon the 

Crack fails as a matter of law.4

The fact that Fagan did ultimately come into contact with the Crack does not 

tend to prove in any way that the Crack posed an unreasonable risk of harm at the 

time of her accident. Fagan’s foot made contact with the Crack through an unusual 

and unexpected series of events. For some unknown and unexplained reason, her 

foot slipped off of a sidewalk/curb that was properly maintained and not defective 

in any way (see Fagan Dep. at 20, 24, ECF #16-3 at 7, 8, Pg. ID 141, 142), and her 

foot ended up beneath her car in the Crack. This unique sequence of events says 

nothing about whether the Crack posed any general risk to persons walking by. 

 

3

 Pretend for a moment that a witness was standing behind Fagan’s vehicle 

immediately before her accident and that the witness saw the Crack located (in 

Fagan’s words) “under her car.” (Pl.’s Resp. Br. at 5, ECF # 18 at 12, Pg. ID 326.) 

If, at that moment, someone asked the witness whether the Crack posed an 

unreasonable risk of harm to Fagan (or anyone else), the witness (and a 

hypothetical reasonable person) would most surely say “no” because the witness 

would recognize that the odds of Fagan (or anyone else) ending up under the 

vehicle and in contact with the Crack were remote. 

4

 Unfortunately for Fagan, this is a case of “heads Speedway wins, tails Fagan 

loses.” If the Crack was not entirely covered by her vehicle, then it would have 

been discoverable upon casual observation and, therefore, open and obvious. If the 

Crack was entirely covered by her vehicle, then the Crack did not pose an 

unreasonable risk of harm. In both circumstances, Speedway owed no duty to 

protect Fagan against the Crack. 

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Finally, the primary cases cited by Fagan do not save her premises liability 

claim. In MacAskill v. Kroger Co., 2015 WL 966245 (Mich. Ct. App. 2015) and 

Pippin v. Atallah, 626 N.W.2d 911 (Mich. Ct. App. 2001), the Michigan Court of 

Appeals held that two property features were not open and obvious. But those 

decisions do not help Fagan because (for the reasons explained immediately above) 

her claim fails even if the Crack was not open and obvious. 

Accordingly, the Court will grant summary judgment in favor of Speedway 

on Fagan’s premises liability claim. 

C. Speedway is Entitled to Summary Judgment on Fagan’s Nuisance 

Claim 

“Historically, Michigan has recognized two distinct versions of nuisance, 

public nuisance and private nuisance.” Adkins v. Thomas Solvent Co., 487 N.W.2d 

715, 719 (Mich. 1992). Fagan cannot establish either “version” here. 

 “A private nuisance is a nontrespassory invasion of another’s interest in the 

private use and enjoyment of land.” Id. Fagan does not allege that Speedway 

interfered with the use and enjoyment of her land, and thus she may not maintain a 

claim for a private nuisance. See Marble v. Dobson, 1998 WL 1989918, at *1 n.1 

(Mich. Ct. App. 1998) (explaining that a plaintiff who suffered an injury after 

falling into a pothole “clearly” had “no cause of action for a private nuisance” 

because “no land owned by plaintiff [was] involved” in his claim). 

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 “A public nuisance involves the unreasonable interference with a right

common to all members of the general public.” Sholberg v. Truman, 852 N.W.2d 

89, 92 (Mich. 2014) (emphasis added). Thus, to be a public nuisance, an activity 

or condition “must be harmful to the public health; or create an interference in the 

use of a way of travel; or affect public morals; or prevent the public from the 

peaceful use of their land and the public streets.” Garfield Tp. v. Young, 82 

N.W.2d 876, 879 (Mich. 1957) (citations omitted). And the interference with these 

public rights must be “significant” for a condition to rise to the level of a public 

nuisance. Cloverleaf Car Co. v. Phillips Petroleum Co., 540 N.W.2d 297, 300 

(Mich. Ct. App. 1995). 

The existence of the Crack on Speedway’s property does not fit within any 

of the categories of “public nuisance” recognized by the Michigan Supreme Court. 

Indeed, the only category that even arguably applies is “harm to the public health,” 

but the undisputed evidence conclusively establishes that the Crack did not 

significantly threaten the greater public health. As described above, Grammer 

testified that approximately 500 people walk through the Speedway parking lot 

each and every day, and nobody other than Fagan has ever reported being injured 

by, nor even complained about, the Crack. And the Crack stands in sharp contrast 

to the conditions and/or activities that have been deemed sufficiently threatening to 

the public health to constitute a public nuisance. See, e.g., Organic Chemical Site 

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PRP Grp. v. Total Petroleum, Inc., 58 F. Supp. 2d 755, 765 (W.D. Mich. 1999) 

(release of hazardous chemicals could pose sufficient threat to public health to 

constitute public nuisance); Norton Shores v. Carr, 265 N.W.2d 802, 806 (Mich. 

Ct. App. 1978) (business operation that caused black dirt dust to blow off of 

property constituted public nuisance). Under these circumstances, the Crack does 

not amount to a public nuisance. 

Notably, Fagan has not cited a single decision in which any Michigan court 

has held that a pothole or pavement crack on private property amounts to a public 

nuisance. And courts in other states have flatly rejected the notion that a pothole in 

the parking lot of a retail establishment may amount to a public nuisance.5

 Fagan’s 

claim that the Crack constituted a public nuisance therefore fails as a matter of 

law.6

 

5 See, e.g., Ricchiuiti v. The Home Depot, Inc., 412 F. Supp. 2d 456, 460 (E.D. Pa. 

2005) (rejecting public nuisance claim based on pothole in parking lot because “[a] 

pothole in a parking lot affects [only] a very small segment of the community, 

namely the users of the lot”; also noting that “research has not uncovered any 

precedent where a pothole in parking lot used by the public has been deemed a 

‘public nuisance.’”); Burns v. Simon Property Grp., L.L.P., 996 N.E.2d 1208, 1213 

(Ill. App. Ct. 2013) (rejecting public nuisance claim because “[t]he deterioration of 

the Macy’s parking lot did not affect the ‘community at large’ and instead affected 

a defined segment of the community, namely, those using the Macy’s parking lot 

. . . .”); Wrighten v. Rapid Car Wash, 2007 WL 4171626, at *4-5 (Conn. Super. Ct. 

2007) (same). 

6

 Fagan purports to assert claims for “negligent nuisance,” “nuisance in fact,” and 

“nuisance per se.” But these are subcategories of public and private nuisances. 

See Johnson v. Tilton, 2002 WL 31310160, at *3-4 (Mich. Ct. App. Oct. 15, 2002) 

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CONCLUSION

 For the reasons stated above, IT IS HEREBY ORDERED that Speedway’s 

Motion for Summary Judgment (ECF #16) is GRANTED in its entirety.7

s/Matthew F. Leitman 

 MATTHEW F. LEITMAN 

 UNITED STATES DISTRICT JUDGE 

Dated: May 23, 2016 

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

and/or counsel of record on May 23, 2016, by electronic means and/or ordinary 

mail. 

 s/Holly A. Monda 

 Case Manager 

 (313) 234-5113 

 

(“Public nuisance can be further broken down into two distinct categories: 

nuisance per se . . . and nuisance in fact.”). Since Fagan cannot establish either a 

public or private nuisance, she cannot prevail under any of these theories. 

7

 Fagan did not respond to Speedway’s arguments attacking her claim that 

Speedway breached a duty “to contact and hire competent subcontractors and 

general contractors . . . to plan, construct and/or maintain the parking lot.” (See the 

Motion at 19-24, ECF #16 at 33-38, Pg. ID 110-15.) Accordingly, this claim is 

deemed abandoned. See Bauer v. County of Saginaw, 111 F. Supp. 3d 767, 783 

(E.D. Mich. 2015) (“Generally, a party may abandon claims by failing to address 

or support them in a response to a motion for summary judgment.”). 

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