UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

MICHAEL CAMPBELL, 

 Plaintiff, Civil Case No. 15-12404 

 Honorable Linda V. Parker 

v. 

SPEEDWAY LLC, 

 Defendant. 

__________________________________/ 

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 18] 

 Plaintiff Michael Campbell (“Plaintiff”) filed this lawsuit in state court 

against Defendant Speedway LLC (“Defendant”) after Plaintiff tripped in the 

handicap parking area of Defendant’s parking lot. Defendant removed the action 

to federal court on the basis of diversity jurisdiction on July 6, 2015. (ECF No. 1.) 

In the Complaint, Plaintiff asserts one count of premises liability against Defendant 

under state law and the Americans with Disabilities Act.1

 (Id.) Presently before 

the Court is Defendant’s motion for summary judgment, filed pursuant to Federal 

Rule of Civil Procedure 56. Finding the facts and legal arguments sufficiently 

presented in the parties’ pleadings, the Court is dispensing with oral argument with 

 

1

 In the Complaint, Plaintiff also mentions that Defendant breached their duty 

through “[a]ny and all other negligence that becomes known through the course of 

litigation.”

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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. (ECF No. 18.) 

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 March 18, 2014, at around 7:30 pm, Plaintiff arrived at Defendant’s gas 

station located in Davison, Michigan. (ECF Nos. 20 at Pg ID 180; 18-2 at Pg ID 

112.) Plaintiff’s wife parked her vehicle in a handicap parking spot upon arrival 

while Plaintiff was located in the passenger seat. (ECF No. 18 at Pg ID 79, 89.) 

When Plaintiff exited the vehicle, he took one to two steps forward and “tripped 

and fell on at least [a] two-inch raised crack that was located in the handicap 

space.” (ECF No. 18-2 at Pg ID 113.) As a result, Plaintiff alleges that he suffers 

and will continue to suffer from multiple medical injuries, including hematoma on 

the brain; fracture at C4-C5; multiple stitches to his face; and scarring to the neck 

and head. (Id. at Pg ID 113-14.) 

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 Plaintiff tripped over “an uneven area of abutting concrete slabs.” (ECF No. 

20 at Pg ID 188.) Defendant states that the difference in height between the two 

slabs is “far less than the claimed two inch height difference.” (ECF No. 18 at Pg 

ID 91.) While Plaintiff’s complaint alleges the height difference was two inches 

(Id. at Pg ID 113), Plaintiff’s response to Defendant’s motion for summary 

judgment states the difference was “between an inch or two inches” (ECF No. 20 

at Pg ID 205). 

Plaintiff does not recall anything blocking his vision when he exited from 

the vehicle. (ECF No. 18 at Pg ID 90.) However, it was dark when Plaintiff and 

his wife arrived to purchase a cup of coffee from Defendant. (ECF No. 20 at 189.)

III. Defendant’s Arguments and Plaintiff’s Response 

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

for Plaintiff’s accident because the uneven concrete was an open and obvious 

danger. (ECF No. 18 at Pg ID 86.) Defendant contends that there are no special 

aspects of the condition that would remove this case from the open and obvious 

doctrine. (Id.) Defendant also argues that Plaintiff cannot make a claim under the 

Americans with Disabilities Act (“ADA”), 28 CFR § 36.403, because the drafters 

did not intend for the statute to focus on safety standards for walkways and the 

statute does not provide for a cause of action for damages in tort or under any other 

theory. (Id.) 

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 Plaintiff contends in response that there is a genuine issue of material fact 

with respect to whether the uneven pavement was an open and obvious danger. 

(ECF No. 20 at Pg ID 207.) Plaintiff also argues that he is able to satisfy the 

elements necessary to establish a claim under the ADA. (Id. at Pg ID 200.) 

IV. Applicable Law and Analysis2

A. Premises Liability 

 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 

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 Plaintiff was an invitee on Defendant’s 

premises when the accident occurred. (See ECF Nos. 18 at Pg ID 94; 20 at Pg ID 

202.) 

 

2

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

which is before the Court on diversity jurisdiction. (ECF Nos. 18 at Pg ID 88; 20 

at Pg ID 194.); see also Cudney v. Sears, Roebuck & Co., 21 F. App’x 424, 427-28 

(6th Cir. 2001) (citations omitted).

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“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. 

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 

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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) (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.” 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. 

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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 

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 

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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.”3

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

The Court first turns to the question of whether the uneven crack was open 

and obvious such that Defendant is relieved of any duty to Plaintiff, or whether 

some special aspects of the condition nevertheless justify imposing liability on 

Defendant. The Court finds that a jury could reasonably conclude that the uneven 

crack was not open and obvious, and would prevent an average person of ordinary 

intelligence from discovering its danger. 

Defendant directs the Court to Plaintiff’s deposition testimony, where 

Plaintiff states that he does not recall anything obstructing his view. (ECF No. 21 

at Pg ID 303; see also ECF No. 18-3, Pg ID 127.) Defendant argues Plaintiff’s 

testimony demonstrates that the uneven crack was open and obvious. (ECF No. 21 

at Pg ID 303.) However, it was dark when Plaintiff exited his vehicle. (ECF No. 

20 at Pg ID 189.) Plaintiff was only able to take one or two steps before he tripped 

over the crack. (Id. at Pg ID 189.) He did not have an opportunity to casually 

inspect the area because the crack was next to the handicapped spot. Plaintiff was 

looking forward, not down, as he walked towards the Speedway. (Id. at Pg ID 

 

3 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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207.) When evaluating these facts, a reasonable juror could find that an average 

person of ordinary intelligence may not have noticed the uneven crack. 

B. Americans with Disabilities Act

 Plaintiff also alleges that Defendant was negligent per se by failing to 

maintain their parking lot pursuant to 28 C.F.R. § 36.403 of the ADA. (ECF No. 

20 at Pg ID 197.) 

Title III of the ADA prohibits a place of public accommodation from 

discriminating against an individual on the basis of disability. The statute provides 

that: 

No individual shall be discriminated against on the basis of disability 

in the full and equal enjoyment of the goods, services, facilities, 

privileges, advantages, or accommodations of any place of public 

accommodation by any person who owns, leases, (or leases to) or 

operates a place of public accommodation. 

42 U.S.C. § 12188(a). Plaintiff directs the Court’s attention to 28 C.F.R. § 

36.403 of the ADA, which governs alterations to path of travel. 28 C.F.R. § 

36.403(a) provides that: 

An alteration that affects or could affect the usability of or access to 

an area of a facility that contains a primary function shall be made so 

as to ensure that, to the maximum extent feasible, the path of travel to 

the altered area and the restrooms, telephones, and drinking fountains 

serving the altered area, are readily accessible to and usable by 

individuals with disabilities[.] 

28 C.F.R. § 36.403(a). 

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Plaintiff argues that Defendant was required to “construct a path that is 

readily accessible to and useable by individuals with disabilities.” (ECF No. 20 at 

Pg ID 197.) However, Plaintiff’s reliance on 28 C.F.R. § 36.403 is misguided. As 

Defendant correctly points out, this section governs alterations made to a public 

accommodation. (ECF No. 21 at Pg ID 298.) There is no evidence that any 

alteration has been made to Defendant’s premises. Plaintiff notes that Defendant’s 

store was constructed in 2006, after the enactment of the ADA. (ECF No. 20 at Pg 

ID 197.) Plaintiff also directs the court to the deposition testimony of Suzette 

Barrett, an employee who testified that the “defect has been present since the store 

opened in 2006.” (Id. at Pg ID 191.) There is no genuine issue of fact on whether 

Defendant made alterations and therefore, Plaintiff fails as a matter of law to 

establish a claim pursuant to 28 C.F.R. § 36.403. 

Other than 28 C.F.R. § 36.403, Plaintiff does not point to any specific 

standard of the ADA that is violated by the uneven crack. Plaintiff makes vague 

references to the purpose of the ADA. (See, e.g., ECF No. 20 at Pg ID 196; 200). 

The purpose of Title III of the ADA is set forth in 42 U.S.C. § 12188(a): to prevent 

discrimination against individuals with disabilities. The purpose of the ADA “is 

not to establish safety standards for walkways, and Title III of the statute, 

governing public accommodations and commercial facilities, provides no cause of 

action for damages in tort or under any other theory.” Vansteenkiste v. Lakeside 

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Mall, LLC, No. 12-CV-15055, 2014 WL 2744172, at *7 (E.D. Mich. June 17, 

2014). Therefore, Plaintiff has failed to establish a breach of duty by Defendant 

pursuant to the ADA. 

V. Conclusion 

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 uneven crack. A jury could reasonably infer that a 

casual inspection of the premises would not have revealed the uneven crack. As 

such, the Court concludes that Defendant is not entitled to summary judgment with 

respect to Plaintiff’s premises liability claim. 

 The Court also concludes that Plaintiff has failed to establish a breach of 

duty by Defendant pursuant to 28 C.F.R. § 36.403. 

Accordingly, 

IT IS ORDERED that Defendant’s motion for summary judgment [ECF 

No. 18] is GRANTED IN PART as to Plaintiff’s claim under 28 C.F.R. § 36.403; 

IT IS FURTHER ORDERED that Defendant’s motion for summary 

judgment [ECF No. 18] is DENIED IN PART with respect to Plaintiff’s premises 

liability claim. 

 s/ Linda V. Parker 

 LINDA V. PARKER 

 U.S. DISTRICT JUDGE 

Dated: December 21, 2016 

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

record and/or pro se parties on this date, December 21, 2016, by electronic and/or 

U.S. First Class mail. 

 s/ Richard Loury 

 Case Manager 

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