1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL CAMPBELL,

Plaintiff,

Case No. 15-12404

v.

Honorable Linda V. Parker

Magistrate Elizabeth Stafford

SPEEDWAY, LLC,

Defendant.

 

GEOFFREY N. FIEGER (P30441)

CHRISTIAN P. COLLIS (P54790)

Fieger, Fieger, Kenney & Harrington, P.C.

Attorneys for Plaintiff

19390 West Ten Mile Road

Southfield, Michigan 48075

Telephone: (248) 355-5555

Fax: (248)355-5148 

JOHN J. GILLOOLY (P41948)

Garan Lucow Miller, P.C.

Attorney for Defendant

1155 Brewery Park Blvd, Ste 200

Detroit, Michigan 48207

Telephone: (313) 446-5501

Fax: (313) 259-0450

 

PLAINTIFF’S RESPONSE TO DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT

NOW COMES Plaintiff Michael Campbell, by and through his 

attorneys, Fieger, Fieger, Kenney & Harrington, P.C., and for his Response 

to Defendant’s Motion for Summary Judgment states as follows:

1. Admitted that this cause of action arises out of the serious 

personal injuries that Michael Campbell, a disabled individual, suffered 

when he tripped on an uneven area of abutting concrete slabs in the 

Case 4:15-cv-12404-LVP-EAS ECF No. 20, PageID.179 Filed 04/20/16 Page 1 of 34
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handicap parking area of Defendant’s parking lot. Mr. Campbell struck 

the ground with such great force that he sustained a broken neck and 

bleeding in both his brain and neck.

2. Neither admitted nor denied as the allegations contained in 

Plaintiff’s Complaint, attached as Exhibit 1, speak for themselves. 

3. Neither admitted nor denied as the allegations contained in 

Plaintiff’s Complaint, attached as Exhibit 1, speak for themselves.

4. Denied as phrased; Mr. Campbell’s deposition is attached as 

Exhibit 2. Mr. Campbell arrived at Defendant’s gas station at 

approximately 7:30 p.m. on March 18, 2014. It was dark outside. Mr. 

Campbell testified that upon exiting the vehicle, he was only able to take 

one or two steps before tripping on the uneven crack created by the 

abutting slabs of concrete. 

5. Admitted that photographs were taken of the area. 

Additionally, attached as Exhibit 3 are additional photographs of the area.

6. Denied. Plaintiff’s Complaint properly asserts allegations of 

both common law premise liability as well as violations of the Americans 

with Disabilities Act. Defendant’s statutory obligations under the 

Americans with Disabilities Act establish a duty that precludes application 

Case 4:15-cv-12404-LVP-EAS ECF No. 20, PageID.180 Filed 04/20/16 Page 2 of 34
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of Michigan’s open and obvious danger doctrine. Even if the open and 

obvious danger doctrine applied, when the evidence is viewed in the light 

most favorable to Plaintiff, the uneven crack created by the two abutting 

pieces of concrete in the handicap parking area was not observable to 

average person of ordinary intelligence upon casual inspection. Defendant 

also owed a duty to Mr. Campbell because the condition was effectively 

unavoidable to handicap patrons such as Mr. Campbell. When the totality 

of the factual evidence is considered in the light most favorable to Plaintiff, 

Defendant’s Motion for Summary Judgment must be denied.

WHEREFORE, Plaintiff Michael Campbell respectfully requests that 

this Honorable Court DENY Defendant’s Motion for Summary Judgment 

in its entirety. 

Respectfully submitted,

/s/ Christian P. Collis 

GEOFFREY N. FIEGER (P30441)

HRISTIAN P. COLLIS (P54790)

Fieger, Fieger, Kenney & Harrington, P.C.

Attorneys for Plaintiff

Dated: April 20, 2016

Case 4:15-cv-12404-LVP-EAS ECF No. 20, PageID.181 Filed 04/20/16 Page 3 of 34
UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MICHAEL CAMPBELL,

Plaintiff,

Case No. 15-12404

v.

Honorable Linda V. Parker

Magistrate Elizabeth Stafford

SPEEDWAY, LLC,

Defendant.

 

GEOFFREY N. FIEGER (P30441)

CHRISTIAN P. COLLIS (P54790)

Fieger, Fieger, Kenney & Harrington, P.C.

Attorneys for Plaintiff

19390 West Ten Mile Road

Southfield, Michigan 48075

Telephone: (248) 355-5555

Fax: (248)355-5148 

JOHN J. GILLOOLY (P41948)

Garan Lucow Miller, P.C.

Attorney for Defendant

1155 Brewery Park Blvd, Ste 200

Detroit, Michigan 48207

Telephone: (313) 446-5501

Fax: (313) 259-0450

 

BRIEF IN SUPPORT OF 

PLAINTIFF’S RESPONSE TO DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT

**** ORAL ARGUMENT REQUESTED *****

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TABLE OF CONTENTS

TABLE OF CONTENTS ......................................................................................... i

INDEX OF AUTHORITIES................................................................................... ii

STATEMENT OF QUESTIONS PRESENTED..................................................iv

CONTROLLING AND MOST ............................................................................. v

APPROPARIATE AUTHORITY.......................................................................... v

STATEMENT OF FACTS.......................................................................................1

STANDARD OF REVIEW .....................................................................................7

LEGAL ARGUMENT .............................................................................................9

I. Plaintiff’s Complaint asserts allegations of both common law premise 

liability as well as violations of the Americans with Disabilities Act. 

Defendant’s statutory obligations under the Americans with 

Disabilities Act establish a duty that precludes application of 

Michigan’s open and obvious danger doctrine........................................9

II. Late in the evening on March 18, 2014, Michael Campbell tripped and 

fell almost immediately after exiting his wife’s vehicle due to an 

uneven crack that was created by two abutting pieces of concrete in 

the handicap parking area of Defendant’s gas station. That uneven 

crack was not observable to average person of ordinary intelligence 

upon casual inspection...............................................................................15

III. Should the Court determine that the uneven crack caused by the 

abutting slabs of concrete was open and obvious, Defendant still 

owed a duty to Mr. Campbell. When special aspects of a condition 

make even an open and obvious risk unreasonably dangerous, the

premises possessor has a duty to undertake reasonable precautions to 

protect invitees from that risk...................................................................21

IV.There is no merit to Defendant’s unsupported allegation that the uneven 

crack created by the abutting slabs of concrete that caused Mr. 

Campbell’s fall was not a dangerous condition.....................................23

CONCLUSION AND RELIEF REQUESTED....................................................24

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INDEX OF AUTHORITIES

CASES

60 Ivy Street Corp. v. Alexander, 822 F.2d 1432 (6th Cir. 1987)...........................8

Abke v. Vanderbverg, 239 Mich. App. 359, 608 N.W.2d 73 (2000)....................17

Allstate Ins. Co. v Thrifty Rent-A-Car Sys., Inc.,

249 F.3d 450 (6th Cir. 2001)..........................................................................7

Bertrand v. Alan Ford, Inc., 449 Mich. 606, 537 N.W.2d 185 (1995) ........passim

Corey v. Davenport College of Business (On Remand), 

251 Mich. App. 1, 649 N.W.2d 392 (2002)................................................16

Douglas v. Edgewater Park Co., 369 Mich. 320, 119 N.W.2d 567 (1963)...........12

Glancy v City of Roseville, 457 Mich. 580, 577 N.W.2d 897 (1998)....................23

Henson v. National Aeronautics and Space Administration, 

14 F.3d 1143 (6th Cir. 1994)..........................................................................8

Hughes v. PMG Building, 227 Mich App 1, 574 N.W.2d 691 (1997)................17

James v. Alberts, 464 Mich. 12, 626 N.W.2d 88 (2000)........................................15

Johnson v. Bobbie’s Party Store, 189 Mich. App. 652,

473 N.W.2d 796 (1991)........................................................................ 11, 12

Jones v. Enertel, Inc., 467 Mich. 266, 650 N.W.2d 334 (2002) ..............................9

Kendall v. Hoover Co., 751 F.2d 171 (6th Cir. 1984)..............................................8

Kennedy v. Great Atlantic & Pacific Tea Co., 274 Mich. App. 710,

737 N.W.2d 179 (2007)...........................................................................iv, 9

Lugo v. Ameritech Corp, 464 Mich. 512, 629 N.W.2d 384 (2001).......... 15, 17, 21

Martin v. Ohio Turnpike Commission, 968 F.2d 606 (6th Cir. 1992)....................7

Novotney v. Burger King Corp. (On Remand), 198 Mich. App. 470, 499 N.W.2d 

379 (1993)......................................................................................................16

O’Donnell v. Garasic, 259 Mich. App. 569, 676 N.W.2d 213 (2003).................16

Price v. Kroger Co. of Michigan, 284 Mich. App. 496, 

773 N.W.2d 739 (2009)..........................................................................iv, 15

Case 4:15-cv-12404-LVP-EAS ECF No. 20, PageID.184 Filed 04/20/16 Page 6 of 34
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Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 

485 N.W.2d 676 (1992)................................................................................16

Siorakes v. Target Corp. No. 295034, 2011 WL 1564616 

(Mich. Ct. App. April 26, 2011).................................................... 18, 19, 23

Smith v. Wal-Mart Stores, Inc., 167 F.3d 286 (6th Cir. 1999) ...........iv, 10, 11, 13

Stitt v. Holland Abundant Life Fellowship, 462 Mich. 591, 

614 N.W.2d 88 (2000)..................................................................................15

v. Anderson Sales & Service, Inc., 426 Mich. 78, 393 N.W.2d 356 (1986)..........12

Vansteenkiste v Lakeside Mall, LLC, No. 12-15055, 2014 WL 2744172 (E.D. 

Mich. 2014)...................................................................................................13

Watts v. Michigan Multi-King, Inc., 291 Mich. App. 98, 

804 N.W.2d 569 (2010)................................................................................16

Welch v. Total Petroleum, Inc., No. 208505, 1999 WL 33445049 

(Mich. Ct. App. May 14, 1999) ................................................iv, 17, 18, 23

Woodbury v. Bruckner (On Remand), 248 Mich. App. 684, 

650 N.W.2d 343 (2001)................................................................................22

Zalut v Andersen & Associates, Inc., 186 Mich. App. 229, 

463 N.W.2d 236 (1990)................................................................................12

STATUTES

28 CFR 36.403(a) ......................................................................................................9

42 USC § 12181.........................................................................................................9

MCL 554.139...........................................................................................................11

OTHER AUTHORITIES

Random House Webster’s College Dictionary (2001).............................................16

RULES

Fed. R. Civ. P. 56(c) .................................................................................................7

Case 4:15-cv-12404-LVP-EAS ECF No. 20, PageID.185 Filed 04/20/16 Page 7 of 34
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STATEMENT OF QUESTIONS PRESENTED

I. Plaintiff’s Complaint asserts allegations of both common law premise 

liability and violations of the Americans with Disabilities Act. Do 

Defendant’s statutory obligations under the Americans with 

Disabilities Act create an independent duty that precludes 

application of Michigan’s open and obvious danger doctrine?

Plaintiff says: Yes

Defendant says: No 

II. When the evidence is viewed in the light most favorable to Plaintiff, 

has Plaintiff established that the uneven crack in the handicap 

parking area of Defendant’s gas station was not observable to an 

average person of ordinary intelligence upon casual inspection?

Plaintiff says: Yes

Defendant says: No 

III. If the uneven crack was observable to an average person of ordinary 

intelligence upon casual inspection, did Defendant still owe a duty to 

Mr. Campbell given that the condition was effectively unavoidable?

Plaintiff says: Yes

Defendant says: No 

IV. Was the uneven crack created by the abutting slabs of concrete that 

caused Mr. Campbell’s fall a dangerous condition?

Plaintiff says: Yes

Defendant says: No 

Case 4:15-cv-12404-LVP-EAS ECF No. 20, PageID.186 Filed 04/20/16 Page 8 of 34
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CONTROLLING AND MOST

APPROPARIATE AUTHORITY

 Kennedy v. Great Atlantic & Pacific Tea Co., 274 Mich. App. 710, 737 

N.W.2d 179 (2007). This case recognizes that, in Michigan, the open 

and obvious danger doctrine does not apply if a negligence action is 

premised on the violation of a statute rather than on common-law 

principles of premise liability. 

 Smith v. Wal-Mart Stores, Inc., 167 F.3d 286 (6th Cir. 1999). This case 

considered the applicability of the Americans with Disabilities Act to 

a plaintiff’s negligence claim against Wal-Mart for its failure to equip 

bathrooms with grab bars. In utilizing the ADA, the Court 

considered a Georgia statute that parallels the holding in Kennedy, 

supra. 

 Price v. Kroger Co. of Michigan, 284 Mich. App. 496, 773 N.W.2d 739 

(2009). This case discusses Michigan’s open and obvious danger 

doctrine and the analysis that should be used when considering the 

doctrine.

 Bertrand v. Alan Ford, Inc., 449 Mich. 606, 537 N.W.2d 185 (1995). This 

case discussed both Michigan’s open and obvious danger doctrine as 

well as the concept of “special aspects” as it applies to Michigan 

premise liability law. 

 Welch v. Total Petroleum, Inc., No. 208505, 1999 WL 33445049 (Mich. 

Ct. App. May 14, 1999). This case applied Michigan’s open and 

obvious danger doctrine to facts almost identical to Mr. Campbell’s 

fall and determined that questions of fact existed such that the 

defendant’s motion for summary disposition must be denied. 

Case 4:15-cv-12404-LVP-EAS ECF No. 20, PageID.187 Filed 04/20/16 Page 9 of 34
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STATEMENT OF FACTS

On March 18, 2014, Plaintiff Michael Campbell was seriously injured 

after tripping and falling on an uneven area of abutting concrete slabs in 

the handicap parking area of Defendant’s parking lot. The undisputed 

evidence shows that Mr. Campbell exited his vehicle and took one or two

steps before his foot struck the uneven area and he flung forward. Mr. 

Campbell struck the ground with such great force that he sustained a 

broken neck and bleeding in both his brain and neck. 

Plaintiff Michael Campbell was 68 years of age at the time of the fall. 

After 31 years working for General Motors, Mr. Campbell formally retired 

after being certified disabled by the Social Security Administration in 2002.

1

Mr. Campbell was disabled due to deformities of his right foot and leg. Id. 

In the fourteen years since being disabled, Mr. Campbell has experienced 

additional health issues. Id. at 17-19. In 2014, his medical diagnoses 

included congestive heart failure, sleep apnea, coronary artery disease, 

diabetes, degenerative disk disease, and chronic renal failure that required

dialysis three times a week. Id. at 17-19, 22. In fact, at the time of his fall at 

Defendant’s gas station, Mr. Campbell’s right arm was immobilized in a 

 

1

 Exhibit 2, Deposition of Michael Campbell, p. 11.

Case 4:15-cv-12404-LVP-EAS ECF No. 20, PageID.188 Filed 04/20/16 Page 10 of 34
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sling due to an earlier fracture of his right arm. Id. at 20-21. 

Mr. Campbell Falls in the Handicap Parking Area

On March 18, 2014, Mr. Campbell and his wife, Nancy, stopped at the 

Speedway gas station on Irish Road in Davison, Michigan, to purchase a 

cup of coffee. Id. at 31. It was approximately 7:30 p.m. Id. “It was night.” 

Id. “It was dark.” Id. They stopped at Defendant’s gas station en route to 

pick up their son. Id. at 32. Mrs. Campbell, who was driving, pulled into 

the handicap parking space next to the store’s entrance.2 Id. at 33.

Once the vehicle was parked, Mr. Campbell, who was in the 

passenger seat, exited the vehicle and began walking toward the door. Id. 

at 33. Unfortunately, Mr. Campbell was only able to take “one or two” 

steps before he felt his foot trip against an uneven area where two concrete 

slabs abut. Id. at 33-34. The force of the fall caused Mr. Campbell’s body to 

fling forward, striking the ground. Id. at 35. Mr. Campbell described the 

area of his fall as follows: 

Q. Okay. And what did you trip on?

A. I tripped on a ledge.

 

2

 Nancy Campbell is also disabled. She has been on disability since an 

automobile accident in 2006. Exhibit 2, p. 8. 

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Q. Okay. And what type of ledge was it?

A. It was an uneven - between where the one pavement 

meets the other pavement. 

* * *

Q. Did you trip on two uneven portions of slabs of concrete 

that were adjacent to one another?

A. . . . It was two uneven portions, but I think one was 

concrete and one was blacktop.

Id. at 34. That area is pictured below: 

Case 4:15-cv-12404-LVP-EAS ECF No. 20, PageID.190 Filed 04/20/16 Page 12 of 34
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(Exhibit 3, Photographs)

Later that evening, Mr. Campbell was taken to the hospital and 

diagnosed with a fracture of his neck and bleeds in his brain and neck (aka 

hematomas). Id. at 24, 29-30. 

Defendant’s Employees Knew of the Dangerous Condition for Years

Defendant’s employees admit that the uneven area that caused Mr. 

Campbell to fall has existed for years. (Exhibit 4, Deposition of Suzette 

Barrett, p. 16) Suzette Barrett, who is a General Manager of Speedway, 

admitted that the defect has been present since the store opened in 2006. 

Id. Ms. Barrett testified as follows: 

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Q. And what I'd like to know, since you've been 

there since 2006, what appears to be a crack or 

a difference in a seam between two cement 

pieces, how long has that area been like that 

since the store opened in 2006?

A. Since the store opened.

Id. at 16. 

Ashley Fenlon was an employee working at the store on the night of 

Mr. Campbell’s fall. (Exhibit 5, Deposition of Ashley Fenlon, p. 17). Ms.

Fenlon admitted that the uneven crack runs through the entire parking lot, 

including the handicap parking area where Mrs. Campbell parked. Ms. 

Fenlon testified as follows: 

Q. This lip in the concrete, does that run -- how 

long does this lip in the concrete run, like, 

lengthwise?

A. I want to say, almost through the whole 

parking lot.

Q. And it runs through the handicapped parking 

areas?

A. Yes.

Q. And do you know how long that lip or that 

crack in the concrete has been there?

A. I don't.

Case 4:15-cv-12404-LVP-EAS ECF No. 20, PageID.192 Filed 04/20/16 Page 14 of 34
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Q. Has it been there at least since the length of 

time that you've been employed there?

A. Yes.

Id. at 20-21, 29. Ms. Fenlon conceded that in order to enter the store, a 

customer has to encounter the uneven crack: 

Q. Is it accurate to say it actually goes through the

area where there's no parking in the front 

entrance of the store?

A. Yes.

Q. Any customer that would be going to the store 

would encounter that crack or lip; correct?

A. Correct.

Id. at 29. 

Plaintiff’s Complaint

On June 15, 2015, Plaintiff filed his Complaint against Defendant in 

the Genesee County Circuit Court. Defendant, a Delaware corporation, 

subsequently removed this matter to this Court. Dkt No. 3. Plaintiff’s 

Complaint, which is attached as Exhibit 1, asserts the following allegations 

of negligence against Defendant regarding the cracked, uneven portion of 

concrete in the handicap parking area:

Case 4:15-cv-12404-LVP-EAS ECF No. 20, PageID.193 Filed 04/20/16 Page 15 of 34
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a. Failure to exercise reasonable care in 

maintaining a dangerous condition;

b. Failure to properly maintain the subject 

pavement to keep it free and clear of known 

hazards;

c. Failure to keep the parking spots in a proper 

state of repair and/or maintenance, free from 

hazardous conditions;

d. Violation of the Americans with Disabilities 

Act; 28 C.F.R. 36.403 et.al.; failing to maintain 

an access to the entrance of the building and a

handicap parking space that is level with 

surface slopes; and

e. Any and all other negligence that becomes 

known through the course of litigation.

Exhibit 1, p. 3.

STANDARD OF REVIEW

Michigan law governs Plaintiff’s claims in this diversity action. 

Allstate Ins. Co. v Thrifty Rent-A-Car Sys., Inc., 249 F.3d 450, 454 (6th Cir. 

2001).

Defendant’s Motion for Summary Judgment is brought pursuant to 

Fed. R. Civ. P. 56(c). In accordance with this rule, summary judgment is 

appropriate where the moving party demonstrates that there is no genuine 

issue of material fact and the moving party is entitled to judgment as a 

matter of law. Martin v. Ohio Turnpike Commission, 968 F.2d 606, 608 (6th 

Case 4:15-cv-12404-LVP-EAS ECF No. 20, PageID.194 Filed 04/20/16 Page 16 of 34
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Cir. 1992). In considering such a motion, the Court must view the facts and 

draw all reasonable inferences therefrom in the light most favorable to the 

non-moving party. 60 Ivy Street Corp. v. Alexander, 822 F.2d 1432, 1435 (6th 

Cir. 1987). The Court is neither permitted nor required to judge the 

evidence or make findings of fact. Id.

“A fact is ‘material’ for purposes of summary judgment where proof 

of that fact would have the effect of establishing or refuting an essential 

element of the cause of action or defense advanced by the parties.” Kendall 

v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984). In other words, the 

disputed fact must be one which might affect the outcome of the suit under 

the substantive law controlling the issue. Henson v. National Aeronautics and 

Space Administration, 14 F.3d 1143, 1148 (6th Cir. 1994). A fact is “material,” 

if the evidence is such that a reasonable jury could return a verdict for the 

non-moving party. Id.

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LEGAL ARGUMENT

I. Plaintiff’s Complaint asserts allegations of both common law 

premise liability claims as well as violations of the Americans 

with Disabilities Act. Defendant’s statutory obligations 

under the Americans with Disabilities Act establishes a duty 

that precludes application of Michigan’s open and obvious 

danger doctrine.

“If a negligence action is premised on the violation of a statute rather 

than on common-law principles of premise liability, then the open and 

obvious danger doctrine will not apply.” Kennedy v. Great Atlantic & Pacific 

Tea Co., 274 Mich. App. 710, 720-721, 737 N.W.2d 179 (2007).

3

 Here, 

Plaintiff’s Complaint asserts both traditional premise liability claims as 

well as violations of the Americans with Disabilities Act (hereafter 

“ADA”). As the Court is aware, the ADA was implemented as a means to 

provide safe access and use of public facilities by disabled person. In 

accordance with Title III of the ADA, found at 42 USC § 12181, et seq, places 

of public accommodation, including commercial facilities, are to be 

designed and constructed in compliance with the accessibility 

requirements of the ADA.

As a place of public accommodation, Defendant Speedway was 

required to maintain its gas station in manner that could safely 

 

3

 See also, Jones v. Enertel, Inc., 467 Mich. 266, 270, 650 N.W.2d 334 (2002).

Case 4:15-cv-12404-LVP-EAS ECF No. 20, PageID.196 Filed 04/20/16 Page 18 of 34
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accommodate disabled individuals such as Mr. Campbell. In accordance 

with 28 CFR 36.403(a), a private entity must construct a path that is readily 

accessible to and useable by individuals with disabilities.4 Subsection (e) 

goes on to explain that a “path of travel” includes a “continuous, 

unobstructed way of pedestrian passage . . . .” It is further noted that “an 

accessible path of travel may consist of walks and sidewalks, curb ramps, 

and other interior or exterior pedestrian ramps; clear floor paths through 

lobbies, corridors, rooms and other improved areas; parking access aisles; 

elevators and lifts; or a combination of these elements.”

The Sixth Circuit Court of Appeals considered the applicability of the 

ADA to a plaintiff’s negligence claim against Wal-Mart for its failure to 

equip bathrooms with grab bars in Smith v. Wal-Mart Stores, Inc., 167 F.3d 

286 (6th Cir. 1999). That case was considered in the context of a Georgia 

statute that parallels the holding in Kennedy, supra. The statute, Ga. Code 

Ann. § 51-1-6 states:

When the law requires a person to perform an act 

for the benefit of another or to refrain from doing an 

act which may injure another, although no cause of

action is given in express terms, the injured party 

 

4

 Defendant’s store was constructed in 2006, which was after enactment of 

the ADA. Exhibit 4, p. 16.

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may recover for the breach of such legal duty if he 

suffers damage thereby.

Smith, 167 F.3d at 293. 

The plaintiff, who was also disabled, argued that she had a cause of 

action for negligence per se based upon Wal-Mart’s violation of an ADA 

provisions requiring handrails in bathrooms. The district court granted the 

defendant’s motion for summary judgment based on the fact that the ADA 

does not provide for a private cause of action. Id. at 293. The Sixth Circuit 

reversed, stating in part:

ADA contains no provision barring application of it 

as a basis for a state cause of action. Nor is there 

any mention in § 51-1-6 that an injured person must 

have a private cause of action under the statute in 

order for it to be used to establish a duty of care.

* * *

Taking all this into account, we believe that if the 

Georgia Supreme Court were faced with the facts of 

this case, it would conclude (1) that whether WalMart was in violation of the ADA by not installing 

grab bars in the toilet stall used by plaintiff, and 

thus was negligent per se, is a question for the jury, 

and (2) that Mrs. Smith has a private right of action 

against Wal-Mart under Georgia law for its failure 

to implement any ADA-mandated requirements 

designed for the protection of persons such as 

herself.

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Smith, 167 F.3d at 295.

In Michigan “it is well established that . . . violation of a statute 

creates a rebuttable presumption of negligence . . . .” Johnson v. Bobbie’s 

Party Store, 189 Mich. App. 652, 661, 473 N.W.2d 796 (1991).

5

 When a 

defendant fails to comply with the law, i.e. not follow the ADA or fail to

maintain a rental property consistent with MCL 554.139, an injured party 

may recover for the breach of that statutory obligation. The open and 

obvious danger doctrine, discussed below, does not apply. Similarly, 

negligence can be inferred based on the violation of a licensing statute, 

Klanseck v. Anderson Sales & Service, Inc., 426 Mich. 78, 86, 393 N.W.2d 356 

(1986). 

Michigan law also recognizes that where a plaintiff alleges a violation 

of an administrative rule, ordinance, or regulation, such violations are 

admissible as evidence of negligence. Johnson, 189 Mich. App. at 661 and 

Douglas v. Edgewater Park Co., 369 Mich. 320, 328, 119 N.W.2d 567 (1963). 

For example, violations of safety statutes, such as MIOSHA, are admissible 

as evidence of negligence. Zalut v Andersen & Associates, Inc., 186 Mich. 

 

5 See also Kennedy, supra; O’Donnell v. Garasic, 259 Mich. App. 569, 676 

N.W.2d 213 (2003); and Jones, 467 Mich. at 270.

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App. 229, 235-236, 463 N.W.2d 236 (1990). 

Here, Plaintiff has satisfied all of the requirements necessary to 

proceed on a theory of negligence based on Defendant’s failure to comply 

with the requirements of the ADA. Mr. Campbell is a disabled American 

who is entitled to the protections of the ADA. The Act was clearly 

intended to insure that disabled individuals, like Mr. Campbell, had equal 

access to commercial establishments, such as Defendant’s gas station. 

Defendant’s gas station was built after enactment of the ADA. The 

provisions cited above specifically required Defendant to provide a path of 

travel that includes a continuous, unobstructed way of pedestrian passage. 

Here, Defendant failed to meet its ADA mandated obligation to Mr. 

Campbell. At a minimum, the issue must be submitted to the trier of fact. 

Defendant’s Brief relies extensively on Vansteenkiste v. Lakeside Mall, 

LLC, No. 12-15055, 2014 WL 2744172 (E.D. Mich. 2014) in support of

dismissal of Plaintiff’s negligence claims that rely on the ADA. However, 

Vansteenkiste should be carefully considered. The ADA was not even pled 

as part of the plaintiff’s complaint at the time that the court analyzed the 

issue. In what seems like an afterthought by that plaintiff, the plaintiff 

sought to amend her complaint to add such a claim. Smith, supra was not

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even mentioned. Additionally, there are factual distinctions between the 

dangerous condition encountered by Mr. Campbell and the condition that 

caused Ms. Vansteenkiste’s injuries. For example, the court stated: “the 

instant case does not involve a curb-sidewalk juncture that was allegedly 

noncompliant with this provision.” Id. at *9. Unlike Vansteenkistke, Mr. 

Campbell’s situation was near the entrance where the concrete met the 

asphalt. Exhibit 2, p. 34. This is an obviously appreciable difference from 

Vansteenkiste. 

It is troubling how Defendant simply turned a blind eye to the 

disrepair of its entryway and handicap parking area. That uneven crack 

has existed for many years. Exhibit 3 shows how the crack cuts through 

the handicap parking area near where most disabled Americans would be 

exiting their parked vehicle and unable to appreciate the hazard that lays 

just steps from their feet. To a disabled American who relies on specialized 

footwear, a walker, a cane, or other assistive devices, the uneven crack is a 

significant danger and an impediment to unobstructed mobility. Plaintiff 

has properly asserted claims based on Defendant’s violations of the ADA.

Those claims must be submitted to the finder of fact. Defendant’s motion 

for summary judgment must be denied.

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II. Late in the evening on March 18, 2014, Michael Campbell 

tripped and fell almost immediately after exiting his wife’s 

vehicle due to an uneven crack that was created by two 

abutting pieces of concrete in the handicap parking area of 

Defendant’s gas station. That uneven crack was not 

observable to average person of ordinary intelligence upon 

casual inspection.

In Michigan, the property owner has a duty to exercise reasonable 

care to protect invitees from an unreasonable risk of harm caused by a 

dangerous condition on the land.6 Where the plaintiff is an invitee, as Mr. 

Campbell was, “the property owner in control of the premises . . . [has] a 

duty to inspect the premises for hazards that might cause injury.”7 “The 

landowner’s duty encompasses not only warning an invitee8 of any known 

dangers, ‘but the additional obligation to also make the premises safe, 

which requires the landowner to inspect the premises and, depending

upon the circumstances, make any necessary repairs or warn of any 

discovered hazards.’” Price, 284 Mich. App. at 500, citing James v. Alberts, 

 

6

 Lugo v. Ameritech Corp, 464 Mich. 512, 516, 629 N.W.2d 384 (2001); 

Bertrand v. Alan Ford, Inc., 449 Mich. 606, 609, 537 N.W.2d 185 (1995).

7

 Price v. Kroger Co. of Michigan, 284 Mich. App. 496, 500, 773 N.W.2d 739 

(2009). 

8

 An invitee is a person who enters the land of another “upon an invitation 

which carries with it an implied representation, assurance, or 

understanding that reasonable care has been used to prepare the premises, 

and make [it] safe for [the invitee’s] reception. Stitt v. Holland Abundant Life 

Fellowship, 462 Mich. 591, 597-598, 614 N.W.2d 88 (2000).

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16

464 Mich. 12, 20, 626 N.W.2d 88 (2000).

The duty owed by a property owner, however, does not extend to 

dangers that fall within Michigan’s open and obvious danger doctrine. If 

the invitee knows of a danger or, because of the obviousness of the danger 

the invitee can reasonably be expected to discover it, the premises 

possessor does not owe a duty to warn or protect the invitee unless the 

premises possessor should anticipate the harm despite the invitee’s 

knowledge of it.9 “The test for an open and obvious danger focuses on the 

inquiry: Would an average person of ordinary intelligence discover the 

danger and the risk it presented on casual inspection?” Price, 284 Mich. 

App. at 501.

The open and obvious danger doctrine requires that the hazard be 

“obvious” upon “casual inspection.”10 The word “casual” means 

“happening by chance,” without definite or serious intention,” “off hand.” 

Random House Webster’s College Dictionary (2001). Thus, a casual inspection 

 

9 Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 96, 485 N.W.2d 676 

(1992); Novotney v. Burger King Corp. (On Remand), 198 Mich. App. 470, 475, 

499 N.W.2d 379 (1993).

10 Watts v. Michigan Multi-King, Inc., 291 Mich. App. 98, 105, 804 N.W.2d 569 

(2010) citing O’Donnell v. Garasic, 259 Mich. App. 569, 676 N.W.2d 213 

(2003).

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is one that occurs in an offhand manner, without definite and serious 

intention. “The inquiry is whether a reasonable person in the plaintiff’s 

position would have foreseen the danger, not whether the particular 

plaintiff knew or should have known that the condition was hazardous.” 

Corey v. Davenport College of Business (On Remand), 251 Mich. App. 1, 5, 649 

N.W.2d 392 (2002). It is an objective test. Id.

It is universally established that a hazardous condition is not open 

and obvious as a matter of law if the nature of the risk is inadequately 

illuminated or otherwise hidden, concealed, or obscured. See Lugo, 464 

Mich. at 521 (parking lot pothole is open and obvious if nothing disguised 

its appearance); Bertrand, 449 Mich. at 622 (vending machine obscured 

danger of steps); Abke v. Vanderbverg, 239 Mich. App. 359, 362-363, 608 

N.W.2d 73 (2000) (testimony that loading dock area was dark precluded a 

directed verdict on the issue that the hazard was open and obvious); 

Hughes v. PMG Building, 227 Mich App 1, 11, 574 N.W.2d 691 (1997)

(placement and siding on roof overhang obscured hazard of collapse, 

leaving fact question on issue of open and obvious).

The issues presented in this case are analogous to the Michigan Court 

of Appeals opinion in Welch v. Total Petroleum, Inc., No. 208505, 1999 WL 

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18

33445049 (Mich. Ct. App. May 14, 1999)(Exhibit 6). Welch also involved a 

trip and fall during the evening on an uneven portion of concrete in a gas 

station parking lot. In that case, the Court reviewed the factual record and 

determined that summary disposition for the defendant must be reversed.

In explaining its decision, the Court stated:

Here, an average person traversing the parking lot 

of defendant's indisputably busy gas station at 

night, or even at dusk, while necessarily keeping a 

watchful eye on traffic, would likely not have 

discovered the 1 to 1 1⁄2 inch heave in the concrete. 

Although the heave was sufficiently large to trip 

someone, it was not necessarily large enough to be 

visible in ill-lit, distracting conditions, especially 

since both the low and high surfaces of the uneven 

concrete were the same dull, gray color. 

Accordingly, the trial court erred in concluding that 

the danger posed by the heave was open and 

obvious as a matter of law.

Id. at *1.

The facts presented in Welch are almost identical to the case at bar. 

Mr. Campbell also encountered a busy gas station during the evening 

hours. He also encountered a heave (uneven area) in the concrete that was 

between an inch or two inches. As appreciated in Welch, casual inspection 

in such conditions would involve keeping a watchful eye for traffic, other 

pedestrians, etc. Casual inspection would not involve searching the 

Case 4:15-cv-12404-LVP-EAS ECF No. 20, PageID.205 Filed 04/20/16 Page 27 of 34
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ground directly beneath ones feet for possible dangers when exiting a 

vehicle. 

The hazards of Defendant’s parking lot are also analogous to those 

encountered by the plaintiff in Siorakes v. Target Corp. No. 295034, 2011 WL 

1564616 (Mich. Ct. App. April 26, 2011) (Exhibit 7). In that case, the 

plaintiff fell and was injured after she stubbed her toe in the parking lot. 

While awaiting medical treatment, the plaintiff noticed an area of uneven 

cement near where she was walking. Upon later returning to the scene, 

Ms. Siorakes’ husband observed a discontinuity between a slightly raised 

concrete piece and the adjoining slabs of cement. Id. at *1. The height 

differential of the slope and the nearby slab of sidewalk measured between 

one-half and seven eighths of an inch. Id. The trial court granted Target

summary disposition. The Court of Appeals reversed. In analyzing the 

open and obvious danger doctrine, the Court stated:

The defect is difficult to discern in the photographs, 

in part because of its small size and in part because 

of its color and contours blend with the 

surrounding sidewalk. We conclude that 

reasonable minds viewing the photographs could 

differ with respect to whether the area of the 

sidewalk discontinuity qualified as open and 

obvious to a reasonable invitee on casual inspection. 

See M Civ JI 19.03. Accordingly, the open and 

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obvious danger doctrine does not afford a basis for 

summary disposition of Siorakes’s premises liability 

claim.

Id. at *3.

Defendant is not entitled to summary judgment based on Michigan’s 

open and obvious danger doctrine. The uneven crack created by the 

abutting slabs of concrete was only steps away from Mr. Campbell’s feet 

when he exited the vehicle, and the crack was not visible upon casual 

inspection. When the totality of the facts are considered in the light most 

favorable to Plaintiff, it is clear that questions of fact exist that must be 

decided by the jury. Mr. Campbell is a disabled individual who exited his 

vehicle on a dark March evening at approximately 7:30 p.m. He was 

looking forward, as one would expect. The crack was almost directly 

under his feet as he exited the vehicle. He was only able to take one or two 

steps before he fell. Shadowed by his vehicle, Mr. Campbell would not 

have been able to perceive the area. “Casual inspection” would not require 

him to perceive that area. When exiting a vehicle you look out, not down. 

Defendant’s motion for summary judgment must be denied. 

Case 4:15-cv-12404-LVP-EAS ECF No. 20, PageID.207 Filed 04/20/16 Page 29 of 34
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III. Should the Court determine that the uneven crack caused by 

the abutting slabs of concrete was open and obvious, 

Defendant still owed a duty to Mr. Campbell. When special 

aspects of a condition make even an open and obvious risk 

effectively unavoidable, the premises possessor has a duty to 

undertake reasonable precautions to protect invitees from 

that risk.

Even if this Court concludes that the uneven crack created by the 

abutting slabs of concrete was open and obvious, there remains a genuine 

issue of material fact as to whether the defect was effectively unavoidable 

and unreasonably dangerous. “[A] premises possessor is not required to 

protect an invitee from open and obvious dangers, but, if special aspects of 

a condition make even an open and obvious risk unreasonably dangerous, 

the premises possessor has a duty to undertake reasonable precautions to 

protect invitees from that risk.” Lugo, 464 Mich. at 517.

In Bertrand, the Michigan Supreme Court held that the unique 

character, location or conditions surrounding ordinary steps have the 

potential to make them unreasonably dangerous despite their obviousness. 

Bertrand, 449 Mich. at 617. In Lugo, the Court explained the concept of 

“special aspects” and gave examples of what would constitute a special 

aspect. The Court looked to whether the condition had the potential for a 

uniquely high likelihood or severity of harm or whether the defect was 

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effectively unavoidable.

Michigan law has always held that questions of reasonableness are 

for the jury to decide, and where reasonable minds can differ, it is for the 

jury to determine whether the risk was “open and obvious” or posed a risk 

of “unreasonable” harm. In Bertrand, the Michigan Supreme Court held 

that “if the proofs create a question of fact that the risk of harm was 

unreasonable, the existence of duty as well as breach become questions for 

the jury to decide . . . . . If the jury determines that the risk of harm was 

unreasonable, then the scope of the defendant’s duty to exercise reasonable 

care extended to this particular risk”. Bertrand, 449 Mich. at 617. See also, 

Woodbury v. Bruckner (On Remand), 248 Mich. App. 684, 693-684, 650

N.W.2d 343 (2001).

The uneven crack created by the abutting slabs of concrete was 

effectively unavoidable. The uneven crack was located immediately 

adjacent to the door and directly under the area where unsuspecting 

handicap passengers, such as Mr. Campbell, would park and exit their 

vehicles. It extended over the most immediate, direct path to the only 

entrance. Moreover, the uneven crack spanned the entirety of the parking 

lot, rendering it effectively unavoidable. Defendant’s employees admitted 

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that they were well aware of this danger; they simply chose not to do 

anything about it. Such an apathetic rationale is inexcusable. Because the

uneven crack caused by the abutting slabs of concrete was effectively 

unavoidable, Defendant’s motion for summary judgment must be denied.

IV. There is no merit to Defendant’s unsupported allegation that 

the uneven crack created by the abutting slabs of concrete 

that caused Mr. Campbell’s fall was not a dangerous 

condition.

In an ‘everything and the kitchen sink’ attempt to avoid 

responsibility for Mr. Campbell’s injuries, Defendant argues that the 

uneven crack caused by the abutting slabs of concrete was not a dangerous 

condition. That argument flies in the face of the case law cited above. Both

Welch and Siorakes, supra involved dangers associated with uneven portions 

of concrete in a parking lot. Additionally, in the context of municipalities, 

the dangers associated with uneven slabs of sidewalk are a frequent topic 

of litigation. See Glancy v City of Roseville, 457 Mich. 580, 577 N.W.2d 897 

(1998). 

In an attempt to support this baseless argument, Defendant’s Brief 

cites to case law that addresses issues primarily of causation. That case law 

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24

is not applicable here. Mr. Campbell realized immediately after falling 

what caused him to fall. He testified consistent throughout his deposition 

that the uneven crack created by the abutting slabs of concrete caused his 

fall. Exhibit 2, p. 15, 33-34, 35, 40. There is no causation defense to 

Plaintiff’s claims. Defendant’s motion for summary judgment must be 

denied. 

CONCLUSION AND RELIEF REQUESTED

Defendant invited patrons, including Plaintiff, onto its premises and 

provided handicap parking spaces that were required to be maintained in 

accordance with the Americans with Disabilities Act. Those parking spaces 

were immediately adjacent to the entrance. On March 18, 2014, Mr. 

Campbell, a disabled American, exited his wife’s vehicle and took one or 

two steps along the most immediate, direct route to the only entrance for 

Defendant’s gas station. His casual inspection did not reveal the uneven 

crack almost immediately under his feet. When the totality of the factual 

evidence is considered in the light most favorable to Plaintiff, Defendant’s 

Motion for Summary Judgment must be denied.

Case 4:15-cv-12404-LVP-EAS ECF No. 20, PageID.211 Filed 04/20/16 Page 33 of 34
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Respectfully submitted,

/s/ Christian P. Collis 

GEOFFREY N. FIEGER (P30441)

CHRISTIAN P. COLLIS (P54790)

Fieger, Fieger, Kenney & Harrington, P.C.

Attorneys for Plaintiff

Dated: April 20, 2016

PROOF OF SERVICE

I hereby certify that on April 20, 2016, the above 

document was served upon all counsel of record via 

electronic and first class mail. I declare under the 

penalty of perjury that the foregoing is true and 

accurate to the best of my knowledge and belief. 

___________/s/ Denise A. Herig______________

Denise A. Herig, Paralegal to

Christian P. Collis, Esq

Case 4:15-cv-12404-LVP-EAS ECF No. 20, PageID.212 Filed 04/20/16 Page 34 of 34