UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

DONALD E. SPARKS, JR.,

Plaintiff, 

v.

WAL-MART STORES, INC.,

Defendant. 

_______________________________________/

CIVIL CASE NO. 02-40351

HONORABLE PAUL V. GADOLA

U.S. DISTRICT COURT

ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION

Plaintiff Donald E. Sparks filed this negligence suit after he was injured by a fishing rod

display at a Wal-Mart store. Defendant Wal-Mart filed a motion for summary judgment on three

issues, which the Court denied. Before the Court is Defendant’s motion for reconsideration. For

the reasons provided below, the Court will deny the motion.

I. Background 

This is a premises liability action brought by Plaintiff Donald E. Sparks (“Sparks”) against

Defendant Wal-Mart Stores, Inc. (“Wal-Mart”). Plaintiff alleges that Defendant negligently failed

to maintain or inspect the premises of its Gaylord, Michigan store to ensure that the premises was

safe for business invitees. Plaintiff further alleges that this failure caused a ceiling mounted display

to fall from the ceiling and injure him. On August 6, 2004, Defendant filed a motion for summary

judgment. The Court held a hearing on the motion on February 10, 2005, and entered an order

denying the motion on March 16, 2005. Defendant then filed a motion for reconsideration on March

28, 2005, asking the Court to reverse its order denying summary judgment for Defendant.

4:02-cv-40351-PVG Doc # 71 Filed 09/14/05 Pg 1 of 8 Pg ID 1259
2

Specifically, Defendant argues that an unpublished Michigan Court of Appeals case, issued the day

before this Court entered its order, is intervening case law that warrants reversal of the order. The

case is Boyer v. Target Corp., No. 251790, 2005 Mich. App. LEXIS 711 (Mich. Ct. App. Mar. 15,

2005). This order incorporates by reference the facts in the Court’s March 16, 2005 order denying

Defendant’s motion for summary judgment.

II. Legal Standard

The Court may only grant reconsideration in limited circumstances. To succeed on a motion

for reconsideration, “[t]he movant must not only demonstrate a palpable defect by which the court

and the parties have been misled but also show that correcting the defect will result in a different

disposition of the case.” E.D. Mich. Local R. 7.1(g) (3). A “palpable defect” is “a defect that is

obvious, clear, unmistakable, manifest, or plain.” United States v. Cican, 156 F. Supp. 2d 661, 668

(E.D. Mich. 2001) (Gadola, J.). Furthermore, the Court “will not grant motions for rehearing or

reconsideration that merely present the same issues ruled upon by the court, either expressly or by

reasonable implication.” E.D. Mich. Local R. 7.1(g) (3).

III. Analysis

Defendant’s motion for summary judgement raised three issues: First, whether Defendant

had any notice of the dangerous condition associated with the display; Second, whether the risk of

harm from the display was open and obvious; and Third, whether Plaintiff had adequately set forth

evidence of a defect in the display, which is necessary to demonstrate causation. Defendant’s

motion for reconsideration addresses only two of the three issues, the first issue of notice and the

third issue of defect and causation. The motion for reconsideration does not address the second issue

4:02-cv-40351-PVG Doc # 71 Filed 09/14/05 Pg 2 of 8 Pg ID 1260
3

of whether the risk of harm from the display was open and obvious. Accordingly, the Court will

address only Defendant’s arguments that the Court reconsider its ruling regarding the first and third

issues. 

A. Boyer v. Target Corp.

Before considering Defendant’s arguments, a brief summary of the facts and legal reasoning

in Boyer is necessary. The plaintiff in that case, Donna Boyer (“Boyer”), was appealing the trial

court’s grant of summary judgment in favor of the defendant, Target Corporation (“Target”). Boyer

was injured at a Target store when a fireplace utensil fell off of a shelf and hit her right arm and

shoulder. This incident occurred when she reached up to a fireplace display to turn around a price

tag. The fireplace screen, along with utensils, fell toward the plaintiff, who fended off the screen

with her left hand. 

Like the plaintiff in the present case, Boyer sued for negligence, which requires a plaintiff

to prove: “(1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation,

and (4) damages.” Boyer, 2005 Mich. App. LEXIS 711, at *2. Another similarity to this case is that

the court considered Boyer to be an invitee. “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.” Id. (quoting Lugo v. Ameritech Corp., 464 Mich. 512, 516

(2001)). The issue for the Michigan Court of Appeals, then, was “whether the display was an

unreasonably dangerous condition.” Id. If so, the plaintiff owed a duty to the defendant; if not, the

plaintiff owed no duty. The court ruled it was not unreasonably dangerous, and thus, the defendant

did not owe any duty to the plaintiff. The court said it was irrelevant to the issue of being

4:02-cv-40351-PVG Doc # 71 Filed 09/14/05 Pg 3 of 8 Pg ID 1261
4

unreasonably dangerous that the defendant failed to follow its own safety procedures that called for

the fireplace display to be tied down. Regarding causation, the court said that the plaintiff must

provide some explanation for why the fireplace screen and utensils fell on her, which she failed to

do. The court noted that the doctrine of res ipsa loquitur failed because the fireplace was not in the

store’s exclusive control. 

B. Notice

Michigan law requires that a prima facie case of premises liability include sufficient evidence

that the landowner either created the dangerous condition or had actual or constructive notice of the

condition, as this Court noted in its order denying Defendant’s motion for summary judgment. This

Court cited Berryman v. Kmart, 193 Mich. App. 88, 92-93 (1995), which in turn quotes Serinto v.

Borman Food Stores, 280 Mich. 637, 640-41 (1968) for that “well established” principle. See also

Clark v. Kmart Corp., 465 Mich. 416, 419 (2001). 

This Court ruled that the store’s safety procedures manual provided notice that the display

should not be suspended from the drop ceiling, and to do otherwise would make it defective and

dangerous. In reaching that conclusion, the Court viewed all the facts in the light most favorable

to, and made reasonable inferences in favor of, Plaintiff, who was the non-moving party. These facts

and inferences included: the display was suspended from the drop ceiling frame, not the building

trusses, or joists; the safety manual’s procedures were in effect at the time of the incident; and, the

drop ceiling was not sturdy enough to support anything besides “kites, scarfs, etc.” as described in

the manual.

Defendant argues that Boyer followed established Michigan law that imposing a legal duty

4:02-cv-40351-PVG Doc # 71 Filed 09/14/05 Pg 4 of 8 Pg ID 1262
5

on an owner or possessor of property based upon internal policies, such as safety procedures, is

contrary to public policy. Defendant then applies that principle to the present case, stating that

suspending the display in violation of safety procedures does not impose a duty on Defendant, “nor

does it provide notice that any dangerous condition existed with respect to the display.” Def. Br.

at 4. 

The problem with Defendant’s argument is that it uses the legal analysis for the element of

duty and applies it to the issue of notice. Defendant is correct insofar as internal policies do not

create a duty under Michigan law. That, however, is a different matter from the issue of whether

Defendant’s internal policies, the safety manual in this case, provided notice that the display was

dangerous. Defendant is asking this Court to reconsider its ruling on the issue of notice because of

a legal principle for the element of duty. 

The Court, in its order, ruled that Defendant had notice of the display’s danger because a

reasonable inference from its internal safety procedures is that the drop ceiling cannot hold the

display. The Court did not address the issue of duty because Defendant’s motion for summary

judgment did not address that issue. Now, Defendant is trying to conflate the two issues, using a

legal rule for the issue of duty to argue about the issue of notice. Neither the Boyer case nor

Defendant’s brief provide any reason for the Court to agree.

C. Defect & Causation

In a Michigan premises liability action for negligence, a plaintiff must provide evidence of

a defect in order to establish factual and proximate causation for the injury. Skinner v. Square D

Co., 445 Mich. 153, 159 (1994). The Court denied Defendant’s motion for summary judgment on

4:02-cv-40351-PVG Doc # 71 Filed 09/14/05 Pg 5 of 8 Pg ID 1263
6

this issue because Plaintiff himself witnessed the display fall, and there was evidence suggesting a

defect in the display, which supported his causation argument. Because the Court was considering

Defendant's motion for summary judgment, it viewed the evidence in the light most favorable to the

Plaintiff, and it made reasonable inferences in his favor. Those inferences included the key point

that the display fell because it was suspended from the drop ceiling, which could not support the

weight, rather than the building trusses or joists.

Defendant argues that Boyer is factually analogous because the plaintiff in that case does not

know exactly how or why the fireplace display fell on her after she reached up and turned around

a hanging price tag. The Boyer court noted that the plaintiff failed to establish any causal

explanation; her testimony “fails to explain how the admittedly heavy piece of furniture fell from

its overhead shelf.” Boyer, 2005 Mich. App. LEXIS 711, at *4. Defendant then argues that

Plaintiff, like the plaintiff in Boyer, does not know why the display fell, has offered no evidence as

to why the display fell, and has merely offered an unsubstantiated theory. 

Defendant's argument does not acknowledge the crucial factual difference between this case

and Boyer. While there is no explanation for why or how the fireplace display fell on the plaintiff

in Boyer, there is an explanation for why the fishing rod display fell on Plaintiff. The explanation

here is that the display was hung from a drop ceiling. For purposes of Defendant’s summary

judgment motion, the Court concluded, from Plaintiff’s evidence, that the drop ceiling was not

strong enough to support the large wooden display. This conclusion resulted from the store’s own

safety manual which instructs that the drop ceiling should only support kites, scarves and similar

light items and from the reasonable inference that the force of gravity exerted a constant pull on the

4:02-cv-40351-PVG Doc # 71 Filed 09/14/05 Pg 6 of 8 Pg ID 1264
7

display. Eventually, the insufficient drop ceiling gave out to that constant force and the display fell

on the Plaintiff. In contrast, the fireplace display in Boyer was sitting on a shelf, and the plaintiff

did not allege it was slanted or tilted, or that someone bumped it, or any other explanation for how

an item at rest suddenly moves.

IV. Conclusion

In conclusion, Defendant has failed to “demonstrate a palpable defect,” E.D. Mich. Local

R. 7.1(g) (3), in the Court's ruling, or that Boyer, the unpublished Michigan Court of Appeals case,

represents case law that warrants reversal of the Court’s order denying Defendant’s motion for

summary judgment. 

ACCORDINGLY, IT IS HEREBY ORDERED that Defendant’s motion for

reconsideration [docket entry 67] is DENIED.

SO ORDERED.

Dated: September 14, 2005 s/Paul V. Gadola 

HONORABLE PAUL V. GADOLA

UNITED STATES DISTRICT JUDGE

4:02-cv-40351-PVG Doc # 71 Filed 09/14/05 Pg 7 of 8 Pg ID 1265
8

Certificate of Service

I hereby certify that on September 14, 2005 , I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system which will send notification of such filing

to the following:

 Pal S. Koczkur; Gary L. Schmalzried; Leonard A. Siudara , and I hereby

certify that I have mailed by United States Postal Service the paper to the following nonECF participants: .

s/Ruth A. Brissaud 

Ruth A. Brissaud, Case Manager

(810) 341-7845

4:02-cv-40351-PVG Doc # 71 Filed 09/14/05 Pg 8 of 8 Pg ID 1266