UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KENYA BANKS

Plaintiff,

v.

DOLGENCORP, LLC,

Defendant.

 /

Case No. 15-12457

Honorable Nancy G. Edmunds

OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT [13]

This matter comes before the Court on Defendant’s motion for summary judgment.

Plaintiff claims she suffered injuries after falling on a sticky substance on the floor of

Defendant’s store. Plaintiff filed suit, alleging that her injuries were caused by Defendant’s

negligence. Defendant timely removed to this Court. For the reasons stated herein,

Defendant’s motion for summary judgment is GRANTED.

I. Facts

On September 2, 2014, Plaintiff went to Defendant’s store to buy milk and cookies.

(Pl.’s Dep., Dkt. 15-2, at 11-12.) Plaintiff walked toward the back of the store where the

beverage coolers were located. (Id. at 12-15.) After realizing the milk she wanted was not

there, she began to turn around. (Id.) According to Plaintiff, she took approximately two

steps when her sandal got caught in a sticky substance on the floor. (Id.) Plaintiff fell and

hit her knee on the ground. (Id.) 

Plaintiff claims she saw a “reddish-pinkish” spot on the floor where she fell. (Id. at 16.)

Although she did not see the spot before her fall, Plaintiff testified she would have seen it

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had she looked down. (Id. at 17.) She then alerted the cashier, Latashia Williams, of the

spill. (Dkt. 15, at 5.) Williams reported the incident to Mushad Moore, who was working in

a management position at the time. (Id.) Williams and Moore were the only two employees

in the store from the time the store opened at 8:00 a.m. to the time of the fall. (Id.) Moore,

Williams, and Plaintiff went to the location of the fall.1

 (Id.) At their depositions, both

Williams and Moore testified they did not see anything on the ground when looking for the

alleged sticky spot. (Williams Dep., Dkt. 15-3, at 7; Moore Dep., Dkt. 15-4, at 6-7.) Williams

also states she felt the floor and could not feel anything sticky. (Dkt. 15-3, at 6-7.) 

After the inspection, Moore filled out an incident report by writing down “exactly what

[Plaintiff] told [him] had happened.” (Dkt. 15-4, at 7.) The report states that a “sticky spot”

caused the fall and notes that “safety checks” had not yet been completed on that date.

(Dkt. 15-5.) Plaintiff left the store and went to the hospital, where her left knee was X-rayed.

Plaintiff’s hospital records indicate there was no fracture, dislocation, or swelling to her

knee. (Dkt. 13-4.) On June 11, 2015, Plaintiff filed this suit, claiming Defendant was

negligent and she was injured as a result. (Dkt. 1-2.)

II. Standard

It is well established that summary judgment under Federal Rule of Civil Procedure

56 is proper when 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). When

reviewing the record, “the court must view the evidence in the light most favorable to the

 1As Plaintiff admits, Moore stated Williams did not mop up the area before he arrived at

the location of the spill, thereby “eliminating the possibility that she had cleaned up the

sticky spot prior to his inspection.” (Dkt. 15, at 5-6.) 

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non-moving party and draw all reasonable inferences in its favor.” U.S. S.E.C. v. Sierra

Brokerage Servs., Inc., 712 F.3d 321, 327 (6th Cir. 2013) (internal citation omitted).

“[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if

the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

III. Analysis

To establish a prima facie negligence case, a plaintiff must show (1) a duty owed by

the defendant to the plaintiff; (2) a breach of that duty; (3) causation; and (4) damages.

Fultz v. Union-Commerce Assocs., 470 Mich. 460, 463 (2004). The duty a landowner owes

to a visitor is dependant on that person’s status. Stitt v. Holland Abundant Life Fellowship,

462 Mich. 591, 596 (2000). Here, the parties do not dispute that Plaintiff was an “invitee”

and therefore, Defendant had a duty to “exercise reasonable care to protect [Plaintiff] from

an unreasonable risk of harm caused by a dangerous condition” on the premises. Lugo v.

Ameritech Corp., Inc., 464 Mich. 512, 516 (2001). 

Defendant moves for summary judgment, arguing that the “sticky spot” was open and

obvious and therefore Defendant did not have a duty to protect or warn Plaintiff.

Alternatively, Defendant argues it is entitled to summary judgment because Plaintiff has

failed to establish that Defendant had adequate notice of the alleged “sticky spot” condition.

The Court considers both arguments, in turn.

A. Open and Obvious

Although a premises owner has a duty to exercise reasonable care to protect invitees

from unreasonable risks of harm, such duty generally does not encompass open and

obvious dangers. See Lugo, 464 Mich. at 516. That is, “[w]here the dangers are known to

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the invitee or are so obvious that the invitee might reasonably be expected to discover

them,” an invitor generally owes no duty to protect or warn the invitee. Id. (citation omitted).

Therefore, if the purported sticky spot was “open and obvious,” Defendant did not owe

Plaintiff a duty and Plaintiff’s negligence claim must fail.

The standard for determining whether a condition is open and obvious is “whether an

average user with ordinary intelligence [would] have been able to discover the danger and

risk presented upon casual inspection.” Slaughter v. Blarney Castle Oil Co., 281 Mich. App.

474, 478 (Mich. Ct. App. 2008) (citation omitted). This objective factual inquiry “requires

evaluation of the circumstances and surroundings of the hazard.” Farhood v. Bed Bath &

Beyond, Inc., No. 10-13877, 2011 WL 3880492, at *3 (E.D. Mich. Sept. 2, 2011).

Here, Defendant argues that the “reddish-pinkish” “sticky spot” on the white floor was

open and obvious and that there is no issue of fact because Plaintiff admits she would have

seen the spot had she looked down. (Pl.’s Dep., Dkt. 15-2, at 17.) For support, Defendant

points to Millikin v. Walton Manor Mobile Home Park Inc., 234 Mich. App. 490 (Mich. Ct.

App. 1999) and Kennedy v. Great Atl. & Pac. Tea Co., 274 Mich. App. 710 (Mich. Ct. App.

2007). In both cases, the plaintiffs admitted they would have seen the hazardous conditions

had they been looking and the courts affirmed summary disposition for the defendants,

concluding that the conditions were open and obvious. But each of these cases can be

distinguished. In Millikin, in addition to the plaintiff’s admission, the court also relied on

pictures showing the clearly dangerous condition at issue (support wire strung outside the

plaintiff’s mobile home). 234 Mich. App. at 497-98. Here, in contrast, there are no pictures

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showing the alleged sticky spot.2

 And in Kennedy, the court noted not only had Plaintiff

admitted that the crushed grapes on the floor “were readily observable,” but also that

“several other people all noticed the existence of the crushed grapes and grape residue

once they actually looked at the floor.” 274 Mich. App. at 713-14. Here, in contrast, the two

employees present at the time of Plaintiff’s fall testified they could not see (or even feel) the

“sticky spot” upon close examination minutes after Plaintiff’s fall. 

The Court cannot conclude that no reasonable jury would find the sticky spot was not

open and obvious. On the one hand, Plaintiff admits she would have seen the spot had she

been looking; on the other hand, however, Defendant’s employees state they could not see

the spot even upon careful inspection. There is a genuine dispute of fact as to whether an

average user with ordinary intelligence would have been able to discover the allegedly

dangerous condition upon casual inspection. 

B. Notice

Alternatively, Defendant argues it is entitled to summary judgment because Plaintiff

cannot show Defendant had notice of the dangerous condition. To establish a premises

liability claim, Plaintiff must be able to show that Defendant “had actual or constructive

notice of the condition at issue.” Lowrey v. LMPS & LMPJ, Inc., No. 323049, 2015 WL

8484482, at *5 (Mich. Ct. App. Dec. 10, 2015). That is, Defendant must have known about

the condition or “would have discovered it had it conducted a reasonable inspection.” Id.

 2While Defendant has submitted pictures of the location of the fall, the pictures do not

purport to show the alleged sticky spot. Rather, they show the color of the white tile floor

and the proximity to the refrigerated beverage cases. (Dkt. 13-7.) 

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Plaintiff does not argue that Defendant had actual notice of the alleged sticky spot;

rather, the focus is on constructive notice. It is well established that the law will only “impute

knowledge of the dangerous condition to the premises possessor if the dangerous condition

is of such a character or has existed for a sufficient time that a reasonable premises

possessor would have discovered it.” Grandberry-Lovette v. Garascia, 303 Mich. App. 566,

575 (Mich. Ct. App. 2014). The constructive notice inquiry is generally a question of fact.

Banks v. Exxon Mobil Corp., 477 Mich. 983, 984 (2007).

Defendant argues summary judgment should be granted because Plaintiff has failed

to present evidence that would establish that there was sufficient time for Defendant’s

employees to have discovered the alleged hazard. That is, there is no evidence of the

origin of the spot or its duration and it would be purely speculative to conclude the

substance started as a liquid and dried after some amount of time. (Dkt. 13, at 17.)

Because notice is a necessary element of Plaintiff’s claim, Defendant argues Plaintiff’s

claim must fail. 

Plaintiff responds that summary judgment should be denied because she has put forth

sufficient evidence which, when viewed in the light most favorable to her, would allow a

reasonable jury to conclude that Defendant had constructive notice of the dangerous

condition. (Dkt. 15, at 12.) The evidence Plaintiff points to is the location of the fall (the area

immediately in front of the beverage coolers) and the color and consistency of the spot

(“reddish-pinkish” and “sticky”). Plaintiff contends this evidence is sufficient to allow a jury

to conclude that “the sticky spot was caused when a liquid from the cooler was spilled and

had enough time to dry,” and thus “had been there long enough that Defendant should

have known about it.” (Id.) The Court disagrees.

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Plaintiff testified she does not know what was on the floor, where it came from, or how

long it was there. (Pl.’s Dep., Dkt. 13-2, at 12.) Although there is some circumstantial

evidence regarding what the substance may have been (i.e., Plaintiff’s testimony that the

spot was located near the beverage cooler and was “sticky,” “reddish-pinkish,” and “looked

like juice,”) there is no evidence regarding when or how the sticky spot first appeared. Such

information is necessary in determining whether a reasonable jury could conclude the

hazard had been present for enough time to impart constructive notice on Defendant. See

Nicholson v. Eagle Theater Entm’t, LLC, No. 321326, 2015 WL 3649184, at *2 (Mich. Ct.

App. June 11, 2015) (unpublished opinion) (affirming summary disposition to the defendant

in part because “when and how the puddle first appeared remain[ed] unknown”).

Recently, a district court in New York considering a similar matter determined that

mere “circumstantial evidence that the substance on the floor was ‘sticky’” is not enough

to infer that the spill had been present for enough time to impart constructive notice on the

store employee. Gonzalez v. Kmart Inc., 13-CV-5910, 2016 WL 3198275, at *6 (E.D.N.Y.

June 8, 2016). There, the plaintiff failed to offer evidence showing that “the substance

would not have been sticky upon spilling and only became sticky after a period of time,” and

the court granted summary judgment to the defendant. Id. Similarly, here, there is no

evidence that the substance that spilled was not sticky upon spilling. Even if the Court

assumed the substance that spilled was juice, Plaintiff has presented no evidence

regarding the length of time it would take for juice to become “sticky.” In Gonzalez, the

district court stated, “absent evidence regarding the progressively congealing properties

of the spill substance, any inference of constructive notice based on Plaintiff’s description

of the substance as ‘sticky’ is pure speculation.” Id. Here, too, Plaintiff’s evidence regarding

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the length of time that the purported substance was on the floor is pure speculation. Even

viewing the facts in the light most favorable to Plaintiff, Plaintiff has failed to present enough

facts to create a triable issue for a jury with regard to notice—a necessary element of her

claim.

IV. Conclusion

For the above-stated reasons, the Court GRANTS Defendant’s motion for summary

judgment. 

SO ORDERED.

S/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: June 28, 2016

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

on June 28, 2016, by electronic and/or ordinary mail.

S/Carol J. Bethel 

Case Manager

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