NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0929n.06
No. 11-1679
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

KATHRYN MATTESON, aka Kathry n Matteson Klein, Plaintiff-Appellant,

v. NORTHWEST AI RL I

NES, I NC., Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) On Appea l from the United Sta t es District Court for the Eastern District of Michig an

Be fore : BO GGS, GI L MAN, and D ONAL D, Circuit J udg es. BO GGS, Circuit J udg e. Kathry n Matteson slipped and fell in Detroit’s Metropolitan Way ne County Airport. Sh e s u ff er ed a broken rig ht hip and sustained damag e to her rig ht rotator cuff

. Matteson filed t h i s premises-liability suit, alleg ing that the party responsible for the terminal, Northwe st Airl i n es , n eglig ently failed to maintain a safe premises. The district court g rante d
summary judgme nt for Northwe st, holding that the substance that cause d Mat t es o n ’s fall was an
open and obvious dang er as a matter of law. Be cause the rec ord, construed in Matteson’s favor , could support a c ontrary

finding by

a re asonable jury , we r ever se.

I
M atteson was in the Detroit Metropolitan Way ne County Airport on September 17, 2009, waiting for her flig ht back to Florida , wher e she lived. Wit h her wer e two co-w orker s, J oe McGrathNo. 11-1679

Matteson v. Northwest Airlines, Inc.

an d E ri c Meiners. The three arr ived at the airport ear ly , spent some time at a “sky club” where
Matteson had a g lass of wine, and ate dinner at an airport rest au ra n t

. After dinner, they went toge ther toward t heir respec tive g ates. McGrath and Meiners walke d toge ther, talking. Matteson walked a head of them.
As she proce eded on a til ed ar ea b etwee n two moving walkwa y s that she was trave rsing , Matteson s lipped and fell. “I was just walking l ooking ahea d, looking for m y g ate,” she t estified, “then all of a sudden I ’m down.” Matteson, embar rasse d, tried “to jump up,” but “couldn’ t move.” She “looked around to see if [she] fell on something, and there was a clea r substance

. . . it was thick . . . [and] clea

r.” Ma tteson testified that she did not see the substance be fore she fe ll. Meiners, McGrath, and Danny Minton, a by stander who saw the fall, c a me to Matteson’s aid.
None of the three noticed the substance befor e Matteson fe l l ; al l noticed it afte rwa rd. Meiners testified that, when he saw Matteson fall, his “line of s i gh t we n t ri g ht to [Matteson] .” About a second later, when he was a step awa y from Matteson, his “g aze b ro ad en ed ” and he saw the substance. McGrath did not see the substance until he “g ot to Matteson,” but he testified th at he could not have seen it from a distance beca use Matteson’s b o d y woul d have blocked his view. Minton, who was walking toward Matteson from the opposite direc tion, saw Matteson “step off of the moving sidewalk

. . . . At that time [he] did not notice any spill. Howeve r, [he] did see her take

a couple steps

. . . and slip on something, fell very hard [si c]. [He] then noticed that there was something on the g round.” 1

The witnesses’ testimony on the color of the substance is not consistent. Matteson testified 1 that it was clea

r; Meiners and McGrath testified that it was l i gh t g ree n, like Mountain Dew or - 2 -No. 11-1679

Matteson v. Northwest Airlines, Inc. M ei n er s and McGra

th helped Matteson to a chair in a g ate- side waiting are a, called fo r medical assistance , and notified two Northwe st Airlines employ ees of the substance on the g round. The employ ees, Meiners testified, s aid that they alre ady knew about the spill. Minton went to Matteson, asked if she was hurt, said that he saw what happene d, and g ave Matteson h i s co n tact information. A woman in a restaur ant or reta il uniform also approa ched Matteson, expressing her 2
sy mpathy and explaining that “she had told someone to clea n [t he substance] up twenty minutes ag o and they still hadn’t clea

ned it up.” The woman in uniform then g ot paper towels and started to clea n the s ubstance

. Acc ording to McGra th, the woman “wa s cover ing a m u ch b i gger are a [ with paper towels] than the are a of moisture that I saw when I first went to assist [Matteson] .” McGrath could, howeve r, “see that there was moisture” wher e Matteson fell from t en t o fiftee n fee t awa y . Eventually , an air

port clea ning c rewclea

ned the a rea . Mat t es o n fi led this suit in the United States District Court for the Easter n District of Michig an, alleg ing that Northwe st Airlines cause d h er i n j u ri es by its failure to maintain a safe premises. After discovery , the district court g rante d summary judgme nt for Northwe st. I t rea soned that, beca use Meiners, McGrath, and Minton wer e all able to see the substance afte r Matteson fell, the substance qualified as an open-a nd-obvious hazard under Michig an law. I n addition, the

Gatora de; Minton testified that it was light red. For purposes of summary judgme nt, we must take the fa cts in the light most favor able to the non-moving pa rty . Thus, we a ssume that the substance was clea r, since a clea

r substance is usually

more diff

icult to see than a

substance w ith color. The fac tfinder, of

course , is free to rea ch a dif fer ent conc lusion. I t does not appea

r that the woman was a Northwe st Airlines employ ee. Rather, she seems 2 to have wor

ked for an air port vendor. - 3 -No. 11-1679

Matteson v. Northwest Airlines, Inc. substance did not pose a specia l risk of harm that would excuse Matteson’s faili n g t o notice it.
Acc ording ly , the district court he ld, Matteson’s suit could not procee d. Matteson appe als.
I I Summary judgme nt is appropr iate when “the movant shows that there is no g enuine dispute
as t o any materia l fac t and the movant is entitled to judgme nt as a matter of l aw.” F E D
. R. C I V
. P.
5 6 (a ). “We review t he gra nt of sum mary judgme nt de novo , draw ing all rea sonable infe re n ce s i n favor of the non-moving party .” V & M Star Steel v. Centimark Corp. , 678 F.3d 459, 465 (6th Cir. 2012). A fac t is m at er i al i f i t “mig ht aff ect the outcome of the suit under the g overning law,” Anderson v. Liberty Lobby, Inc. , 477 U.S. 2 4 2 , 2 4 8 (1 9 8 6), and a dispute is g enuine wher e “the

rec ord taken as a wh o le could

. . . lead a rational trier of fac t to find for the non-moving party .” Matsushita Elec. Indus. Co., Ltd. v. Zenith R a d i o C o rp. , 475 U.S. 574, 587 (1986). Under this standard, “[t] he mere ex istence of a scinti ll a o f evidenc e in support of t he plainti ff’ s position will be ins ufficie nt; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson , 477 U.S. at 252. The moving party , howeve r, ultimately bear s the burden of proving that it is entit led to summary

judgme nt. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986).

I I I
“B eca use jurisdiction in this case is predic ated on diversity , the substantive law of the forum state—her e, Mi chig an—applies.” Armisted v. Stat e Farm Mut. Aut o
. Ins. C o. , 675 F.3d 989, 995 (6th Cir. 2012). Under

Michig an law, the par

ty responsible for

a pre mises ge nera lly

“owe s a duty
to an invitee to exercise rea sonable car e t o p ro t ect the invitee from an unrea sonable risk of harm

caus ed by a dang erous condition.” Lugo v. Ameritec h Corp., Inc. , 629 N.W.2d 384, 386 (Mich. - 4 -No. 11-1679

Matteson v. Northwest Airlines, Inc. 2001). I f, howeve r, a condition is “so obvious that the invitee might rea sonably be expected t o discover [i t] , an invitor owes no duty to protect or w arn the invitee unless he should a nticipate the harm despite k n o wledg e of it on behalf of the invitee.” Ibid. (quoting Riddle v. McLouth Steel Prods. Corp. , 485 N.W.2d 676, 681 (Mich. 1992)). This principle, known as the open-a nd-obvious doctrine, is “an integ ral part of the definition of [t he] duty ” that an invitor owes its invitee. Ibid. Put simply , it mea

ns that an invitor has no duty to protec t its invitee from an open and obvious dang er, unless that dang er ha s special a spects that make it particularly likely to cause harm.
A hazard qualifies as “open and obvious” if “an aver ag e user wit h o rd i n ar y intelligenc e [would] have been able to discover the dang er and the risk prese nted upon casua l inspection[.] That is, is it rea sonable to expect that the invitee would discover the dang er? ” Novotney v. Burger King Corp. , 499 N.W.2d 379, 381 (Mich. Ct. App. 1993). Even an open and obvious hazard, though, can lead to liability , if there are “spec ial aspec ts of the open and obvious condition that differ entiate the risk from ty

pical open a

nd obvious risks so as to crea te an unr easona ble risk of ha

rm.” Lugo , 629 N.W.2d at 387 (interna l quotation marks omitted). A “spec ial aspec t,” for example, might include

an open and obvious hazard that is unavoidable, or a condition that “impose[s] an unrea sonably high risk of sever e harm.” Ibid. I n our open-a nd-obvious inquiry , we must “foc us on the objective nature of the condition of the premises at issue, not on the subjective deg ree of car e used by the plaintiff.” Id. at 390. Michi gan case s on the open-a nd-obvious doctrine are not consistent, particula rly in their application of the t erm “casua l inspection.” Novotney was a premises-liabilit y claim by a woman who fell when she tried to step from the sidewa l k i n fr o n t o f a restaur ant onto a handica p-ac cess - 5 -No. 11-1679

Matteson v. Northwest Airlines, Inc.
ramp. The Michig an Court of Appea ls held that the ramp was an open and obvious danger as a
matter of law beca

use “[t] here is no indication from the rec ord that the ramp was not in plain view

or that, upon casua l inspection, an ordinary user could not asce rtain the nature of the incline and use the ra mp with safety .” Novotney , 499 N.W.2d at 382.
I n rea ching this conclusion, Novotney borrowe d from products-liability jurisprudence. I t applied the principle that a manufa cture r has no duty to war n a purcha ser of a dang er that is “re adily
appar ent or visible upon casua l inspection and rea sonably expected to be rec og nized by the aver ag e

user of ordinary intelligenc e.” Glittenberg v. Doughboy Rec reational Indus. , 491 N.W.2d 208, 210 (Mich. 1992); see also N o vo t n ey , 4 9 9 N.W.2d at 381. The Novotney court emphasized that the 3
condition of t he premises, not the degr ee of car e that the plaintiff exerc ised, is the ly nchpin of the analy sis. Ibid. Nine y ear s later, the Michig an S upreme Court d ecided Lugo

. There , the pl aintiff suffere d harm when she stepped into a pothole in a parking lot. The court held that the open-a nd-obvious doctrine barr ed the claim beca use the hazard was “simply

. . . a common pothole in a parking lot,”

The fit betwee n products liability and premises liability , we note, is imperfe ct. I n t h e 3 products-liability context, it makes sense to r equire casua l inspe ction, for a rea sonable person will usually look at—or casua lly inspect—a product befor e using it. The same is true of some premises. An ordinary person, for instance, will look into a swimming pool befor e she enter s the water

. Floors, though, are somewhat differ ent. People in ordinary life do not “inspec t” the g round b ef o re they walk , ab s en t s o m e specia l rea son to do so, such as the prese nce of ice or snow. Of course , a rea sonable person will look wher e she is g oing. But there is a crit i ca l d i ff er ence betwee n being awa re of one’s surrounding s and looking down at the g round while walking

. This observa tion does not alter our analy sis, since we must take Michig an law as we find it. Stil l, the incong ruity betwee n inspection of a product befor e use and inspection of the g round befor e walking might explain some of the inconsistenc y

in the case s discussed below. - 6 -No. 11-1679

Matteson v. Northwest Airlines, Inc.
t h e p l ai n t i ff “wa sn’t looking down,” and “ther e was no evidenc e of specia l aspec ts that made th e open and obvious pothole unre asonably dang erous.” Lugo , 629 N.W.2d at 388–90. The Lugo court did not explain why the pot hole qualified as an open and obvious dang er. Rather, it used the dang er at issue, “a common pothole[,] as an e x ample . . . [of a] condition [ that] is open and obvious and thus cannot form the basis of liability ag ainst a premises possessor.” Id. at 388. The court then m o v ed to the second piece of the open-a nd-obvious analy sis: whether the 4 pothole that it h e ld w a s o p e n and obvious had “spec ial aspec ts” that made it unrea sonably dang erous
. Id. at 388–90. Lugo , in shor t, did not a ddress the meaning of “ca sual inspection” in the open-andobvious context

.

This cursor

y view seems to stem from the Lugo court’s belief that the pothole was a 4 sufficie ntly common occur renc e to be direc tly analog ous to a stair that cause s a plaintiff to trip and fall. See Lugo , 629 N.W.2d at 389 (“The prese nt case is substantially simil ar to Maurer v. Oakland Co Parks & Rec reation Dep’ t

. . . . [where] the plainti ff s lipped and fell on an unmarke d ceme nt step.” (interna l quotation marks omitted)). I n the context of stairs, the Michig an Supreme Court had expressly held: [B]ecause steps are the ty pe of ever

y day occur

renc e that people en co u n t er, under most circ umstan ces, a rea sonably prudent person will look wher e he is g oing, will observe the steps, and will take appropr iate car e for his own safe ty

. Under ordinary circ umstances, the overr iding public policy of encour ag ing people to take rea sonable car e for their own safe ty prec ludes imposing a duty on the possessor of land to make ordinary steps foolproof. There fore , the risk of harm is not unrea sonable. Howeve r, wher e there is something unusual ab o ut the steps, beca use of their char acte r, location, or surrounding conditions, then the duty of the possessor of land to exercise rea sonable c are rema ins. Bertrand v. Alan Ford, Inc. , 537 N.W.2d 185, 18 9

– 9 0 ( M ich. 1995) (footnotes and internal quotation marks omitted). Thus, in stair case s, the court could normally assume—as the Lugo court did—that the dang er w as open a

nd obvious, and focus e ntirely on the spec ial-aspe cts ana ly sis. - 7 -No. 11-1679

Matteson v. Northwest Airlines, Inc. The later o p en -a n d -obvi ous case s that interpre t these principles do not provide consistent
g uidance

. I n Snyder v. Jack ’s Fruit Marke t , No. 188581, 1997 WL 33354547 (Mich. Ct. App. J an. 17, 1997), for instance, the Michig an Court of Appea ls reve rsed and rema nded a trial court’s g rant of sum mary dispositi on in favor of the def endant. Sny der, the plaintiff, s lipped and fell on a pool of water approximately the s i z e o f a basketba ll that had collecte d on the floor in front of a meat cooler

. Id. at *1. The Michig an Court of Appea ls held that the dang er was not open and obvious.
I t rea soned: [B]ecause a sho p p er may be distracted by product display s and promotions, or preoc cupied with the sear ch for the desired product, or other thoughts rela ted to the shopping experience as they walk throug h the store, it may not be unrea sonable for a shopper not to notice a puddle of water on the floor. There fore , we con s i d er i t to be a question of fac t as to whether p l aint iff should have discovere d the puddle of water and re alized its dange r. Id. at *2. The S

n yd er p anel, then, considere d the entire context of the plaintiff’s shopping experience ; it did not require that she scruti n i z e the very are a wher e the pool of water collecte d.
I ndeed, Snyder express l y disapproved the latter line of inquiry , writing : “De fenda nt arg ues that, beca use plaintiff stated that if she had looked she would have see n the puddle befor e she fell, the dang er w as open a

nd obvious and defe ndant ca nnot be held liable. We disag ree .” Ibid.
I n Brooks v. Bruce Campbell Dodge, Inc. , No. 293039, 2010 WL 3719228 (Mich. Ct. App. Sept. 23, 2010), by contra st, another panel of the Michig an Court of Appea ls held that a puddle of liquid in a car deale rship’s service are a was open and obvious. Such a puddle, the court rea soned, “is neither unusua l nor unforesee able . . . [and] if casual inspec tion is t o mean a ny thing, it must at

a minimum mean looking at one’s surrounding s, even if mome n t ar i l y . ” Id

. at *1. Simi larly , the

- 8 -No. 11-1679

Matteson v. Northwest Airlines, Inc. Michig an Court of Appea ls held that “the slipping hazard posed by

. . . crushe d g rape s or g rape residue” was an open and ob v i o u s d ang er in Kennedy v. Atlantic & Pacific Tea Co. , 737 N.W.2d 179, 181 (Mich. Ct. App. 2007). There , a shopper slipped on fallen g rape s. “[H]e and sever al other people all noticed the exis tence of the crushe d g rape s or g rape residue once they actua lly looked at the floor.” Id. at 182. This, the court held, “establishe[d] that [Kennedy ] wo uld have noticed t he potentially hazardous condition had he been pay ing attention.” Ibid. That Kenne dy was a shopper in a groc ery store replete with distractions did not require a diffe rent re sult, for “mer e distrac tions

are not sufficie nt to preve nt application of the open and obvious dang er doctrine.” Id. at 184 (citing Lugo , 629 N.W.2d at 389).
I nconsistent though these case s are , we believe that they point to reve rsal here

. First, unlike

a stair step—a specia l cate g ory in Michig an premises-liability law—a clea r spill on an airport floor i s n o t “t he ty

pe of ever

y day occur

renc e that people [reg ularly ] encounte r.” See Bertrand , 5 3 7 N.W.2d at 189. The dang er here is not, there fore , automatically open and obvious like the pothole in Lugo

. See W

atts v. Mich. Multi-King, Inc. , 804 N.W.2d 569, 573 (Mich. Ct. App. 2010) (“[W] e reje ct def endant’ s assertion that a w et floor in a re staurant is a c ommon every day hazard of w hich
customers are expected to be awa re, making it always open and obvious reg ardle ss of its visibil ity .”). The question, then, is whether “an aver ag e user with ordinary intelligenc e [would] have been able to discover the dang er and the risk prese nted upon casua l inspection.” Novotney , 499 N.W.2d

at 381. This inquiry , put dif fer ently , asks whether it is “re asonable to expect that the invitee would discover the dang er? ” Ibid. Her e, Matteson and Minton walked toward eac h other; neither saw the substance befor e Matteson slipped. Meiners and McGrath walked just behind Matteson; neither saw - 9 -No. 11-1679

Matteson v. Northwest Airlines, Inc. the substance befor e Matteson slipped. And while all of the witnesses wer e able to see the substance afte r Matteson fell, it is not c lear whether they could see the substance only because Matteson had dis t urbed, and called attention to, the spill by stepping in it, or beca use the substance was indeed easily visible. Cf. Kennedy , 737 N.W.2d at 182 (quoting plaintiff’s testimony that “[i] t was no g rea t
my stery

. T h ere wer e g rape s on the floor”)

. McGrath’s testimony that the woman in a restaur ant uniform clea

ned an are a larg er than the are a that he believed the spill cover ed supports the view that the s ubst an ce wa s visible only beca use Matteson disturbed i t. The part of t he spi ll that McGrath 5

was surprised to see her clea n may have rema ined prac tically invisibl e, even though t h e p art that
Matteson stepped in was visible because she disturbed it whe n she slipped and fell. Be cause none of the four witnesses saw the substance befor e Matteson fell, and beca use it is not clea

r how much of the substa n ce wa s easily visible at the time of her fall, it is not clea r that an aver ag e person of ordinary intelligenc e trave rsing an airport terminal would have been able to discover the substance

on casua l inspection. There fore , g enuine issues of materia l fac t rema in. The district court err ed by
g ranting summary judgme nt to Northwe st. See, e.g. , W atts , 804 N.W.2d at 573 (re versing g rant of
summary dispositi on in favor of defe ndan t wher e “[d] efe ndant

. . . offe red no testimony or other

This point, of course, could also support Northwe st. I f t h e spill wer e larg er than just the 5 are a that McGra

th saw, Northwe st might arg ue, it would have been easie r for an ordinary user to see. Nor does the place ment of towels, without more, nece ssarily indicate the siz e of the spill, since one might cle an a spill by

placing paper

towels over a

n are a lar g er tha

n the spill itself. These, though, are jury arg uments. At this st ag e, we must draw all re asonable infere nces in Matteson’ s favor

. - 10 -No. 11-1679

Matteson v. Northwest Airlines, Inc. evidenc e to demonstrate that the floor was visibly , let alone obviously , wet at the time of plaintiff’s fall or that a

rea sonable pe rson would have observe d that condition on casua l observation”)

. 6
I V
Matteson has put forwa

rd enoug h evidenc e sug g esting that the substance was not open and obvious at the time of her accide nt that a rea sonable jury could find in her favor

. We REVERSE the judgme nt of the district court a nd REMAND for

further proce eding s consistent with this opi nion

Be cause we conclude that the spill was not open and obvious as a matter of law, we do not 6 addre ss the question whether the spill had any “spec ial aspec ts” that made it unusually dang erous. - 11 -