Lela Tompkins v. Crown Corr, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0218p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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12-1857
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Nos. 12-1857/1928
LELA TOMPKINS,
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Plaintiff-Appellant,

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v.
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CROWN CORR, INC.; DETROIT METROPOLITAN

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AIRPORT, d/b/a Wayne County Airport
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Authority, NORTHWEST AIRLINES; HUNT
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CONSTRUCTION GROUP, INC.; KIMCO
CORPORATION, -
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Defendants-Appellees.
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12-1928
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LELA TOMPKINS,

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Plaintiff-Appellee,
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v. -
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NORTHWEST AIRLINES,
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Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 2:10-cv-10413—Bernard A. Friedman, District Judge.
Argued: June 19, 2013
Decided and Filed: August 9, 2013
Before: KEITH, CLAY, and KETHLEDGE, Circuit Judges.

1
Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 2

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COUNSEL

ARGUED: Rick J. Patterson, POTTER, DeAGOSTINO, O’DEA & PATTERSON,
Auburn Hills, Michigan, for Appellant Lela Tompkins in 12-1857 and Appellee Lela
Tompkins in 12-1928. Fred J. Fresard, DYKEMA GOSSETT PLLC, Bloomfield Hills,
Michigan, for Appellee Detroit Metropolitan Airport in 12-1857 and Appellant
Northwest Airlines in 12-1928. Jason R. Mathers, HARVEY KRUSE P.C., Troy,
Michigan, for Appellee Crown Corr in 12-1857. Karen E. Beach, PLUNKETT
COONEY, Bloomfield Hills, Michigan, for Appellee Hunt in 12-1857. Thomas M.
Douglas, LAW OFFICES OF CATHERINE A. GOFRANK, Troy, Michigan, for
Appellee Kimco in 12-1857. ON BRIEF: Rick J. Patterson, Steven M. Potter, Gregory
M. Janks, POTTER, DEAGOSTINO, O’DEA & PATTERSON, Auburn Hills,
Michigan, for Appellant in 12-1857 and Appellee in 12-1928. Fred J. Fresard,
DYKEMA GOSSETT PLLC, Bloomfield Hills, Michigan, Timothy M. Kuhn,
DYKEMA GOSSETT PLLC, Detroit, Michigan, for Appellee Detroit Metropolitan
Airport in 12-1857 and Appellant Northwest Airlines in 12-1928. Jason R. Mathers,
HARVEY KRUSE P.C., Troy, Michigan, for Appellee Crown Corr in 12-1857. Karen
E. Beach, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellee Hunt in 12-
1857. Thomas M. Douglas, LAW OFFICES OF CATHERINE A. GOFRANK, Troy,
Michigan, for Appellee Kimco in 12-1857.

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OPINION
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CLAY, Circuit Judge. Plaintiff Lela Tompkins (“Tompkins”) slipped and fell
at Detroit Metropolitan Airport (“DTW”). She filed suit in state court against Northwest
Airlines (“Northwest”) and the Wayne County Airport Authority (“WCAA”), alleging
that they breached their statutory duty to repair and maintain the terminal. Plaintiff also
sued Kimco, the company that provided janitorial services to the terminal. Her claims
against the WCAA were for liability under the public building exception to the
Governmental Tort Liability Act, Mich. Comp. Laws § 691.1406, while her claims
against Northwest and Kimco were based on theories of failure to inspect and maintain
the premises. Defendants Northwest and the WCAA filed a third-party complaint
against Hunt Construction Group (“Hunt”) and Crown Corr (“Crown”), contractors
involved in the construction and maintenance of the airport terminal. After a
Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 3

complicated procedural history, in which the case was removed to federal court,
remanded, and then removed again, all Defendants filed motions for summary judgment.
The district court granted the motions made by Hunt and Crown, denied Northwest’s
motion on procedural grounds, granted WCAA’s motion, and finally, granted Kimco’s
motion. Plaintiff’s suit against Northwest proceeded to trial, where a jury found in her
favor, but awarded only $3,198.80 in damages, of which only $1,439.46 was attributable
to Northwest.

Plaintiff now appeals the award of summary judgment to Hunt, Crown, WCAA,
and Kimco. She also appeals the district court’s denial of her motion for a new trial.1
Northwest appeals the district court’s denial of its motion for summary judgment, as well
as the court’s denial of its motion for a directed verdict. For the reasons set forth in this
opinion, we AFFIRM the judgments of the district court.

BACKGROUND

A. Facts

Plaintiff Lela Tompkins was injured when she slipped and fell at McNamara
Terminal (“McNamara”) in Detroit Metropolitan Airport on December 29, 2005. She
sued Northwest Airlines, whom she alleges had possession and control of McNamara at
the time of the incident. The instant appeal addresses several claims related to that
underlying lawsuit.

First, Plaintiff alleges that the Wayne County Airport Authority, which owns
DTW, breached its statutory duty to repair and maintain McNamara. Next, she alleges
that Kimco, who provided janitorial services at McNamara, was negligent in its
“policing” of the premises. Finally, Plaintiff alleges that Crown and Hunt were negligent
in their installation and repair of a leaky roof at McNamara.

1
Plaintiff’s notice of appeal also included the district court’s denial of her motion for a directed
verdict with respect to Crown and Hunt, but she does not pursue this claim before this Court.
Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 4

Plaintiff sustained injuries to her right elbow, ankle, knee, and back when she
slipped near the escalators that lead to the tram station at McNamara. The alleged cause
of the fall was a large puddle of water on the floor near the down escalator. Plaintiff
went to the Oakwood Hospital emergency room, where she was treated for pain to her
neck, lower back, arm, and hip. After returning to her home in West Palm Beach,
Florida, Plaintiff sought treatment with a chiropractor in January 2006. When that
treatment failed to relieve her pain, her chiropractor referred her to an orthopedist on
January 20, 2006. Over the course of the next few months, Plaintiff underwent several
surgeries and various procedures, but has remained in serious pain, and must use
“orthopedic support devices,” such as a back brace and cane. Plaintiff is uninsured, and
claims outstanding medical bills of nearly $600,000.

McNamara Terminal opened to the public in February 2002. The terminal is part
of Detroit Metropolitan Airport, which is itself owned and administered by the WCAA.
WCAA entered into a lease with Northwest Airlines. Under the terms of the lease,
WCAA remained ultimately responsible for the maintenance and operation of the
terminal, but Northwest actually conducted maintenance and repairs as an agent of the
WCAA. From 2002 until 2008, when Northwest merged with Delta Airlines,2
Northwest was the sole tenant and had possession and control of McNamara. During the
first year of operations at McNamara there were issues involving leaks from the roof
near the tram area. Northwest attempted to get these issues resolved under its warranty
with Crown rather than by hiring another outside contractor.

Defendant Hunt was the general contractor during the building of McNamara.
Hunt was contractually obligated to maintain personnel on-site for three years following
the construction to address ongoing issues and warranty items. Kimco was the
contractor for housekeeping and cleaning at the terminal. Its contract required it to deal
with moisture on the floor of the terminal. Crown was the roofing company that
installed the roof during construction, and which was responsible for roofing repairs.

2
Northwest continued to operate under its own name until the completion of the merger in
January 2010.
Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 5

Immediately after the terminal opened, there were problems with leaks in the roof.
Crown made repeated repairs under the terms of its warranty with Northwest. The leaks
were allegedly caused by a failed lap joint that made the roof vulnerable to rain.

On December 29, 2005, while in transit from Phoenix, Arizona to her home in
West Palm Beach, Florida, Plaintiff had a scheduled lay-over at DTW. After taking the
escalator up to the tram station, she slipped and fell in a puddle, causing injuries to her
arms, legs, and back. Gwendolyn Chmiel, who would later testify at trial, went to assist
Plaintiff. Chmiel testified that she could not see the puddle until she was four or five
feet away. Plaintiff was then taken to the hospital, where X-rays did not reveal any
severe injuries. As noted above, she also received treatment in Florida. She then filed
suit in Michigan state court.

B. Procedural History

Plaintiff filed suit against Northwest, WCAA, and Kimco in December 2005 in
Wayne County Circuit Court. WCAA and Northwest then filed third-party complaints
against Hunt and Crown. Crown initially removed the case to federal court, but later
withdrew that removal, and the case was remanded to state court.

In state court, Hunt and Crown filed motions for summary judgment, arguing that
the claims against them were barred by Michigan’s statute of repose, Mich. Comp. Laws
§ 600.5839, which exempts contractors from liability in some actions after a period of
time. Those motions were granted. Northwest moved the court for summary judgment,
arguing that the negligence claims were time-barred based on the contract of carriage
between it and Plaintiff. That motion was denied. WCAA and Northwest then filed
notices against Hunt and Crown alleging non-party fault, and Plaintiff filed an amended
complaint listing Hunt and Crown as defendants. Crown then removed the case to the
United States District Court for the Eastern District of Michigan.

All Defendants moved the district court for summary judgment at the close of
discovery. The court denied Northwest’s motion, finding that 28 U.S.C. § 1450 and
Federal Rule of Civil Procedure 60(b) precluded it. The court granted the other motions
Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 6

on the merits.3 The court thus allowed Plaintiff to proceed to trial against Northwest.
On March 29, 2012, a jury returned a verdict in favor of Plaintiff against Northwest, and
apportioned fault as: 45% to Northwest, 30% to (non-party to the trial) Crown, and 25%
to Plaintiff. The jury awarded Plaintiff $3,198.80, which was the Plaintiff’s cost of
treatment in Michigan, and the court entered a judgment awarding $1,439.46 in damages
to Plaintiff from Northwest.

Plaintiff now appeals the denial of her motion for a new trial pursuant to Federal
Rule of Civil Procedure 59, as well as the grants of summary judgment to WCAA,
Kimco, Crown, and Hunt. Northwest appeals the district court’s denials of its motions
for summary judgment and a directed verdict.

DISCUSSION

I. Plaintiff’s Motion for a New Trial

A. Standard of Review

Following a jury trial, a party may move for a new trial pursuant to Federal Rule
of Civil Procedure 59. When a court refuses to grant such a motion, this Court reviews
that decision for abuse of discretion. Mike’s Train House, Inc. v. Lionel, LLC, 472 F.3d
398, 405 (6th Cir. 2006); In re Brown, 342 F.3d 620, 627 (6th Cir. 2003). “[This Court]
‘will find an abuse of discretion only when the Court has a definite and firm conviction
that the trial court committed a clear error of judgment.’” Mike’s Train House, 472 F.3d
at 405 (quoting Engebretsen v. Fairchild Aircraft Corp., 21 F.3d 721, 728 (6th Cir.
1994)).

B. Analysis

Federal Rule of Civil Procedure 59 states that a court may “grant a new trial on
all or some of the issues . . . after a jury trial, for any reason for which a new trial has
heretofore been granted in an action at law in federal court.” Fed. R. Civ. P. 59(a). This

3
The reasoning of the court for each of these motions is addressed below.
Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 7

has historically required a court to find that “a jury has reached a seriously erroneous
result as evidenced by: (1) the verdict being against the weight of the evidence; (2) the
damages being excessive; or (3) the trial being unfair to the moving party in some
fashion, i.e., the proceedings being influenced by prejudice or bias.” Holmes v. City of
Massillon, Ohio, 78 F.3d 1041, 1045–46 (6th Cir. 1996) (internal quotation marks
omitted) (citing Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940)). In the
instant case, Plaintiff alleges that Defense counsel engaged in persistent misconduct, by
repeatedly referring to the “south Florida litigation machine.” (Pl.’s Br. at 21.) These
references, Plaintiff claims, led the jury to only award her damages for medical costs
incurred in Michigan. Plaintiff further claims that the jury’s verdict on damages was
against the weight of the evidence.

1. Alleged Misconduct

In order for a party to prevail on an appeal of a district court’s denial of a Rule
59 motion based on a theory of opposing counsel’s misconduct, that party must show
that the district court abused its discretion, and must make a “concrete showing” that the
conduct “consistently permeated” the trial such that the party was unfairly prejudiced by
the misconduct. Sutkiewicz v. Monroe Cnty. Sheriff, 110 F. 3d 352, 361 (6th Cir. 1997).
To determine whether there is a reasonable probability that the conduct affected the
verdict, an appellate court must examine “the totality of the circumstances, including the
nature of the comments, their frequency, their possible relevancy to the real issues before
the jury, the manner in which the parties and the court treated the comments, the strength
of the case . . . and the verdict itself.” City of Cleveland v. Peter Kiewit Sons’ Co., 624
F.2d 749, 756 (6th Cir. 1980). The power to set aside a verdict on the basis of
misconduct “should be sparingly exercised on appeal.” Farley v. Country Coach, Inc.,
403 F. App’x 973, 982 (6th Cir. 2010) (quoting Kiewit, 624 F.2d at 756) (internal
quotation marks omitted).

In this case, there is no significant evidence of such prejudice. First, the remarks
that Plaintiff complains of must be viewed against the entirety of the record. The
remarks were scattered and isolated. In addition, the remarks were not directed at
Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 8

creating “extraneous matters . . . or unrelated subjects,” id., but were directly tied to
Defendant’s attempt to discredit Plaintiff’s motives and proof of injury. For example,
in his opening statement, defense counsel made a statement regarding Plaintiff’s
solicitation of a lawyer prior to seeing a doctor. This statement was not objected to, and
was supported by later evidence. Furthermore, the claims that defense counsel made
were directed specifically to the measure of damages, as he alleged that the reason the
calculations were so high was a result of doctors attempting to get fees. As the damages
calculation was a key issue in the trial, it cannot be characterized as an extraneous
matter. In addition, evidence at trial suggested that the proceeds of the lawsuit would
benefit doctors, rather than Plaintiff. Even to the extent that this evidence was
prejudicial, it was fairly isolated, and when it was objected to, the court sustained the
objection and counsel moved on.

Plaintiff presents no direct evidence as to how these remarks prejudiced the jury.
The jury returned a verdict in favor of Plaintiff; the primary reason for appealing appears
to be dissatisfaction with the damages award. Finally, the strongest argument for
prejudice is that an exhibit list was inadvertently given to the jury. While deliberating,
the jury asked to see exhibits that had not been introduced at trial. The court realized
that defense counsel had included a list of all of its exhibits with the list of actually
introduced evidence. The jury never saw the other exhibits, and a curative instruction
was given. The court found that this inclusion was an accident, and used the very strong
curative instruction that Plaintiff requested. The determination of whether or not a jury
was in fact prejudiced is usually left to the discretion of the district court, because the
district court has an advantageous viewpoint with which to decide that question relative
to an appellate court, which is dependent on the record alone. Balsley v. LFP, Inc., 691
F.3d 747, 761–62 (6th Cir. 2012) (quoting Kiewit, 624 F. 2d at 756).

In light of both this Court’s deferential review, and the totality of the
circumstances, including the jury’s verdict in favor of Plaintiff, there is no basis upon
which to disturb the district court’s decision not to grant a new trial.
Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 9

2. The Weight of the Evidence

When a party seeks to have a court set aside a verdict on the grounds of the
weight of the evidence, the court may only do so “if [the verdict] is against the clear
weight of the evidence as a whole.” In re Brown, 342 F.3d at 627 (6th Cir. 2003)
(internal quotation marks and citations omitted). Courts can only set aside the verdict
with respect to damages if the verdict could not have been reasonably reached. Bell v.
Johnson, 404 F.3d 997, 1003 (6th Cir. 2005); Acuity Mut. Ins. Co. v. Frye, 471 F. App’x
431, 435 (6th Cir. 2012) (“A trial court may not grant a new trial on the ground of
insufficient damages unless the jury verdict is one that could not reasonably have been
reached.”)

Plaintiff was the prevailing party at trial. Her claim for a new trial is based on
the damages calculation by the jury, which awarded her $3,198.80, the amount of
medical expenditure in Michigan. Without citing any cases, Plaintiff asserts that some
of the evidence could have been found to entitle her to a higher damages award. But that
is specifically the kind of judgment better left to the jury. At trial, there was evidence
presented as to Plaintiff’s treatments in Florida, as well as expert testimony based on
review of her medical records, which could have supported the conclusion that her
injuries were not severe, or that the injuries for which causation was proven were
adequately compensated by an award based on her care in Michigan. Even if Plaintiff
raised this issue directly, there is no clear error in the judgment. And because this issue
is presented as an appeal of a Rule 59 motion, this Court’s review is even more
deferential. Accordingly, Plaintiff’s challenge to the district court’s ruling is denied, and
the judgment affirmed.
Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 10

II. The District Court’s Award of Summary Judgment to Defendants WCAA,
Kimco, Crown, and Hunt

A. Standard of Review

A district court’s grant of summary judgment is reviewed de novo. Back v.
Nestle USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012) (citing Carter v. Univ. of Toledo,
349 F.3d 269, 272 (6th Cir. 2003)); Baggs v. Eagle-Picher Indus., 957 F.2d 268, 271
(6th Cir. 1992). Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a).4 This Court views all evidence in the light most
favorable to the nonmoving party, and draws all reasonable inferences in its favor.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Hoover v. Walsh, 682 F.3d 481, 492 (6th Cir. 2012) (citing Bazzi v. City of Dearborn,
658 F.3d 598, 602 (6th Cir. 2011)); Bletz v. Gribble, 641 F.3d 743, 757 (6th Cir. 2011)
(“In reviewing the district court’s decision, we view all facts in a light most favorable
to the non-moving party and draw inferences in favor of the non-movant.”).

However, “[o]n a motion for summary judgment, facts must be viewed in the
light most favorable to the nonmoving party only if there is a genuine dispute as to those
facts.” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550 U.S.
372, 380 (2007)) (internal quotation marks omitted). “[T]he mere existence of some
alleged factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment . . . .” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247–48 (1986) (emphasis in original). “The pivotal question is whether the
party bearing the burden of proof has presented a jury question as to each element of its
case.” Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986)).

4
Although this Court has jurisdiction of this case as a result of diversity of citizenship, 28 U.S.C.
§ 1332, and the applicable substantive law is therefore the state law of Michigan, see Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 79 (1938), a federal court sitting in diversity uses the federal standard for summary
judgment. See Gafford v. Gen. Elec. Co., 997 F.2d 150, 165 (6th Cir. 1993), abrogated on other grounds
by Hertz Corp. v. Friend, — U.S. —, 130 S. Ct. 110 (2009); accord Beat ex rel. Putnam v. Walgreen Co.,
408 F. App’x 898, 901 n.2 (6th Cir. 2010) (quoting Gafford, 997 F.2d at 165–66).
Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 11

B. Analysis

On appeal, Plaintiff challenges the grant of summary judgment to various
counter-parties. We address each of these challenges in turn.

1. Wayne County Airport Authority

WCAA moved the district court for summary judgment on Plaintiff’s claims
against it. The district court granted summary judgment to WCAA on October 12, 2011.
First, it found that under Michigan’s Governmental Tort Liability Act, Mich. Comp.
Laws § 691.1401 et seq., (“GTLA”), the WCAA was not immune from liability simply
because of its status as a governmental agency or instrumentality.

Under that act, governmental agencies are generally immune from tort liability
when engaged in a governmental function. Mich. Comp. Laws § 691.1407(1).
“Governmental function” is defined as “an activity that is expressly or impliedly
mandated or authorized by constitution, statute, local charter or ordinance, or other law,”
id. § 691.1401(b), and the construction and maintenance of an airport is specifically
listed as a governmental action elsewhere in the Michigan Compiled Laws. Mich. Comp.
Laws § 259.132 (“[T]he acquisition, establishment, construction, enlargement,
improvement, maintenance, equipment and operation of airports, landing fields and other
aeronautical facilities . . . are hereby declared to be public, governmental . . .
functions . . . . ”).

However, under the GTLA, there is a public building exception. This exception
requires governmental agencies “to repair and maintain public buildings under their
control.” Mich. Comp. Laws § 691.1406. The district court found that the WCAA fit
within this exception, and therefore the WCAA was not immune from tort liability as
owner of McNamara. But the court still granted summary judgment, finding that while
the government building exception exposed the WCAA to liability under the GTLA, the
nature of the claim shielded it from liability under the same act.

Under the GTLA, agencies operating government buildings, even when exempt
from immunity as a result of their ownership or control over the building, are granted
Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 12

immunity when the claim asserted is one of design defects. Renny v. Dep’t of Transp.,
734 N.W.2d 518, 527–28 (Mich. 2007) (“[T]o the extent that plaintiff’s claim is
premised on a design defect of a public building, it is barred by governmental
immunity.”). Accordingly, if Plaintiff’s claim against WCAA was based on a design
defect, then it is barred.

The district court found that Plaintiff’s claim against the WCAA was a design
defect claim, and therefore the WCAA was immune from liability. Specifically, it found
that there was no evidence that the roof was ever damaged; it leaked from the time of its
construction, and there was no evidence of any post-construction damage to the roof
between its construction and the Plaintiff’s injury. Citing Renny, the district court found
that the words “repair” and “maintain,” the terms preferred by Plaintiff in characterizing
her claim, would imply that the building had been restored to its original condition or put
into a sound condition, but that was not the best characterization of the facts. On appeal,
Plaintiff argues that under Tellin v. Forsyth Township, 806 N.W.2d 359 (Mich. Ct. App.
2011), her claim should be characterized as a repair or maintenance claim, rather than
as a design defect claim.

We agree with the district court. Plaintiff’s claims against the WCAA were
based on theories of design defects, and accordingly, are barred by Michigan’s
governmental immunity statute. In Tellin, the Michigan court stated that:

A design defect would appear to consist of a dangerous condition
inherent in the design itself, such as its characteristics, functioning, and
purpose. For example, the accumulation of the snow and ice on the
sidewalk in Renny was not from any malfunction of the roof or problem
with its construction, but was a natural effect of the characteristics of the
new roof design, which was not intended to divert melting snow and ice.

Id. at 367 (footnotes omitted). The court continued to say that, “[i]n contrast, a failure
to repair or maintain appears to consist of something caused by extrinsic circumstances,
such as a malfunction, deterioration, instability, or a fixture that is improperly secured
or otherwise improperly constructed or installed.” Id.
Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 13

In this case, there are no extrinsic circumstances that led to the dangerous
condition. The roof itself was improperly designed, and so water leaked into the
terminal. In addition, Plaintiff’s pleadings and the prior course of this litigation indicate
that her claim against WCAA was based on design defects. The acknowledged issue
with the leaks in the roof were not based on construction flaws, such as subpar materials
or incompetent workmanship, but were instead caused by a lap joint that was defectively
designed. This is directly analogous to the roof design issue in Renny. In addition, the
Michigan Supreme Court has instructed courts to construe exceptions to the GTLA
narrowly. Ross v. Consumers Power Co., 363 N.W.2d 641, 659–60 (1984) (per curiam),
overruled on other grounds by In re Bradley Estate, 2013 WL 3866538, — N.W.2d —,
(Mich. July 26, 2013)). Accordingly, WCAA is immune from Plaintiff’s claim based
on governmental immunity, and we affirm the judgment of the district court.

2. Kimco

Defendant Kimco moved the district court for summary judgment, arguing that
it did not owe Plaintiff any duty of care. The district court granted that motion on June
14, 2011, and Plaintiff now appeals. While we find that the district court’s legal analysis
was flawed, we affirm the grant of summary judgment on alternative grounds.

In January 2004, Johnson Controls, Inc. (“Johnson”), the company that managed
McNamara, hired Kimco to provide janitorial services. That contract was extended in
March 2005 to cover the part of the terminal in which Plaintiff was injured. Kimco’s
responsibilities included mopping the floors. While Kimco did not contest that Plaintiff
slipped because of an accumulation of water on the floor, Kimco claims that it did not
owe a duty to Plaintiff, because the scope of its duty was limited by its contract with
Johnson. The district court agreed with this position, and thus granted Kimco’s motion
for summary judgment. This analysis, however, was based on a misunderstanding of
Michigan’s tort law.

Under Michigan law, a claim of negligence has four elements: duty, breach,
damages, and causation, Hill v. Sears, Roebuck & Co., 822 N.W.2d 190, 195–96 (Mich.
Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 14

2012), and summary judgment is appropriate where a defendant can show that he owed
no duty to plaintiff. Smith v. Kowalski, 567 N.W.2d 463, 465 (Mich. Ct. App. 1997).
“A legal duty or obligation may arise by contract, statute, constitution, or common law.”
W. Am. Ins. Co. v. Meridian Mutual Ins. Co., 583 N.W.2d 548, 551 (Mich. Ct. App.
1998.) While Michigan case law makes it clear that one can owe a third party a duty of
care, see Hill, 822 N.W.2d at 207, a defendant is only liable in tort for failing to perform
under a contract when there is a violation of a duty “separate and distinct from the
contractual obligation.” Fultz v. Union-Commerce Assocs., 683 N.W.2d 587, 592 (2004)
(quoting Rinaldo’s Constr. Corp. v. Michigan Bell Tel. Co., 559 N.W.2d 647, 658 (Mich.
1997)) (internal quotation marks and citation omitted).

But “a contracting party’s assumption of contractual obligations does not
extinguish or limit separately existing common-law or statutory tort duties owed to
noncontracting third parties in the performance of the contract.” Loweke v. Ann Arbor
Ceiling & Partition Co., LLC, 809 N.W.2d 553, 555 (Mich. 2011) (clarifying Fultz). In
Loweke, the Michigan court found that:

[C]ourts should not permit the contents of the contract to obscure the
threshold question of whether any independent legal duty to the
noncontracting third party exists, the breach of which could result in tort
liability. Instead, in determining whether the action arises in tort, and
thus whether a separate and distinct duty independent of the contract
exists, the operative question under Fultz is whether the defendant owed
the plaintiff any legal duty that would support a cause of action in tort,
including those duties that are imposed by law.

Id. at 561 (vacating a decision of the lower court that ruled that a subcontractor was not
liable to a third party because of the Michigan Supreme Court’s decision in Fultz).

The district court’s decision was based on the understandable, although
erroneous, reading of Fultz—that no cause of action can exist when the harm is caused
by the subject of the contract—that the Loweke court corrected. Id. at 557 (“Since
Fultz . . . courts have erroneously interpreted this Court’s decisions as rejecting accepted
tort-law principles and creating a legal rule . . . which bars negligence causes of action
on the basis of a lack of duty if a . . . plaintiff alleges a hazard that was the subject of the
Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 15

defendant’s contractual obligations with another.”). Kimco was under a common-law
duty to perform its duties at the appropriate standard of care independent of its contract
with Johnson (although its contract with Johnson may have apportioned liability in a
particular way), and the district court erred in granting it summary judgment on those
grounds. Under the reading favored by the district court, Kimco could only ever face
liability for a breach of contract. But that is specifically the rule that Loweke disavowed,
and in any event, it is possible that Kimco could have simultaneously performed under
its contract while behaving in a negligent manner, which indicates that Kimco had an
independent duty to a foreseeable third party apart from its contractual duty to Johnson.
While the facts in this case closely resemble Fultz, where the Michigan Supreme Court
found that a company hired to clean snow from a parking lot could not be liable in tort
to a third party despite its negligent removal of the snow, because it had not created a
new hazard, in Loweke, the Michigan Supreme Court clarified the rule to state that “[a]
defendant—by performing an act under the contract—was not relieved of its preexisting
common-law duty to use ordinary care in order to avoid physical harm to foreseeable
persons and property in the execution of its undertakings.” Id. at 172. It is our
understanding, therefore, that Michigan law permits tort liability arising from physical
(and possibly other types of) harm to foreseeable third parties where there has been
negligent performance of a duty, even if the duty was based on their contractual
responsibility to another.

However, the district court’s error in interpreting Michigan law does not entirely
preclude summary judgment. This Court “may affirm [a grant of summary judgment]
on any grounds supported by the record.” Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d
356, 362 (6th Cir. 2012). Plaintiff has not presented sufficient evidence of negligence
on the part of Kimco. Based on the evidence proffered by Plaintiff, Kimco appears to
have satisfied its duty of care. Although Kimco’s argument that it was monitoring the
terminal, and thus could not have been negligent, is inapposite—the negligence could
have been failure to monitor effectively—Plaintiff has not produced enough evidence
to permit us to find that there was, in fact, negligence. At best, the evidence that
Plaintiff has raised suggests that it was likely that a Kimco employee was on the tram
Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 16

platform at some point after the leak started. But that does not mean that a Kimco
employee would have seen the leak but for possible negligence. Unlike the claim against
Northwest, where Plaintiff produced significant evidence that Northwest was aware of
leaking, and there was a question as to how appropriate its actions were to fix the leaks,
with respect to Kimco, Plaintiff has only produced evidence that suggests that Kimco
was diligent in its monitoring of leaks. Plaintiff needed to do more to survive summary
judgment; for example, Plaintiff might have shown actual knowledge of this leak, or that
Kimco’s monitoring was likely to miss leaks. In the instant case, Plaintiff failed to
produce sufficient evidence that Kimco had failed to do its job in order to create a
material dispute as to fact on this question. Accordingly, we affirm the district court’s
grant of summary judgment on this claim.

3. Crown Corr and Hunt Construction5

Plaintiff initially asserted claims against WCAA, Northwest, and Kimco in
Michigan state court in December 2008. Defendants WCAA and Northwest filed a
third-party complaint against Hunt and Crown in February 2009. The state court granted
Crown’s motion for summary judgment, and dismissed the third-party complaint against
both Crown and Hunt. That dismissal was not appealed. Northwest and WCAA moved
the court to file notices of non-party fault against Crown and Hunt, and that motion was
granted. On December 10, 2009, the state court granted Plaintiff’s motion to amend her
complaint to name Crown and Hunt as defendants. Plaintiff filed her amended complaint
on December 29, 2009. Crown was served with the amended complaint on January 7,
2010, and removed the case to federal court. Northwest and WCAA then filed their
cross-complaint against Crown and Hunt. The district court ruled that the cross-
complaints were barred by Michigan’s statute of repose, a decision which is not
appealed. Crown and Hunt argue that these claims are barred by both the doctrine of
full faith and credit, and that even if found valid under that doctrine, fail under the statute
of repose.

5
The district court initially granted these motions on the basis of timeliness, but after granting
Plaintiff’s motion for reconsideration, ruled that the claims were governed by the repose statute.
Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 17

First, we find that these claims should have been disposed of on the basis of the
state court’s earlier decision. “Under 28 U.S.C. § 1738, federal courts are required to
give the judgments of state courts the same preclusive effect as they are entitled to under
the laws of the state rendering the decision . . . ” Exec. Arts Studio, Inc. v. City of Grand
Rapids, 391 F.3d 783, 795 (6th Cir. 2004). Michigan takes “a broad approach to the
doctrine of res judicata, holding that it bars not only claims already litigated, but also
every claim arising from the same transaction that the parties, exercising reasonable
diligence, could have raised but did not.” Adair v. State, 680 N.W.2d 386, 396 (Mich.
2004).

The claims against Crown and Hunt are not identical to the claims in the third-
party complaint dismissed by the state court. However, as Plaintiff was a party to that
action, and had every opportunity to bring these causes of action in the state court, these
claims should have been dismissed as a matter of res judicata. And even without this
doctrine, Defendants were properly granted summary judgment by the district court.

Hunt was the general contractor hired to build McNamara. Hunt, in turn, hired
Crown to build the roof at McNamara. Crown completed its work and the terminal
became operational in February 2002. Crown’s contract to construct the roof included
a ten-year warranty, and it was occasionally called upon to perform work on the roof.
Until 2005, there were occasional repairs made on the roof.

Under Michigan’s statute of repose, absent gross negligence:

A person shall not maintain an action to recover damages for injury to
property, real or personal, or for bodily injury or wrongful death, arising
out of the defective or unsafe condition of an improvement to real
property, or an action for contribution or indemnity for damages
sustained as a result of such injury, against any state licensed architect or
professional engineer performing or furnishing the design or supervision
of construction of the improvement, or against any contractor making the
improvement, unless the action is commenced within either of the
following periods:
(a) Six years after the time of occupancy of the completed
improvement, use, or acceptance of the improvement
Mich. Comp. Laws § 600.5839.
Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 18

Plaintiff argued below that while the new roof constituted an “improvement,” the
later work (addressing leaks in the roof pursuant to the warranty) did not relate to the
improvement, but constituted repairs, which are not covered by the repose statute.
Crown and Hunt claim that the later work was a continuation of the original work. If
Defendants’ contention is correct, then as the terminal was “accepted” on February 24,
2002, Plaintiff was required to bring her claims prior to February 24, 2008.

The district court found that Crown and Hunt’s continued work related to the
original improvement. Plaintiff asserts that any work done after the occupation or
acceptance of the building cannot be considered a continuation of the work, and thus
cannot start the tolling period for the statute of repose. Plaintiff does not cite any cases
for this proposition. Defendants cite several cases, however, that show that even when
work has continued after the date of acceptance, the earlier date can still control for the
purposes of the statute of repose. See Beauregard-Bezou v. Pierce, 487 N.W.2d 792,
794(Mich. Ct. App. 1992).

To the extent that Plaintiff can show repairs, they were clearly within the scope
of the original contract, and thus a continuation of the work. See Travelers Ins. Co. v.
Guardian Alarm Co. of Michigan, 586 N.W.2d 760, 763–64 (Mich. Ct. App. 1998),
overruled on other grounds by Miller-Davis Co. v. Ahrens Const., Inc., 802 N.W.2d 33
(Mich. 2011), (“Here, the six-year limitation period began to run when Troy Design used
or accepted the alarm system . . . Although Guardian performed additional work on the
alarm system in June 1989, that work was incidental to the earlier installation of the
completed system.”); Male v. Mayotte, Crouse & D’Haene Architects, Inc., 413 N.W.2d
698, 700 (Mich. Ct. App. 1987) (state of repose began to run on date of acceptance, not
when repairs and installation finished). Accordingly, the district court correctly
dismissed Plaintiff’s claims against Crown and Hunt on the basis of the statute of repose.
Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 19

III. Northwest’s Motion for Summary Judgment

Northwest appeals the district court’s denial of its motion for summary judgment,
alleging that Plaintiff’s claim was time-barred because of the terms of the contract of
carriage between the Plaintiff and Defendant. Because this motion is barred by the
application of 28 U.S.C. § 1738, we affirm the judgment of the district court.

A. Standard of Review

While Northwest appeals the denial of summary judgment, a party may not
ordinarily appeal a denial of summary judgment after a full trial on the merits. Ortiz v.
Jordan, — U.S. —, 131 S. Ct. 884, 888–89 (2011); accord Kennedy v. City of
Cincinnati, 483 F. App’x 110, 111 (6th Cir. 2012). However, this Court has held that
“Ortiz leaves open the possibility that cases ‘involv[ing] . . . [only] disputes about the
substance and clarity of pre-existing law’ may still be considered . . . ” Nolfi v. Ohio
Kentucky Oil Corp., 675 F.3d 538, 545 (6th Cir. 2012) (quoting Ortiz, 131 S. Ct. at 892)
(alteration in original). Therefore, this Court may treat Northwest’s appeal as if it were
made under Rule 50, which is treated under the same standard as a motion for summary
judgment pursuant to Rule 56. Id. at 545.

B. Analysis

The district court denied Northwest’s motion for summary judgment on this basis
in a decision in February 2011. In that decision, the district court held that this issue had
been decided by the state court, and that Defendant’s challenge to that decision was
untimely. Accordingly, it could not revisit the decision pursuant to 28 U.S.C. § 1450.
Treating Northwest’s motion as a motion for relief under Federal Rule of Civil
Procedure 60(b), the district court found that the state court’s denial of the motion was
not a “manifest injustice,” and thus it would not revisit the claim as decided by the state
court.

The district court was correct to find that Northwest’s motion for reconsideration
of the state court order was untimely. The state court entered its judgment denying
summary judgment on time-bar grounds on September 3, 2009. The case was removed
Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 20

to federal court on January 29, 2010. When the case was removed, all existing orders
and decisions were federalized. See Semtek Intern. Inc. v. Lockheed Martin Corp., 531
U.S. 497, 508–09 (2001). The state court orders are thus treated as if they were the
orders of the district court. Under Local Rule 7.1(h)(1) of the Eastern District of
Michigan, a motion for reconsideration must be filed within fourteen days, and under the
Federal Rule of Civil Procedure 60(c), the motion must be made within “a reasonable
time.” Northwest filed its motion on December 16, 2010, more than a year after the state
court disposition was entered, and over ten months after the case had been removed to
federal court. Accordingly, the district court was correct to find that the motion was
untimely.

Even had the motion for reconsideration been timely, the issue at stake had been
disposed of by the state court, and Defendant is prevented from re-litigating the issue in
federal court. As noted above, Michigan gives a broad construction to preclusion
doctrines, and the mere assertion that the state court’s decision was erroneous does not
give rise to a claim in federal court.

Accordingly, we affirm the judgment of the district court.

IV. Northwest’s Motion for a Direct Verdict

Northwest argues that the district court should have awarded it a directed verdict6
because Northwest had no notice of the condition, and in the alternative, because the
puddle was open and obvious. We reject both claims.

A. Standard of Review

This Court reviews the denial of a motion for a directed verdict de novo. United
States v. Alpine Indus., Inc., 352 F.3d 1017, 1022 (6th Cir. 2003). “In diversity cases,
when a Rule 50 motion for judgment as a matter of law is based on a challenge to the
sufficiency of the evidence, this Court applies the standard of review used by the courts

6
Northwest originally brought this claim as a summary judgment issue, but now appeals
(appropriately) on directed verdict grounds.
Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 21

of the state whose substantive law governs the action.” Kusens v. Pascal Co., 448 F.3d
349, 360 (6th Cir. 2006); accord Betts v. Costco Wholesale Corp., 558 F.3d 461, 466
(6th Cir. 2009).7 In Michigan, the equivalent motion is reviewed de novo. Betts, 558
F.3d at 467. As with summary judgment, this Court must view all evidence in the light
most favorable to the non-moving party. Id.

B. Analysis

First, there was sufficient evidence for a jury to conclude that Northwest had
constructive notice of the condition. See Bowling v. Wal-Mart Stores, Inc., 233 F. App’x
460, 468 (6th Cir. 2007) (finding no notice). While Northwest asserts that Bowling is
directly on point, in Bowling, the issue was about a single leak. This Court support the
district court’s finding that nothing in that case indicated “that Defendant’s employees
had neglected to make regular inspections, or that such leaks recurred with sufficient
frequency to place Defendant on constructive notice of the existence of the puddle.” Id.
at 467. In this case, leaks were frequent; in fact, much of Northwest’s defense was based
on the existence of leaks going back to the opening of the terminal. See also Herteg v.
Somerset Collection GP, Inc., 2002 WL 31105000, at *5 (Mich. Ct. App. Sept. 20, 2002)
(“We believe that it is reasonable to infer from this evidence that given the advance
warning of leaking problems, the mall’s failure to inspect and maintain this area
constituted active negligence that caused the dangerous condition, i.e., the puddle of
water”). Accordingly, a reasonable jury could have concluded that regardless of the
specific puddle, Northwest was aware of the potential for leaks, and should have taken
more care to prevent them. Furthermore, this was an appropriate question for a jury to
resolve. See, e.g., Clark v. Kmart Corp., 634 N.W.2d 347, 348–49 (Mich. 2001) (“This
case squarely presents the question whether the evidence would permit a jury to find that
the dangerous condition was present long enough that the defendant should have known
of it.”).

7
While Northwest does not refer to its claim as a challenge based on the sufficiency of the
evidence, its arguments address questions of sufficiency because they are directed at what a reasonable
juror could have found based on the evidence presented.
Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 22

Northwest next claims that the condition was “open and obvious,” which would
preclude liability on a negligence theory. “[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. However, this duty does not
generally encompass removal of open and obvious dangers.” Lugo v. Ameritech Corp.,
Inc., 629 N.W.2d 384, 386 (Mich. 2001) (internal citation omitted). Whether a hazard
is open and obvious is measured against an objective standard of reasonability.
Novotney v. Burger King Corp., 499 N.W.2d 379, 381 (Mich. Ct. App. 1993).

The jury heard testimony from Plaintiff that she was paying attention, but did not
see the puddle because the floor was glossy. Another witness testified that as she walked
over to assist Plaintiff after she fell, she did not see the water until she was very close
to it. Finally, a third witness, who had helped install the flooring at the terminal testified
that the floor had a gloss finish that would make it hard to see the water because the floor
had the same appearance regardless of whether it was wet or dry. Based on this
testimony, a jury could reasonably have found that the hazard was not open or obvious.
Furthermore, in a recent case, this Court has held that a spill at DTW was not open or
obvious as a matter of law. Matteson v. Northwest Airlines, Inc., 495 F. App’x 689,
693–94 (6th Cir. 2012) (reversing district court’s grant of summary judgment to
defendant and finding a genuine dispute as to material issue on this precise question).
Therefore, this question was a matter of fact, which the jury resolved in favor of
Plaintiff, and will not be reversed by this Court.

Accordingly, the district court’s refusal to grant a directed verdict is affirmed.

CONCLUSION

For the foregoing reasons, we AFFIRM the judgments of the district court.