NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 05a0598n.06
Filed: July 14, 2005
No. 04-1978
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
MELVIN D. WILLIAMS, )
) ON APPEAL FROM THE
Plaintiff-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
v. ) DISTRICT OF MICHIGAN
)
TOYS “R” US, )
) OPINION
Defendant-Appellee. )
_______________________________________)
Before: MOORE, and COLE, Circuit Judges, and WISEMAN,* District Judge.
KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Melvin D. Williams
(“Williams”) appeals from the district court’s order granting summary judgment in favor of
Defendant-Appellee Toys “R” Us on Williams’s claims of liability for personal injury in this
diversity of citizenship action. Williams also contends that the district court erred in applying
Michigan law rather than Pennsylvania law. For the reasons stated below, we AFFIRM the district
court’s judgment.
I. BACKGROUND
On March 9, 2003, Williams visited a Toys “R” Us store in Monroeville, Pennsylvania with
his wife and two grandsons. The group browsed the aisles of the store and selected several toys
*
The Honorable Thomas A. Wiseman, United States District Judge for the Middle District
of Tennessee, sitting by designation.
which Williams told his grandchildren he would later purchase for them as birthday presents. Some
time after the presents had been selected, the group headed towards the store’s restrooms.
Williams’s grandchildren ran ahead, while Williams and his wife followed behind. Williams and
his wife then turned down an aisle which Williams thought would lead to the restrooms. After
turning down the aisle Williams realized that it was the incorrect aisle. Williams then started to
walk back out of the aisle. As he did so, Williams stepped on a skateboard that had been left on the
floor in the center of the aisle.1 The skateboard slid out from under Williams, causing him to fall
forward onto the floor. As a result of the fall, Williams fractured two ribs, broke a tooth, and injured
his mouth and right hand. Following the accident, Williams attempted to use a store telephone to
contact the store manager but was unable to contact him. Williams also informed two employees
of his fall before he left the store. Nine days later, Williams telephoned the store and reported the
accident to the store manager. An accident report was then completed by the store manager.
On March 28, 2003, Williams filed suit pro se against the defendant in district court.
Following the completion of discovery, the defendant filed a motion for summary judgment. A
magistrate judge held a hearing on the motion and ultimately recommended that the district court
grant the defendant’s motion for summary judgment. The district court agreed with the magistrate
judge’s recommendation and entered judgment in favor of the defendant. Williams then filed this
timely appeal.
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Williams’s description of the accident has changed during litigation. In his complaint,
Williams indicated that the accident occurred after he had turned around to exit the aisle. In his
deposition, however, Williams seemed to indicate that the accident occurred as he initially walked
down the aisle. It is unnecessary for us to determine which is the accurate version of Williams’s
accident as this factual discrepancy does not create a genuine issue of material fact. Under either
set of facts, the district court properly granted the defendant’s motion for summary judgment.
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II. ANALYSIS
A. Summary Judgment
We review de novo a grant of summary judgment. Barnhart v. Pickrel, Schaeffer & Ebeling
Co., 12 F.3d 1382, 1388 (6th Cir. 1993). Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party has the burden of
establishing that there are no genuine issues of material fact, which may be accomplished by
demonstrating that the nonmoving party lacks evidence to support an essential element of its case.
Barnhart, 12 F.3d at 1388-89 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
1. Invitor Liability Under Michigan Law
In order to establish a negligence claim, Michigan law requires a plaintiff to prove four
elements: (1) duty, (2) breach, (3) injury, and (4) proximate cause. Riddle v. McLouth Steel Prods.
Corp., 485 N.W.2d 676, 681 n.10 (Mich. 1992) (“The elements of a cause of action in negligence
are as follows: 1. That the defendant owed a legal duty to the plaintiff; 2. That the defendant
breached or violated the legal duty it owed to the plaintiff; 3. That the plaintiff suffered damages;
and 4. That the defendant's breach of duty was a proximate cause of the damages suffered by the
plaintiff.”). In this case the legal duty of care owed by Toys “R” Us to Williams is that which a
business owner owes a business invitee. That duty of care is only breached where a business owner
creates a dangerous condition, or where the business owner knew or should have known about the
unsafe condition’s existence. Whitmore v. Sears, Roebuck & Co., 279 N.W.2d 318, 321 (Mich. Ct.
App. 1979). Moreover, even if a business owner is aware of an unsafe condition, the owner has no
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duty to warn invitees of the condition’s existence if the condition is: (1) open and obvious; and (2)
not unreasonably dangerous. See Lugo v. Ameritech Corp., 629 N.W.2d 384, 386 (Mich. 2001)
(“[T]he general rule is that a premises possessor is not required to protect an invitee from open and
obvious dangers, but, if special aspects of a condition make even an open and obvious risk
unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to
protect invitees from that risk.”).
In this case, Williams argues that Toys “R” Us had actual or constructive knowledge of the
unsafe skateboard and that the condition was not open and obvious. Alternatively, Williams argues
that even if the skateboard’s existence was open and obvious, there was a special aspect of the
condition that made it so unreasonably dangerous that Toys “R” Us had a duty to protect him from
the condition. Because we agree with the district court that no genuine question of material fact
exists as to whether the skateboard’s existence in the aisle presented an open and obvious condition
or whether the condition was unreasonably dangerous, we conclude that the district court properly
granted summary judgment.
2. Open and Obvious Doctrine
As stated above, even if a business invitor knows or should know of a dangerous condition,
generally an invitor has no duty to warn an invitee of the condition if it is open and obvious. An
open and obvious danger is a danger that is visible, well-known, or discernible by casual inspection.
Glittenberg v. Doughboy Recreational Indus., 491 N.W.2d 208, 214 (Mich. 1992). Under Michigan
law, the test for whether a condition is open and obvious is objective, not subjective. Thus, we do
not ask whether the skateboard was open and obvious to Williams, but rather whether a reasonable
person would have discovered the danger on casual inspection. Novotney v. Burger King Corp., 499
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N.W.2d 379, 381 (Mich. Ct. App. 1993) (stating that “it is not relevant to the disposition of this
matter whether plaintiff actually saw the [condition]. Rather, it is necessary for plaintiffs, to have
their claim survive the motion for summary disposition, to come forth with sufficient evidence to
create a genuine issue of material fact that an ordinary user upon casual inspection could not have
discovered the existence of the [condition]”).
If a condition is such that an average person would have known of the condition’s existence,
then an invitee may recover from an invitor only “if special aspects of a condition make even an
open and obvious risk unreasonably dangerous.” Lugo, 629 N.W.2d at 386. A duty of care may
exist where a special aspect of the condition, such as its “character, location or surrounding
conditions,” indicates that the condition presents an unreasonable danger despite its open and
obvious nature. Bertrand v. Alan Ford, Inc., 537 N.W.2d 185, 189 (Mich. 1995) (internal quotation
marks and citation omitted). As the Michigan Supreme Court noted in Bertrand:
[I]f the particular activity or condition creates a risk of harm only because the invitee
does not discover the condition or realize its danger, then the open and obvious
doctrine will cut off liability if the invitee should have discovered the condition and
realized its danger. On the other hand, if the risk of harm remains unreasonable,
despite its obviousness or despite knowledge of it by the invitee, then the
circumstances may be such that the invitor is required to undertake reasonable
precautions.
Id. at 187.
Based on the evidence in this case, we are persuaded that Toys “R” Us did not breach its duty
of care because the skateboard was an open and obvious condition which was not unreasonably
dangerous to invitees. As the magistrate judge accurately noted: “A skateboard is an object of
considerable size. These devices are ubiquitous, and their propensity to roll easily under the weight
of a human body is patent.” Joint Appendix (“J.A.”) at 77-78 (Report and Recommendation at 10-
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11). Therefore, provided that the skateboard was in plain view, an ordinary person would be aware
that stepping onto the skateboard could cause that person to slip and fall. Moreover, Williams does
not provide evidence that the skateboard was not visible in the aisle of the store. Nor does Williams
show that the lighting in the store was inadequate or that other objects in the aisle prevented him
from observing the skateboard. On the contrary, Williams stated that the skateboard was in the
middle of the aisle and that he was able to see the skateboard after he fell. Williams also concedes
that there were no other toys on the floor in the vicinity of where he fell. Thus, the skateboard in
the aisle would appear to be an open and obvious condition that a reasonable invitee would notice
upon causal inspection.
Williams’s only additional arguments are that the store’s displays are designed to distract
the consumer’s attention from the floor and that the aisle was narrow. Neither of these arguments
is sufficient to create a genuine issue of material fact as to whether the condition was open and
obvious. First, there is nothing in the evidence to suggest that the aisle was too narrow to permit
Williams to avoid the skateboard if Williams had seen it prior to his fall. In fact, Williams’s wife
testified during her deposition that the aisle was wide enough to permit her and her husband to walk
down the aisle side by side. Moreover, the fact that the store contained attractive displays is
insufficient to create liability in this case. The defendant’s toy displays are precisely the reason why
consumers such as the plaintiff enter Toys “R” Us. Naturally, the defendant designs its displays to
attract the consumer’s attention as a means of marketing its products. This use of marketing tools
does not detract from the consumer’s duty to watch where he or she is going. Nor does it place a
duty upon the defendant to warn consumers like Williams of a skateboard in plain view. We
therefore conclude that the skateboard in this case was an open and obvious condition.
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Additionally, there is no special aspect which makes the skateboard so unreasonably
dangerous as to alter the defendant’s duty of care to Williams. As discussed above, nothing in the
record suggests that Williams’s view of the skateboard was obscured, that there were any other toys
in the aisle, or that there was insufficient lighting to allow an ordinary person to see the skateboard.
Nor was there anything unusual about the circumstances of Williams’s accident. In a toy store it is
unsurprising that a toy, such as a skateboard, would be taken off a shelf by a child or some other
store patron and left in the aisle. Such an occurrence is inevitable and is the very reason that the
ordinary consumer watches where he or she is going in places like toy stores.
Finally, there is no evidence that the accident was the result of the defendant’s negligence
or that the defendant knew or should have known of the skateboard’s existence prior to Williams’s
fall. In his deposition, Williams admitted that no employees were in the vicinity at the time of his
accident. Moreover, no evidence suggests that the skateboard had been in the aisle for a significant
period of time prior to Williams’s accident such that the defendant should have been aware of its
existence. Williams’s assertion that other skateboard accidents have occurred in other Toys “R” Us
stores around the country does not indicate that the defendant should have known of the skateboard’s
existence on the floor in this incident. As the magistrate judge correctly noted in this case,
“[k]nowledge of previous accidents, in other stores, does nothing to give notice of a stray skateboard
in defendant’s Monroeville store at any particular time.” J.A. at 80 (Report and Recommendation
at 13). Thus, Williams has presented no evidence indicating that there were any special aspects of
the condition in this case that made the skateboard unreasonably dangerous. We therefore conclude
that no genuine issue of material fact exists as to whether the defendant breached the duty of care
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it owed to Williams as an invitee. Thus, the district court properly granted the defendant’s motion
for summary judgment.
B. Choice of Law
Williams’s final argument is that the district court improperly applied Michigan state law
in this case. Because the accident occurred in Pennsylvania, he claims that Pennsylvania tort law
should apply. The district court rejected Williams’s argument on the grounds that it was likely that
Michigan law applied. Alternatively, the district court indicated that it was immaterial whether
Pennsylvania or Michigan law applied, as both states employed the open and obvious doctrine. The
district court also noted that Williams had not raised the issue of the applicability of Pennsylvania
law until filing his objections to the magistrate judge’s report and that Williams had opposed Toys
“R” Us’s motion to transfer the case to Pennsylvania.
As a federal court sitting in diversity, we apply the choice-of-law provisions of the forum
state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Michigan’s choice-of-law
rule provides that there is a presumption that Michigan law applies to a case unless there is a rational
reason to displace it. Sutherland v. Kennington Truck Serv., Ltd., 562 N.W.2d 466, 471 (Mich.
1997). The Michigan Supreme Court noted in Sutherland: “In determining whether a rational
reason to displace Michigan law exists, we undertake a two-step analysis. First, we must determine
if any foreign state has an interest in having its law applied. If no state has such an interest, the
presumption that Michigan law will apply cannot be overcome. If a foreign state does have an
interest in having its law applied, we must then determine if Michigan’s interests mandate that
Michigan law be applied, despite the foreign interests.” Id. Under this standard, Michigan courts
will “use another state’s law where the other state has a significant interest and Michigan has only
8
a minimal interest in the matter.” Hall v. Gen. Motors Corp., 582 N.W.2d 866, 868 (Mich. Ct. App.
1998).
In this case, Pennsylvania may have an interest in having its law applied because the accident
occurred there. Pennsylvania’s interest, however, does not outweigh Michigan’s competing interest
in protecting its residents from injury and providing just compensation to its citizens. More
importantly, the interests of both states are met by applying Michigan law because Michigan and
Pennsylvania tort law would deal with this case in a nearly identical manner. Both states incorporate
the open and obvious doctrine and thus bar recovery if a dangerous condition would have been
recognized by a reasonable invitee. See Novotney, 499 N.W.2d at 381; Carrender v. Fitterer, 469
A.2d 120, 125 (Pa. 1983). Because there is no conflict of laws (indeed this is a false conflict
situation), we therefore conclude that the district court did not err in applying Michigan state law
in this case.
III. CONCLUSION
For the reasons stated above, we AFFIRM the district court’s judgment.
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