By Lee Dryden
BridgeTower Media Newswires
DETROIT-Plaintiffs rarely prevail in slip-and fall cases in Michigan courts and the result was no different in federal court.
In Lapczynski v. Walmart Stores, a U.S. Sixth Circuit Court of Appeals panel affirmed the U.S. District Court for the Eastern District of Michigan which concluded that Walmart had no duty to protect the plaintiff from a risk that was open and obvious.
Robert Lapczynski sued in state court after falling in the store. Walmart removed the case to federal court on the basis of diversity of citizenship jurisdiction.
The Jan. 22 unpublished Sixth Circuit opinion was written by Judge Julia Smith Gibbons, joined by Judges Martha Craig Daughtrey and Richard Allen Griffin.
The case
On a slushy winter day on Jan. 13, 2016, the 77-year-old plaintiff walked through a wet parking lot into a Walmart in Alpena. He noticed two rugs saturated in water.
"Lapczynski walked through the first rug, splashing as he went, and then tried to dry his shoes on the driest part of the second rug," the opinion stated. "He then turned right, and began walking toward the pharmacy, which is located right around the corner from the store entrance. When Lapczynski was within a few feet of the pharmacy counter, he 'went down, just like a ton of bricks,' fracturing his ankle.
"Lapczynski attributed his fall to water on the floor. Although he did not see any puddles, Lapczynski thought that it was likely, given the inclement weather, that customers tracked in slush from outside."
The store had two orange caution cones to warn customers of potentially wet floors.
"The first cone was near the doorway at the store's entrance. Because it was partially obstructed by an advertisement and a crate, however, the cone would have been unlikely to catch a customer's attention unless he turned around and looked toward the doorway after entering. The second cone was near the pharmacy counter. It would have been viewable upon walking into the store, turning right, and rounding the pharmacy counter's corner, as Lapczynski did," the opinion stated.
The complaint filed about a year after the incident included a single count of negligence, alleging that Walmart breached its "duty to maintain its premises in a reasonably safe condition for patrons and business invitees such as Plaintiff." He sought between $175,000 and $300,000.
The district court dismissed the case, holding that "the risk of slipping on water in the pharmacy area would have been open and obvious to a reasonable person" and that there was "no genuine issue of fact regarding whether the wet floor in Walmart was open and obvious."
On appeal, Lapczynski argued that the risk of slipping on water in Walmart was not open and obvious as a matter of law.
Sixth Circuit analysis
The Sixth Circuit held that the risk of slipping was open and obvious under Michigan's premises liability law.
"A reasonably prudent person would have foreseen the risk of slipping inside the store," the opinion stated, pointing out that the fall occurred just a dozen or so steps from the doorway. "And as Walmart is a large store that has a high volume of foot traffic, it is reasonable to expect that on a particularly wet day, customers track water inside on their shoes."
The opinion cited the rugs as a warning sign of conditions that would potentially cause him to fall as the first rug was soaked and he used the second to attempt to dry his shoes.
The caution cones also were cited in the opinion as suggesting the risk was open and obvious, despite questions over the obstructed view of the first cone and the second not being visible until turning the corner toward the pharmacy.
The opinion acknowledged that some facts are unresolved or ambiguous such as "whether the water was tracked in by Lapczynski or other customers, whether there were heaters or fans on, whether Lapczynski noticed the orange caution cones, and whether it was actually snowing or raining at the time of the fall."
"But to grant a motion for summary judgment, not every fact need be resolved," the opinion stated. "Thus, even drawing all reasonable inferences in favor of Lapczynski, given that it was a wet, slushy day, that there were saturated mats at the front of the store, that Lapczynski used one of the mats specifically to try to wipe water off of his shoes, and that there was at least one plainly visible caution cone which a reasonable person would have noticed, the evidence is sufficient to find that the risk of slipping was open and obvious as a matter of law, and the remaining unresolved facts are immaterial."
The case does not fall into the special aspects exception to the open and obvious doctrine, the opinion stated.
"The danger of slipping on water inside a store is hardly comparable to the danger of falling into a 'thirty foot deep pit in the middle of a parking lot.' And there is a 'sensible reason' for the water hazard in Lapczynski's case: it was a slushy, wintry day in Michigan."
Published: Fri, Mar 08, 2019
