DEFENDANT S CASE EVALUATION SUMMARY INTRODUCTION Plaintiff, *** fell in the entryway of the *** on ***, allegedly injuring her shoulder and knee. Plaintiff believes that she lost consciousness and cannot recall or describe the mechanics of her fall. She assumes that she slipped on water because there was some in the vestibule on a January day in Michigan. She has no idea how long the water was in the vestibule or if *** had notice of it. She cannot prove liability through speculation and conjecture. STATEMENT OF FACTS The ** year-old Plaintiff walked into the *** Store around ***. She regularly shopped at the store. She testified that fell after taking four or five steps into the vestibule after entering the first door near the grocery entrance. She fell on a rubber mat that was on the vestibule floor. She did not see anything before she fell, but assumed that she fell on water because her clothes were wet. She candidly testified that she had no recollection of the mechanics of her fall: Q. Do you remember the fall at all? A. I don t remember the fall. I remember that the next think I knew I was laying on my back and had somebody pulling me into an upright position saying, We ll help you. She assumed that she did not stumble or trip because, I would have remembered that (Exhibit A. In the same vein, Plaintiff presumably would also have remembered if her foot slipped before she fell. Notably, Plaintiff s knees have historically gone out for no reason as she walked. Plaintiff testified that her pants and coat were wet. Still, she admitted that she didn t know how long the water was on the floor or if it was known to *** employees before she fell: Q. Did you see anything on the floor before you fell? A. No, nothing that was apparent to me at the time. Q. Your Complaint indicates there was presence of water in the vestibule area?
A. There wasn t visible water when I walked in. I know there was water because however long I laid there my pants and my coat were very wet and cold. This is after I fell, when I came to. Q. Do you know where the water came from? Q. Do you know how long it had been there? Q. Do you know whether any employee of *** knew the water was there? Q. Do you know whether any employee of *** caused the water to be on the floor? A. I have no idea what happened. I m not a *** employee. (Exhibit A). The *** greeter and another employee helped Plaintiff to stand then helped her walk into the store to a nearby bench. The responding employees prepared a Customer Accident Report (Exhibit B). *** did not create or have notice of a dangerous condition. ARGUMENT I. PLAINTIFF CANNOT PROVE PRIMA FACIE NEGLIGENCE M Civ JI 19.03 details the duty *** owed to Plaintiff: A possessor has a duty to use ordinary care to protect an invitee from risks of harm from a condition on the possessor's place of business if: 1. the risk of harm is unreasonable, and 2. the possessor knows or in the exercise of ordinary care should know of the condition, and should realize that it involves an unreasonable risk of harm to an invitee. A premises owner generally owes a duty to exercise reasonable care for the protection of its customers. The premises owner is not an insurer of the safety of invitees. Williams v Cunningham Dr.ug Stores, Inc., 429 Mich 495, 500; 418 NW2d 381 (1988). Plaintiff cannot prove that the risk of harm associated with water on a rubber mat on a January afternoon in
Michigan was unreasonable and that *** knew it presented an unreasonable risk to invitees. To the contrary, the Court of Appeals recognized that the type of injuries sustained in a slip and fall are not generally classified as unreasonably dangerous and do not pose a risk of death or serious bodily harm. Sharp v Art Van Furniture, Docket No 267810 (Mich App 2006) (Exhibit C). In Sharp, supra, the plaintiff fell in the entryway of an Art Van store on a January afternoon. The Court found: In this case, the minimal amount of water in the entryway of the furniture store was not unavoidable and did not pose an unreasonable risk of severe injury. The types of injuries sustained in a slip and fall are not generally classified as unreasonably dangerous. Furthermore, wet store entryways during the winter are a common everyday occurrence in Michigan, and everyday occurrences are not generally dangerous conditions that pose an unreasonable risk of harm. Therefore, reasonable minds could not differ that the small amount of water in the entryway did not pose an unreasonable risk of harm, or that an average person could avoid an area with a small amount of water accumulation. Id. at 2-3. Here too, the water in the *** vestibule on that January afternoon did not pose an unreasonable risk of harm. A. PLAINTIFF CANNOT PROVE THAT *** HAD NOTICE OF THE WATER Plaintiff must prove that the unsafe condition was either caused by the active negligence of the defendant, that the unsafe condition was known to the defendant, or that it was of such a character or had existed a sufficient length of time that he should have had knowledge of it. Berryman v K-Mart Corp., 193 Mich App 88; 483 NW2d 642 (1992). The mere existence of a defect without proof of notice by the invitor does not, as a matter of law, render the invitor liable to an invitee for an injury caused by the condition. Serinto v Borman Food Stores, 380 Mich 637, 640-641; 158 NW2d 485 (1968); Berryman, supra at 92. Furthermore, unsupported
speculation regarding how long the condition existed is insufficient to create a question of fact. Skinner v Square D Co., 445 Mich 1563; 516 NW2d 475 (1994); McCune v ***, Inc., 156 Mich App 561, 563; 402 NW2d 6 (1986). Here, there is no evidence that *** had actual or constructive notice of the water in the vestibule. Plaintiff admitted that she did not know if the alleged hazard was caused by a *** employee. She didn t know how long the water had been on the rubber mat before she fell, or if *** knew it was on the mat (Exhibit A). Plaintiff cannot establish prima facie negligence through speculation and conjecture. DAMAGES Plaintiff s medical history is positive for degenerative arthritis in her shoulders, neck, back, knees and feet; breast reduction surgery, arthroscopic surgery on both knees, carpal tunnel surgery on both wrists, and a right rotator cuff repair. She had surgery for a torn left rotator cuff two months after the incident. The operative report revealed degenerative changes similar to those present in her right shoulder on which she had surgery for a torn rotator cuff several years before this incident. Contrary to Plaintiff s sworn testimony, her medical records show that Plaintiff complained of pain in her left shoulder similar to that in her right shoulder as early as 2002. X-rays taken at that time revealed arthritis in her left shoulder. In 2005, more than four years before this incident, she complained of marked left shoulder tenderness which was aggravated by her bra strap. She testified to the same bra-strap irritations, but now attributes her complaints to her *** fall. 2005 studies revealed marked AC joint arthritis, more severe on the left than right. (Exhibit D; Exhibit E,; Exhibit A). Dr. *** performed the rotator cuff surgery. He prescribed physical therapy after the surgery. His records show that she was doing active strengthening and range of motion which
was contrary to his post-surgical recommendations. In fact, two months after the surgery, Dr. *** suspected a possible recurrent tear caused by the aggressive physical therapy (Exhibit C). Dr. ***, an orthopedic surgeon, concluded that Plaintiff s long-standing knee problems were not related to this fall. She did not seek treatment for complaints of right knee pain until a year and a half after her fall. She was again diagnosed with arthritic knees and treated with steroid injections. She first had the same injections in her right knee in 2001 (Exhibit E; Exhibit F). Plaintiff clams that she cannot pick up her grandchildren and relates this to the fall. Her medical records reveal that she has repeatedly sought treatment for diagnosed cervical and lumbar degenerative arthritis as well as degenerative arthritis in her shoulders, knees, wrists and feet. Her limitations were caused by her underlying disease process. Plaintiff retired from *** one year early on ***. She currently receives Social Security Retirement and a Comerica pension. Although she returned to work after she fell, Plaintiff received short-term disability through *** from *** while recovering from shoulder surgery. She did not make a formal request for an accommodation following her return from surgery and candidly testified that she decided to apply for early retirement after she realized that *** was critiquing the work of older employees and she felt her work was being scrutinized (Exhibit A). CONCLUSION The water in the vestibule did not amount to a dangerous condition, Plaintiff cannot prove that *** had notice of the water and Plaintiff can only guess as to why she fell. Her current complaints are not related to her 2009 fall. *** requests an award of $0.