Valerie Zohr v. Meijer Inc ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
VALERIE ZOHR, UNPUBLISHED
February 28, 2019
Plaintiff-Appellant,
v No. 340512
Macomb Circuit Court
MEIJER, INC., LC No. 2016-001605-NO
Defendant-Appellee.
Before: TUKEL, P.J., and SHAPIRO and GADOLA, JJ.
PER CURIAM.
Plaintiff, Valerie Zohr, appeals as of right the order of the trial court granting summary
disposition in favor of defendant, Meijer, Inc., pursuant to MCR 2.116(C)(10). We affirm.
I. FACTS
This case arises from plaintiff’s claim that she was injured at defendant’s store in Lenox,
Michigan. Plaintiff was employed as a merchandiser for one of defendant’s vendors, Serv-U-
Success. Plaintiff testified that on the day in question, she was working at defendant’s store and
using a flat-top cart to stock merchandise. When plaintiff arrived that day, she selected the cart
from the carts available, and as she had been trained to do, inspected the cart to make sure that
the wheels and brakes worked properly. After determining that the cart worked properly, she
loaded the cart with merchandise and took the cart onto the floor of the store where she used the
cart to stock shelves, repeatedly climbing up and down the cart’s ladder. Plaintiff testified that
she used the cart without incident for at least two hours, and possibly as long as four or five
hours; then, as she climbed down the ladder, the cart started to roll, causing her to lose her
balance. As a result, she missed a step, her left knee scraped the second step, and her leg hit the
floor and hyperextended. Plaintiff informed Gary Bulgarelli, a senior representative for Serv-U-
Success, of her accident.
Bulgarelli recalled that on the day of plaintiff’s fall he was working in the receiving area
when plaintiff joined him and was doing some work. After about 10 or 15 minutes, she
mentioned that she had slipped and banged her knee while stepping down from a cart, but did not
appear to be hurt. Bulgarelli recalled that plaintiff thought that the cart’s brake or lock had not
worked properly. Bulgarelli notified Don Cleland, market manager for Serv-U-Success, about
plaintiff’s injury. According to Cleland, plaintiff then showed him the cart she had been using.
He tested the cart by pushing the ladder down and by manually engaging the lock by means of
the foot pedal; the ladder and the lock both functioned properly.
The flat-top carts at defendant’s store are owned and maintained by defendant.
Defendant provides the carts for use by the employees of the store’s vendors. Bulgarelli testified
regarding how flat-top carts function. Stepping on the ladder activates the lock, which makes a
clicking noise, locking the rubber feet on the ground so the cart cannot move. When the user
steps off the ladder, the ladder “will pop back up,” but the brake does not automatically release.
Rather, the user must press the brake pedal with his or her foot to release the brake. Bulgarelli
testified that in his experience, the brake on a cart never releases unless the brake pedal is first
released. He further testified that even if the brake is not engaged, the ladder remains down and
in place for as long as the user’s weight is on the ladder; he opined that a cart would only move if
the user lost his or her balance, and pushed the cart while falling.
Defendant’s store director, Christina Buehrle, testified that if a cart were not working
properly, it would be identified with a sign as out of order, and placed in the mechanic’s room
for repair. Plaintiff testified, however, that despite this maintenance policy, the carts were often
in poor repair.
Plaintiff filed this action, alleging that defendant owed her a duty of care that it breached
by failing to inspect and properly maintain the carts, resulting in her injury. Defendant moved
for summary disposition under MCR 2.116(C)(10), arguing that plaintiff had failed to
demonstrate that defendant had breached any duty or that any such breach was the proximate
cause of her alleged injuries. The trial court granted defendant’s motion for summary
disposition, concluding that it was the duty of Serv-U-Success to ensure that the carts were
functioning and that its employees were using them properly, and not the duty of defendant.
Plaintiff now appeals to this Court.
II. DISCUSSION
A. STANDARD OF REVIEW
We review de novo a trial court’s decision to grant or deny summary disposition.
Dawoud v State Farm Mut Auto Ins Co, 317 Mich. App. 517, 520; 895 NW2d 188 (2016). When
reviewing an order issued under MCR 2.116(C)(10), this Court considers all documentary
evidence submitted by the parties in the light most favorable to the nonmoving party. Id.
Summary disposition under MCR 2.116(C)(10) is warranted when there is no genuine issue as to
any material fact and the moving party is entitled to judgment as a matter of law. Id. A genuine
issue of material fact exists when reasonable minds could differ on an issue when the record is
viewed in the light most favorable to the nonmoving party. Allison v AEW Capital Mgt, LLP,
481 Mich. 419, 425; 751 NW2d 8 (2008).
B. DUTY
Plaintiff first contends that the trial court erred in determining that defendant did not owe
plaintiff a duty of care. To set forth a prima facie case of negligence, a plaintiff must
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demonstrate that (1) the defendant owed a legal duty to the plaintiff, (2) the defendant breached
that duty, (3) the plaintiff suffered damages, and (4) the defendant’s breach was a proximate
cause of those damages. Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich. 157, 162;
809 NW2d 553 (2011). The initial inquiry is whether the defendant owed the plaintiff a duty.
Johnson v Bobbie’s Party Store, 189 Mich. App. 652, 659; 473 NW2d 796 (1991). Whether a
duty exists is a question of law for determination by the court. Roberts v Salmi, 308 Mich. App.
605, 613; 866 NW2d 460 (2014). If the defendant is determined to have owed a duty, breach of
that duty generally is a question of fact. Boumelhem v Bic Corp, 211 Mich. App. 175, 181; 535
NW2d 574 (1995).
To ascertain whether duty exists, we consider a variety of factors including “the
relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the
nature of the risk presented,” with the most important of these factors being the relationship of
the parties. Hill v Sears, Roebuck & Co, 492 Mich. 651, 661; 822 NW2d 190 (2012) (citation
omitted). The defendant can only be subject to liability for negligent conduct if the law
recognizes that the relationship of the parties imposes a duty for the defendant to act with due
care toward the plaintiff. In re Certified Question from the Fourteenth Dist Court of Appeals of
Texas, 479 Mich. 498, 506; 740 NW2d 206 (2007).
In this case, plaintiff was employed by a contractor that defendant hired to perform a task
in defendant’s store. Generally, an independent contractor is responsible for the safety of its
employees in the workplace. Candelaria v BC Gen Contractors, Inc, 236 Mich. App. 67, 72; 600
NW2d 348 (1999). An owner may be held liable for negligence, however, if the owner retains
supervisory control, in which case the focus is on the manner in which the owner acted, or failed
to act, in relation to the safety of the injured party. Id. at 73-74. To establish liability of an
owner under the theory of retained control, a plaintiff must prove that the owner failed to take
reasonable steps within its supervisory authority to guard against readily observable and
avoidable dangers, thereby creating a high degree of risk to a significant number of workers. See
Latham v Barton Malow Co, 480 Mich. 105, 112; 746 NW2d 868 (2008).
Plaintiff contends that defendant owed her a duty of care because defendant owned the
carts and controlled their maintenance. There is no dispute that defendant owned and maintained
the flat-top carts, nor that defendant provided the carts for use by Serv-U-Success employees
while stocking shelves in defendant’s store. But assuming that defendant therefore owed a duty
to plaintiff under a theory of retained control, plaintiff has nonetheless failed to demonstrate that
defendant breached that duty. Before the trial court, plaintiff introduced testimony that the carts
often were in poor repair. There is no evidence, however, that the cart that plaintiff was using
when she was injured presented a readily observable and avoidable danger. Plaintiff testified
that she was trained to inspect each flat-top cart before using it, including checking the cart’s
locking mechanism, and that she would not use a cart that did not lock. Plaintiff testified that on
the day of the incident, consistent with her training, she tested the cart before using it and
determined that the locking mechanism was functioning properly. She then used the cart for
several hours, and the cart functioned properly. Plaintiff testified that she did not know exactly
how the cart worked mechanically, but that as she stepped down, the cart had moved forward,
causing her injury. Afterward, a Serv-U-Success manager inspected the cart, tested the ladder
and brake pedal on the cart, and was unable to identify any defect with the cart’s performance.
Although defendant arguably had control of the cart, based upon these facts, it cannot be said
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that the cart in question presented a readily observable and avoidable danger. No one, including
plaintiff, either before or after the accident, detected any defect or malfunctioning of the cart.
Consequently, defendant was never placed on notice of a defect in the cart plaintiff used on the
date of the accident. Plaintiff therefore did not demonstrate that defendant breached any duty of
care to guard against readily observable and avoidable dangers.
Having concluded that defendant did not breach a duty of care to plaintiff, we need not
reach the issue of proximate causation.
Affirmed.
/s/ Jonathan Tukel
/s/ Douglas B. Shapiro
/s/ Michael F. Gadola
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