Court of Appeals Rejects Plaintiff’s Premises Liability Claim and Explains Difference Between “Speculation and Conjecture” and “Reasonable Inference” in Proving Negligence

In this otherwise unremarkable “slip and fall” case, the Court of Appeals neatly illustrates the insufficiency of speculation and conjecture about the cause of an alleged injury suffered by the plaintiff in the defendant’s store.

In Fedrick v. KMart Corp. et al.,  Unpublished Opinion of the Michigan Court of Appeals, released February 14, 2013 (COA Docket No. 307816), the plaintiff alleged she injured herself when she slipped and fell in the automotive supply aisle of the defendant’s retail store.  By way of allegation, she linked the cause of her fall to either (1) a new chemical used by the cleaning company to wax the floor in the aisle making it exceedingly slippery, and/or (2) an unknown substance spilled from one of the many automobile products on the shelves.  Plaintiff presented no linking evidence that either of these circumstances directly caused the alleged slippery condition, and therefore, her alleged fall.

The Court of Appeals correctly affirms the trial court’s dismissal of plaintiff’s case.  Citing to the bellwether decision Skinner v. Square D Co., 445 Mich. 153, 164-165 (1994), the Court of Appeals panel neatly summarizes the requirement that in order for a case to move forward to trial on the basis of allegations, there must be a causal linkage between the alleged catalyst for the incident and the actual happening of that incident, the latter of which serves as the basis for seeking damages.  At pages 2 and 3 of the opinion, the Court cites the language from Skinnersupra, and concludes that while the plaintiff presented “different plausible explanations” for why the floor may have been slippery, i.e., the use of a new cleaning product by U.S. Maintenance [the store’s floor cleaning contractor], or a spill from an automotive product, she presented no evidence to support the conclusion that either of these alleged incidents actually resulted in, i.e., caused, her fall.  There was no evidence presented regarding the chemicals used by the cleaning company and no evidence presented that a foreign substance was on the floor at the time of her alleged fall.

Quoting Skinnersupra, the Court notes:  “[A] conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference.  There may be 2 or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any 1 of them, they remain conjectures only….  The crucial factor is that “‘if [the] evidence lends equal support to inconsistent conclusions or is equally consistent with contradictory hypotheses, negligence is not established.”  Slip Op. at 2 (emphasis in original), citing Skinnersupra at 166-167.

Without evidence that the cleaning company actually did use a “new” chemical substance , or evidence (such as staining on plaintiff’s clothing, a report of a clean up at the location after plaintiff’s fall, etc.) that there was in fact a foreign substance on the floor at the time of plaintiff’s fall, which led to a condition of the floor making it any more slippery or hazardous than previously, plaintiff will fail to carry her burden to survive a summary motion brought pursuant to MCR 2.116(C)(10).  See also MCR 2.116(G)(5).

About cjtucker06

Owner of law firm since July 2014; Handles all types of appellate matters and assists other lawyers with complex litigation and insurance coverage issues; Admitted to the Supreme Court of the United States, the Sixth Circuit Court of Appeals and the State Bar of Michigan; Expertise in prosecuting and defending appeals with several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals; Author of briefs amicus curiae in the Michigan Supreme Court for the Michigan Defense Trial Counsel and the Insurance Institute of Michigan; Represents Insurance Companies, Major International Business, Governmental Entities, Law Enforcement Officers and County Sheriffs. Board of Directors, Michigan Defense Trial Counsel Amicus Committee Co-Chair, Michigan Defense Trial Counsel Military - Retired Major in the Judge Advocate General (JAG) Corps of the United States Army, Brigade Judge Advocate and Staff JAG officer for the Maneuver Training Center, Camp Grayling, Michigan; Recipient of the Army's Meritorious Service Medal (the highest medal of honor available to Soldiers serving in non-combat roles); 2012 Graduate of the Judge Advocate Officer Advanced Course, at The Judge Advocate Legal Center and School, Charlottesville, Virginia. United States Navy Reserves, Combat Warfare Qualification, January 1989 to July 2003 Former law clerk to Justice Stephen J. Markman, Michigan Supreme Court, Research Attorney, Michigan Court of Appeals. Insurance Coverage Associate Plunkett Cooney; Environmental Law Attorney at Squire Sanders, now Squire Patton Boggs; Master's Degree in Environmental Law; Environmental Law Scholar, ALI/ABA Washington, D.C., Juris Doctorate, Vermont Law School, Environmental Editor, Vermont Law Review; Treasurer and Finalist, Moot Court Advisory Board.
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