KEITH D GRIFFITHS V MEIJER INC
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STATE OF MICHIGAN
COURT OF APPEALS
KEITH D. GRIFFITHS and MYRTLE GRIFFITHS,
UNPUBLISHED
September 24, 1999
Plaintiffs-Appellants,
v
No. 210263
Saginaw Circuit Court
LC No. 97-019140 NO
MEIJER, INC.,
Defendant-Appellee.
Before: Talbot, P.J., and Fitzgerald and Markey, JJ.
PER CURIAM.
Plaintiffs appeal as of right the order granting defendant’s motion for summary disposition
pursuant to MCR 2.116(C)(10). The trial court ruled that plaintiff Keith Griffiths, who claimed that he
tripped over a cart corral at defendant’s store, failed to allege facts sufficient to establish the causation
element of his negligence claim because Griffiths testified during his deposition that he did not actually
recall tripping over the corral. The court also held that the cart corral constituted an open and obvious
condition, precluding recovery by plaintiffs. We affirm.
Plaintiffs first argue that the trial court erred by holding that Griffiths’ deposition testimony did
not generate a genuine issue of material fact. We disagree. Plaintiffs claim that Griffiths’ affidavit, in
which he stated that he remembered tripping over the cement blocks of the cart corral, and the
testimony of other witnesses who were on the scene shortly after the accident, generated a genuine
factual issue.
Summary disposition of a claim or defense may be granted when except as to the amount of
damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment
or partial judgment as a matter of law. MCR 2.116(C)(10). The party opposing the motion has the
burden of showing by evidentiary materials that a genuine issue of disputed fact exists. Skinner v
Square D Co, 445 Mich 153, 160; 516 NW2d 475 (1994). That party may not rest on mere
allegations or denials in the pleadings, but must, by documentary evidence, set forth specific facts
showing that there is a genuine issue for trial. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547
NW2d 314 (1996).
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In this case, plaintiffs failed to proffer sufficient evidence to show that the cart corral actually
caused Griffiths’ injury. Griffiths testified that he did not remember what caused his fall, and he admitted
under oath that his opinion that the cart corral caused his fall was only a guess.
As a theory of causation, 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. On the other hand, if there is evidence which points to any 1
theory of causation, indicating a logical sequence of cause and effect, then there is a
juridical basis for such a determination, notwithstanding the existence of other plausible
theories with or without support in the evidence. [Kaminski v Grand Trunk W R Co,
347 Mich 417, 422; 79 NW2d 899 (1956), quoting City of Bessemer v Clowdus, 74
So 2d 259, 263 (Ala, 1954).]
In this case, Griffiths’ deposition testimony indicated that his theory of causation was merely an
explanation consistent with known facts and conditions; he testified that in the absence of other
explanations, and because he fell in an area close to the cart corral, he guessed that his fall was caused
by the cart corral. Given the possibilities that his fall was caused by moisture, loss of balance, or
tripping over some other object, plaintiffs’ theory of causation is conjectural. Griffiths was the only
witness to his fall, and his testimony was, by its express terms, guess work. No other witnesses saw
him fall, and no physical evidence was introduced to show that the cart corral was the cause in fact of
plaintiff’s injury.
Plaintiffs contend, however, that a material issue of fact was generated by the affidavit Griffiths
submitted in which he stated unequivocally that he tripped over the cart corral. The party opposing
summary disposition must, by documentary evidence, set forth specific facts showing that there is a
genuine issue for trial. Quinto, supra at 362. However, a party may not create a factual dispute by
submitting an affidavit that contradicts his prior sworn testimony. Palazzola v Karmazin Products
Corp, 223 Mich App 141, 155; 565 NW2d 868 (1997); Aetna Casualty & Surety Co v Ralph
Wilson Plastics Co, 202 Mich App 540, 548; 509 NW2d 520 (1993).
In this case, after defendant moved for summary disposition, plaintiffs offered an affidavit in
which Griffiths directly contradicted his deposition testimony. During his deposition, Griffiths stated that
he did not recall how he fell; in his affidavit, he stated that he did remember how he fell. During
Griffiths’ deposition, he stated that he did not see the cart corral after he fell; in his affidavit, he stated
that he saw the curb of the corral after he fell. During his deposition, he stated that he “guessed” that
the corral caused his fall; in his affidavit, he emphasized that the corral “must” have caused his fall.
Griffiths’ affidavit references “something solid and immovable” whereas his deposition testimony
referenced no such structure. We conclude that the affidavit proffered by plaintiffs represents exactly
the kind of document meant to be precluded by the rule stated in Palazzola, supra at 155. The trial
court properly refused to hold that the affidavit created a genuine issue of fact for submission to a jury.
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Plaintiffs next argue that the trial court should not have decided, as a matter of law, that the
cement blocks of the cart corral were an open and obvious danger. We disagree. In Bertrand v Alan
Ford, Inc, 449 Mich 606, 617-618; 537 NW2d 185 (1995), our Supreme Court considered the open
and obvious doctrine in the context of a case involving steps, and explained:
In summary, because steps are the type of everyday occurrence that people
encounter, under most circumstances, a reasonably prudent person will look where he is
going, will observe the steps, and will take appropriate care for his own safety. Under
ordinary circumstances, the overriding public policy of encouraging people to take
reasonable care for their own safety precludes imposing a duty on the possessor of land
to make ordinary steps “foolproof.” Therefore, the risk of harm is not unreasonable.
However, where there is something unusual about the steps, because of their
“character, location, or surrounding conditions,” then the duty of the possessor of land
to exercise reasonable care remains. If the proofs create a question of fact that the risk
of harm was unreasonable, the existence of duty as well as breach become questions for
the jury to decide. [Id. at 616-617 (citations and footnotes omitted).]
No evidence was produced below to address whether cart corrals are encountered in everyday
life such that a reasonably prudent person traversing a store parking lot would look where he is going,
observe the corrals, and take appropriate steps to ensure his own safety. However, as a matter of
common experience, cart corrals are commonly found in supermarket parking lots. The question, then,
is whether this particular corral had such character, location, or surrounding conditions that would make
it unreasonably dangerous despite being the kind of hazard that is typically open and obvious. Although
plaintiffs averred in their complaint that the corral was “low-profile,” they did not produce any evidence
to show how the corral differed from any other corral such that it had a distinct character or exceedingly
hazardous location or surrounding conditions. See Millikin v Walton Manor Mobile Home Park, Inc,
234 Mich App 490, 498-499; ___ NW2d ___ (1999). When a party defends against a motion for
summary disposition, it is not enough to rest on allegations or simply to state conclusions; concrete
evidence must be produced that would allow a trial judge to conclude that a material issue of fact exists.
MCR 2.116(G)(4). The trial court correctly concluded that plaintiffs failed to meet this burden.
We note that one other jurisdiction has addressed the specific issue whether a cart corral similar
to the one at issue here posed an unreasonable risk of harm. The case is well reasoned and highly
instructive. In Denton v Winn-Dixie Greenville, Inc, 312 SC 119; 439 SE2d 292, 293 (1993), the
South Carolina Court of Appeals considered whether a trial court erred in denying a store’s motion for
judgment notwithstanding the verdict after the store was sued for negligently building and maintaining a
cart corral in the store’s parking lot. The court stated that the corral consisted of “six yellow concrete
dividers, each approximately six feet long and eight to ten inches high, that were placed in a U-shape.
The corral was located within a parking space near the entrance of the store.” Id.
The court outlined the facts as follows:
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On August 20, 1990, at approximately 4:00 p.m., Denton left the Winn-Dixie
grocery store and proceeded toward her car. As she approached her car, a fast
moving vehicle came towards her down the lane between the parking spaces. The lane
was wide enough to accommodate two cars passing each other. As she moved out of
the path of the oncoming vehicle, Denton tripped and fell on a concrete divider at the
edge of the cart corral. Denton's fall occurred during clear weather and daylight hours.
Denton, a regular customer of the store for at least five years, testified that she
was aware of the cart corral prior to the accident, she had noticed the corral prior to
entering the store the day of the accident, and that she had noticed the corral as she
exited the store on the day of the accident. She further testified the concrete dividers
were not hidden from her view. She failed to step over them in her haste to avoid the
oncoming car. [Id.]
The court went on to explain:
In this case, the cart corral was in the parking lot to keep wayward grocery
carts from interfering with pedestrian and vehicular traffic. It was foreseeable that
grocery carts left by customers in parking spaces or traffic lanes could cause accidents.
Thus, the cart corral was itself a safety device, appropriately and reasonably maintained
under the circumstances. The corral was not materially different from speed bumps,
curbing, or concrete dividers at the head of parking spaces – all of which are commonly
found in or along public streets and places to park. Accidents may happen around
these structures as they do on steps, escalators, and other raised structures. This does
not mean they are unreasonably dangerous or that a person exercising due care would
not have them on the premises. They are, in fact, common structures that a person
taking reasonable care for his own safety would likely expect and see while on the
premises.
Denton admits she saw the clearly visible dividers but that she was preoccupied
with the oncoming car and tripped. No evidence was presented that Winn-Dixie was
responsible for the speeding car. In these circumstances, Winn- Dixie was under no
duty to warn of the cart corral or to fence it off from the rest of the parking lot. Based
on the evidence presented, the circuit court should have entered judgment
notwithstanding the verdict. [Id., 439 SE2d 294.]
The court also noted, in a footnote, that
[t]he shopping cart corral had no railing around it. Denton testified that if there had
been railings around the area, she might still have tripped but she could have caught hold
of a railing to prevent, or lessen the severity of, her fall. This testimony was mere
speculation. Moreover, the installation of a railing could foreseeably lead to other
accidents. For example, a child might be attracted to climb on the railing whence it
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could fall and injure itself. Winn-Dixie had no duty to make the parking lot accident
proof. [Id., 439 SE2d 294 n 2.]
The present case is analogous. As noted by the Denton court, cart corrals are themselves
safety devices; thus, it is reasonable to provide them. As was the case in Denton, the cart corral at
issue here was constructed from cement blocks similar to curbs, not unlike cement blocks encountered
in many walks of life. The Denton court was correct to posit that these are not structures so inherently
dangerous that a person exercising reasonable care would exclude them from the premises. As was the
case in Denton, Griffiths admitted that he was familiar with the corrals and their design. Like the plaintiff
in Denton, Griffiths was preoccupied with conditions outside the store’s control; in this case, rain and an
umbrella rather than an oncoming car. We conclude that under these circumstances, the trial court did
not err in concluding that defendant was under no duty to warn of the cart corral or fence it off because
the corral posed an open and obvious danger.
Affirmed.
/s/ Michael J. Talbot
/s/ E. Thomas Fitzgerald
/s/ Jane E. Markey
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