CHARLES F BUTLER V WAL-MART STORES INC
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
CHARLES F. BUTLER,
UNPUBLISHED
March 27, 2001
Plaintiff-Appellee/Cross-Appellant,
v
No. 219203
Kalamazoo Circuit Court
LC No. 96-000949-NO
WAL-MART STORES, INC., d/b/a/ SAM’S
CLUB,
Defendant-Appellant/CrossAppellee,
and
MARLIN McNICHOLS and JOYCE DOZIER
McNICHOLS, d/b/a/ THE ORIGINAL KANSAS
CITY COOKER, and JAMES PULLEY,
Defendants.
Before: Talbot, P.J., and Hood and Smolenski, JJ.
PER CURIAM.
In this personal injury action, the jury returned a verdict finding defendant Wal-Mart
Stores, Inc., d/b/a Sam’s Club, seventy-five percent negligent, finding plaintiff Dr. Charles F.
Butler twenty-five percent negligent, and awarding plaintiff $5,288,500 in damages.1 Defendant
appeals as of right from the judgment in favor of plaintiff in the adjusted amount of
$1,600,972.63. On appeal, defendant challenges the trial court’s denial of its motions for a
directed verdict or for judgment notwithstanding the verdict (JNOV), the admission and
exclusion of evidence, the instructions to the jury, and the reduction of collateral source benefits
from the judgment. Plaintiff cross-appeals, claiming error in the trial court’s application of the
collateral source rule. We reverse.
1
Defendants Joyce Dozier McNichols and James Pulley were dismissed from the suit with
prejudice, and a default judgement was entered against defendant Marlin McNichols at the
conclusion of the trial. These parties are not involved in this appeal.
-1-
Plaintiff was a cardiac surgeon and Director of Cardiac Surgery at Bronson Methodist
Hospital. On the afternoon of Saturday June 10, 1995, plaintiff exited the Sam’s Club in Portage
carrying a large package of paper towels in front of him.2 As plaintiff made his way toward his
vehicle, he walked alongside a trailer-mounted barbecue assembly, which was situated in the
parking lot about 100 to 150 feet from the store entrance. When he attempted to pass between a
car and the assembly, he tripped and fell over the trailer tongue of the assembly. The assembly
was owned and operated by Marlin McNichols, d/b/a the Original Kansas City Cooker, who had
been selling ribs in the parking lot with defendant’s permission. The barbecue was neither
attended nor in operation at the time of the incident. As a result of the injuries sustained in the
fall, plaintiff is no longer able to perform surgery.
The testimony at trial established that the assembly, which included two large barrels that
functioned as grills, was six to twenty feet high and eighteen to twenty feet long. The trailer
tongue over which plaintiff tripped was angled in a “V”, protruded anywhere from three to threeand-a-half feet from the trailer, and was just below knee-level (fourteen to eighteen inches from
the ground). A vertical “winch” that raised and lowered the trailer was located about one foot
from the tip of the trailer tongue and stood about waist-high (forty-five to fifty inches from the
ground). At the time of the incident, the assembly was parked across and at the top of two
parking spaces, there was a car parked in the space to the right of the assembly where the trailer
tongue and winch were located,3 and there was a light post mounted on a yellow cement base in
front of the space where that car was parked.
Defendant first argues on appeal that the trial court erred in denying his motions for a
directed verdict or for JNOV. Defendant contends that it owed no duty to plaintiff because the
barbecue assembly and the trailer tongue were open and obvious conditions as a matter of law.
We agree.
This Court reviews a trial court’s grant or denial of a motion for a directed verdict or for
JNOV de novo. Abke v Vandenberg, 239 Mich App 359, 361; 608 NW2d 73 (2000). “A motion
for a directed verdict or for JNOV should be granted only when, viewing the evidence and all
legitimate inferences in the light most favorable to the nonmoving party, there are no issues of
material fact with regard to which reasonable minds could differ.” Cipri v Bellingham Frozen
Foods, Inc, 235 Mich App 1, 14; 596 NW2d 620 (1999); see also Wilkinson v Lee, 463 Mich
388, 391; 617 NW2d 305 (2000). If reasonable jurors could have reached different conclusions,
neither the trial court nor this Court may substitute its judgment for that of the jury. Clark v
Kmart Corp, 242 Mich App 137, 140; 617 NW2d 729 (2000); Head v Phillips Camper & Sales
Rental, Inc, 234 Mich App 94, 115; 593 NW2d 595 (1999).
Here, as in all negligence cases, plaintiff was required to prove that defendant owed him a
duty. Ellsworth v Hotel Corp of America, 236 Mich App 185, 194; 600 NW2d 129 (1999). A
business invitor must exercise reasonable care to protect invitees from unreasonable risks of
2
The package contained fifteen rolls of paper towels and consisted of three rows of five rolls.
3
The exact distance between the trailer tongue and the car was not established by the trial
testimony.
-2-
harm caused by dangerous conditions that the invitor knows or should know the invitees will not
discover or protect themselves against. Bertrand v Alan Ford, Inc, 449 Mich 606, 609; 537
NW2d 185 (1995), citing 2 Restatement Torts, 2d, § 343, pp 215-216. However, an invitor has
no duty to warn or protect an invitee from dangers that are so obvious and apparent that an
invitee can be expected to discover them himself. Riddle v McLouth Steel Products Corp, 440
Mich 85, 94; 485 NW2d 676 (1992). A danger is open and obvious if “an average user with
ordinary intelligence [would] have been able to discover the danger and the risk presented upon
casual inspection.” Novotney v Burger King Corp (On Remand), 198 Mich App 470, 475; 499
NW2d 379 (1993). “[T]he analysis . . . does not revolve around whether steps could have been
taken to make the danger more open or more obvious” but, rather, “whether the danger, as
presented, is open and obvious.” Id. at 474-475 (noting that the inquiry was not whether the
handicap ramp at issue could have been made more noticeable or safer by issuing warnings or
painting the ramp in a contrasting color). Further, “it is not relevant to the disposition of [the]
matter whether [the] plaintiff actually saw the [alleged hazard].” Id. at 475.
After reviewing the testimony and the photographs of the assembly in the light most
favorable to plaintiff, we cannot conclude that a question of fact existed regarding whether the
trailer tongue constituted an open and obvious condition. At trial, plaintiff’s expert offered
several reasons to explain why the low-lying protrusion would have been difficult for the typical
pedestrian to see while walking in a normal manner.4 The expert admitted, however, that the
trailer tongue was in plain view had one been looking at it. He specifically stated that the trailer
tongue was “not invisible,” that it was “shown in the photographs,” and that a person “could
stand right there and see every detail of it.” Plaintiff also acknowledged that the trailer tongue
and the waist-high winch were visible from the view depicted in the photographs. In any event,
plaintiff’s actual theory at trial was that the trailer tongue was not open and obvious from the
angle at which he approached it by walking alongside the huge barbecue assembly and sharply
turning the corner where the trailer tongue and winch were located. Plaintiff has not cited, nor
have we found, authority for the proposition that the manner in which a person approaches the
alleged hazard, or the fact that plaintiff chose a path that hewed so closely to the assembly that he
could not see around it, negates its obvious nature.
Moreover, plaintiff testified that although he believed he was being “very attentive” to his
surroundings, he admitted that he was “looking straight out,” was “not looking down at my feet,”
was carrying the package of paper towels, and was “looking for a way to get back to my car as –
as quickly as I could.” Plaintiff’s own expert even acknowledged that the fact that plaintiff was
holding a “relatively large, bulky package” in front of him interfered with his “cone-of-vision”
and made it difficult for him to see fewer than seven feet in front of him. Bertrand, supra at 611
(“if the particular activity or condition creates a risk of harm only because the invitee does not
discover the condition or realize its danger, then the open and obvious doctrine will cut off
4
Plaintiff’s expert specifically opined that (1) the mass of the assembly itself and the presence of
a light post mounted on a yellow base near the trailer tongue acted as “orientation edges” that
diverted the pedestrian’s attention from the protrusion (2) the trailer tongue was not marked or
contrasted from the rest of the assembly and (3) “any obstruction below knee level is difficult for
most pedestrians to see.”
-3-
liability if the invitee should have discovered the condition or realized its danger”); Millikin v
Walton Manor Mobile Home Park, Inc, 234 Mich App 490, 492; 595 NW2d 152 (1999) (“the
plaintiff admitted that ‘if I was looking for it I would have seen it’”). The record is devoid of
evidence establishing that a person such as plaintiff would not have seen the trailer tongue “upon
casual inspection.” Novotney, supra at 475. We therefore conclude that plaintiff failed to
present sufficient evidence to create an issue of material fact upon which reasonable minds could
differ as to whether an average user would not have discovered the alleged hazard upon casual
inspection.
Defendant also argues that the trial court erred in denying his motions because no
questions of fact existed regarding whether its duty of care remained because the alleged hazard
posed an unreasonable risk of harm despite its obviousness. Again, we agree.
Even where a dangerous condition is open and obvious, an invitor remains liable for harm
arising from the condition when the invitor “should anticipate the harm despite knowledge of it
on behalf of the invitee.” Riddle, supra at 96. In other words, an invitor may still have a duty to
protect an invitee against a foreseeably dangerous condition if the risk of harm remains
unreasonable despite its obviousness or despite knowledge of it by the invitee. Bertrand, supra
at 610-611, citing 2 Restatement Torts 2d, § 343A(1), p 218.5 “Thus, the open and obvious
doctrine does not relieve the invitor of [the] general duty of reasonable care.” Id. at 611. Our
Supreme Court in Bertrand explained the general rule and its exception as follows:
[T]he rule generated is that if the particular activity or condition creates a risk of
harm only because the invitee does not discover the condition or realize its danger,
then the open and obvious doctrine will cut off liability if the invitee should have
discovered the condition and realized its danger. On the other hand, if the risk of
harm remains unreasonable, despite its obviousness or despite knowledge of it by
the invitee, then the circumstances may be such that the invitor is required to
undertake reasonable precautions. The issue then becomes the standard of care
and is for the jury to decide. [Bertrand, supra at 611 (emphasis added).]6
After quoting this proposition, a panel of this Court summarized the reasoning employed
by the Bertrand Court:
Accordingly, the Court reasoned that while the danger of tripping and falling on a
step is generally open and obvious, there may be special aspects of particular steps
5
The Restatement provides:
A possessor of land is not liable to his invitees for physical harm caused to
them by any activity or condition on the land whose danger is known or obvious
to them, unless the possessor should anticipate the harm despite such knowledge
or obviousness. [2 Restatement Torts, 2d, § 343A(1), p 218.]
6
“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 617; Hughes v PMG
Building, Inc, 227 Mich App 1, 12; 574 NW2d 691 (1997).
-4-
[because of their “character, location, or surrounding conditions”] that make a risk
of harm unreasonable nonetheless. With respect to the Bertrand case, the Court
concluded that evidence regarding the “congested pedestrian traffic” resulting
from the “construction of the step, when considered with the placement of the
vending machines and the cashier’s window, along with the hinging door” was
sufficient to prevent summary disposition for the defendant. Id. at 624. Because
of this evidence, “a genuine issue existed regarding whether the defendant
breached its duty to protect the plaintiff against an unreasonable risk of harm, in
spite of the obviousness or of the plaintiff’s knowledge of the danger.” Id.
(emphasis in original). [Millikin, supra at 498-499.]
Unlike in Bertrand, there is no indication that the barbecue assembly and its attachments
were unusual in “character, location, or surrounding conditions.” It is not uncommon for parking
lots to contain trailers, vehicles with protruding attachments, or low-lying obstacles. Nor is it
unusual for pedestrians to have to navigate around vehicles, trailers, or other low-lying obstacles
as they negotiate their way through a parking lot. Further, although plaintiff’s expert testified
that the manner in which the assembly was parked created the impression of a walkway both in
front of the assembly and along the end of it where the trailer tongue was located, plaintiff was
not required to follow the path he chose to return to his vehicle. Indeed, plaintiff testified that he
took a different route from his vehicle to the store than he took from the store to the vehicle, so
an alternative route was available and known to plaintiff. Cf. Perry v Hazel Park Harness
Raceway, 123 Mich App 542, 550; 332 NW 2d 601 (1983) (holding that the trial court did not err
in denying the defendant’s motion for a directed verdict where the plaintiff “attempt[ed] to safely
negotiate an unavoidable hazard”).
Nor does the evidence establish that defendant should have anticipated that the placement
of the barbecue assembly in the parking lot would cause patrons to trip and fall. Bertrand, supra
at 611-612, quoting 2 Restatement Torts 2d, § 343A, comment f, p 220 (a reason “to expect harm
to the visitor from known or obvious dangers may arise, for example, where the possessor has
reason to expect that the invitee’s attention may be distracted, so that he will not discover what is
obvious . . . .”). The trailer on which the barbecue grills were placed was parked lengthwise
across two parking spaces. The photographs show that the trailer tongue ended near the center of
one of the parking spaces, leaving enough room for a person to walk between the trailer tongue
and any vehicle that might be parked next to it. It was also reasonable for defendant to expect
that patrons would carry the large bulky items purchased from the store in the shopping carts
provided and not in a manner that would obstruct their view of objects in the parking lot.
Finally, to the extent plaintiff maintains that he was “distracted” by trying to get to his car
without being hit by other vehicles, there is no indication that plaintiff was in imminent danger of
being hit by a car as he walked to his vehicle. See, e.g., Gjelaj v Wal-Mart Stores, Inc, 27 F Supp
2d 1011, 1014 (ED Mich, 1998). We recognize that directed verdicts are generally viewed with
disfavor in negligence cases. Hunt v Freeman, 217 Mich App 92, 99; 550 NW2d 817 (1996).
Nevertheless, upon reviewing the evidence in the light most favorable to plaintiff, we hold that
reasonable jurors could not have reached different conclusions regarding whether the alleged
hazard created a foreseeable and unreasonable risk of harm.
-5-
Because plaintiff’s evidence failed to establish a claim as a matter of law, the trial court
should have granted defendant’s motions for a directed verdict or for JNOV. We therefore
reverse and remand for entry of a directed verdict or JNOV in favor of defendant. We do not
retain jurisdiction.
In light of our disposition, we need not address defendant’s remaining issues or the issues
raised in plaintiff’s cross-appeal concerning the proper application of the collateral source rule.
/s/ Michael J. Talbot
/s/ Michael R. Smolenski
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
