                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 07a0416p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                              X
                                        Plaintiff-Appellant, -
 BARBARA DEBUSSCHER,
                                                               -
                                                               -
                                                               -
                                                                   No. 06-2536
              v.
                                                               ,
                                                                >
 SAM’S EAST, INC.,                                             -
                                       Defendant-Appellee. N
                               Appeal from the United States District Court
                              for the Eastern District of Michigan at Detroit.
                             No. 04-72319—Gerald E. Rosen, District Judge.
                                        Argued: September 18, 2007
                                   Decided and Filed: October 11, 2007
        Before: BATCHELDER and GILMAN, Circuit Judges; VARLAN, District Judge.*
                                             _________________
                                                   COUNSEL
ARGUED: Louis G. Corey, THE COREY LAW FIRM, Royal Oak, Michigan, for Appellant.
William L. Henn, SMITH, HAUGHEY, RICE & ROEGGE, Grand Rapids, Michigan, for Appellee.
ON BRIEF: Louis G. Corey, THE COREY LAW FIRM, Royal Oak, Michigan, for Appellant. Jon
D. VanderPloeg, SMITH, HAUGHEY, RICE & ROEGGE, Grand Rapids, Michigan, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
       RONALD LEE GILMAN, Circuit Judge. Barbara DeBusscher was injured when a portable
basketball goal fell on her while she was shopping in a Sam’s Club store operated by a subsidiary
of Wal-Mart Stores, Inc. The district court granted summary judgment in favor of the store after
concluding that DeBusscher failed to produce sufficient evidence that the store caused the accident
or had notice of an unsafe condition that resulted in her injuries. For the reasons set forth below,
we REVERSE the judgment of the district court and REMAND the case for further proceedings
consistent with this opinion.




        *
          The Honorable Thomas A. Varlan, United States District Judge for the Eastern District of Tennessee, sitting
by designation.


                                                         1
No. 06-2536           DeBusscher v. Sam’s East, Inc.                                           Page 2


                                        I. BACKGROUND
A.     Factual background
        On August 14, 2002, DeBusscher was shopping in a Sam’s Club store in Roseville,
Michigan, accompanied by her three children. At the time, her son Nathan was seven years old, her
daughter Miranda was four, and her daughter Autumn was three. DeBusscher arrived at the store
between 12:30 p.m. and 2:00 p.m., and shopped for approximately 30 minutes prior to the accident
that led to the present suit.
        While DeBusscher was shopping, her son walked next to the shopping cart and her two
daughters sat inside the cart. Autumn asked to get out of the cart at some point. DeBusscher lifted
Autumn from the cart and set her on the floor. As she was doing so, she heard Nathan say: “There’s
nothing in it.” Within moments, a portable basketball goal that was on display in the immediate
vicinity of the cart fell on DeBusscher, striking her head and pinning it between the backboard and
the rim.
       Shortly after the basketball goal fell on DeBusscher, Fred Heck, the store’s merchandise
manager, came to the scene. DeBusscher was bleeding from her head where the basketball goal had
struck her. Heck asked DeBusscher what had happened. According to Heck, she told him that
Nathan was playing with the basketball goal when it fell on her. DeBusscher, however, said in her
deposition that Nathan later told her that he had simply touched some part of the goal before it fell.
        DeBusscher was injured by a Lifestyle-brand portable basketball post and goal that sits on
a large, rectangular wheeled base. Fred Heck said in his deposition that the base is designed to be
filled with sand or water to stabilize the unit and prevent it from toppling over. He had not set up
the model that fell on DeBusscher. That particular basketball goal had been put in place prior to
Heck’s arrival at the Roseville store more than two years earlier.
         Although Heck testified that the base “felt like there was water in it” when he moved the goal
to the side of the aisle where DeBusscher was injured, he never checked the inside of the base either
prior to or after DeBusscher’s accident. He also said that he never directed anyone at the store to
add sand or water to the base during the two years prior to the accident. Heck did say, however, that
a 55-gallon bucket of pool chemicals had been placed on the base of the goal prior to the accident
to provide stability, but that the bucket had fallen over at some point prior to or when the basketball
goal fell on DeBusscher. He testified that he had seen the bucket sitting on the goal’s base earlier
that day when he did a walk-through of the area.
        Although emergency medical technicians were called to the store, DeBusscher declined to
go to a hospital because she was worried about her children and wanted to be able to take them
home. Instead, she stayed in the store approximately an hour after the accident before leaving on
her own. Her husband drove her to the hospital the next morning because she was still experiencing
pain in her head and neck. She was diagnosed with a closed-head injury and contusions to her scalp.
        The record contains no evidence about the specific characteristics of the basketball goal, and
no photographs are included in the record. There is no information about the manufacturer’s
requirements for stabilizing the base of the unit. The goal in question was taken off the display floor
after the accident and has subsequently been either lost or destroyed. DeBusscher, however, does
not raise any claim of evidence spoliation by the defendant. Sam’s East relocated the Roseville store
to a new location approximately two years after the accident, and the store where DeBusscher was
injured no longer exists.
No. 06-2536           DeBusscher v. Sam’s East, Inc.                                            Page 3


B.      Procedural background
        DeBusscher filed the present complaint in the Circuit Court of Macomb County, Michigan
in June of 2004. She sought damages from Sam’s East, Inc., a subsidiary of Wal-Mart, for medical
expenses, pain and suffering, loss of income and earning capacity, and mental and emotional
suffering based on a claim of premises liability. Sam’s East removed the suit to federal district court
based on diversity of citizenship. In December of 2004, Sam’s East filed a motion for summary
judgment on the ground that it had no notice of any alleged hazard in its store. The district court
granted the motion in a written opinion in October of 2006. This timely appeal followed.
                                           II. ANALYSIS
A.      Standard of review
        We review de novo the district court’s grant of summary judgment. Int’l Union v. Cummins,
Inc., 434 F.3d 478, 483 (6th Cir. 2006). Summary judgment is proper where no genuine issue of
material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). In considering a motion for summary judgment, the district court must construe the evidence
and draw all reasonable inferences in favor of the nonmoving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The central issue is “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52
(1986).
B.      Substantive law
        DeBusscher is a resident of Michigan and Sam’s East is incorporated in and has its principal
place of business in Arkansas. “In diversity cases such as this, we apply state law in accordance
with the controlling decisions of the state supreme court.” Allstate Ins. Co. v. Thrifty Rent-A-Car
Sys., Inc., 249 F.3d 450, 454 (6th Cir. 2001).
C.      Premises liability
        DeBusscher characterized her claim as a premises-liability claim rather than as a general
negligence claim. Premises liability is a specific type of negligence claim based on an injury that
arises out of a condition on the property as opposed to an injury arising out of the activity or conduct
that created the condition. See James v. Alberts, 626 N.W.2d 158, 162 (Mich. 2001). “For purposes
of premises liability, Michigan courts recognize three common-law categories: trespasser, licensee,
and invitee.” Kessler v. Visteon Corp., 448 F.3d 326, 336-37 (6th Cir. 2006) (citing James, 626
N.W.2d at 162). “A landowner’s duty to a visitor depends upon that visitor’s status.” Id. at 337
(citing Stitt v. Holland Abundant Life Fellowship, 614 N.W.2d 88, 91 (Mich. 2000)). DeBusscher
was clearly an invitee. “An invitee is a person who enters upon the land of another upon an
invitation which carries with it an implied representation, assurance, or understanding that
reasonable care has been used to prepare the premises, and make [it] safe for [the invitee’s]
reception.” Stitt, 614 N.W.2d at 92 (quotation marks omitted, brackets in original).
        “In general, a premises possessor owes a duty to an invitee to exercise reasonable care to
protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land.”
Lugo v. Ameritech Corp., Inc., 629 N.W.2d 384, 386 (Mich. 2001). This duty does not extend to
open and obvious dangers, however, unless a special aspect of the open and obvious condition
renders it unreasonably dangerous. Id. Open and obvious dangers are ones that are “known to the
invitee or are so obvious that the invitee might reasonably be expected to discover them,” and from
which “an invitor owes no duty to protect or warn the invitee unless he should anticipate the harm
despite knowledge of it on behalf of the invitee.” Id.
No. 06-2536            DeBusscher v. Sam’s East, Inc.                                             Page 4


        In the present case, an invitee such as DeBusscher would reasonably expect that the
basketball goal had been secured before being placed on display, such as by filling its base with a
ballast of sand or water. The record establishes that there were no warning signs on the basketball
goal or any other notification to customers that the base of the goal was not properly filled or
otherwise secured. But the record also establishes the fact that Sam’s East knew that customers
might adjust or otherwise make contact with the basketball goal. Short of opening the base to
determine that it was properly filled, a customer such as DeBusscher would have no way to know
whether the basketball goal at Sam’s East was stable. The basketball goal, therefore, did not
constitute an open and obvious danger under Michigan law. Sam’s East accordingly owed a duty
of care to DeBusscher regarding the basketball goal.
        According to DeBusscher, Sam’s East breached this duty when the basketball goal fell on
her after her son Nathan touched it. Fred Heck, the merchandise manager responsible for the
basketball goal and similar items, admitted in his deposition that he had not personally checked the
basketball goal’s base to see if it was filled with a ballast of sand or water, that he had never directed
any other employee to check the base, and that he had not checked after the accident to see if the
base had a proper ballast. In fact, the apparent strategy of Sam’s East was to place a 55-gallon
bucket of pool chemicals on top of the base to provide stability rather than to monitor the level of
the ballast inside the base. The use of the 55-gallon bucket of chemicals to secure the basketball
goal strongly suggests that Sam’s East had actual or constructive notice that an unsecured basketball
goal, and specifically the basketball goal in question, presented a risk of falling and potentially
injuring employees or customers in the vicinity.
        Despite the negative impact of these facts on Sam’s East, DeBusscher’s claim is weakened
by the near-total lack of admissible evidence supporting the argument that Sam’s East breached its
duty to secure the basketball goal. The strongest evidence that DeBusscher offers in support of her
claim is Heck’s deposition testimony. Although DeBusscher contends that her son Nathan informed
her after the incident that he had “touched” the goal immediately before it fell, this statement is
inadmissible hearsay. Nathan is in fact the only witness with firsthand knowledge of what caused
the basketball goal to fall, yet DeBusscher’s counsel inexplicably failed to include any testimony
from Nathan in the record. As the district court properly noted, this oversight significantly weakens
DeBusscher’s argument.
        Drawing all reasonable inferences in favor of DeBusscher, however, we find that she
produced sufficient evidence to survive the motion for summary judgement against her.
DeBusscher’s claim is essentially a res ipsa loquitur claim based on the following syllogism:
properly secured basketball goals do not fall over in ordinary circumstances, whether or not touched
by a seven-year-old child; this goal did fall over; therefore, it must not have been properly secured.
         The Michigan Supreme Court has previously issued somewhat ambiguous statements
regarding the doctrine of res ipsa loquitur. Compare Mitcham v. City of Detroit, 94 N.W.2d 388,
393 (Mich. 1959) (concluding that “[b]y whatever euphemisms we may choose to call it, we suspect
that res ipsa loquitur is here to stay”), with Wilson v. Stilwill, 309 N.W.2d 898, 905 n.5 (Mich. 1981)
(“Michigan has not formally adopted the doctrine of res ipsa loquitur. However, the underlying
concepts of res ipsa loquitur, which are circumstantial evidence and negligence concepts, have been
applied in Michigan.”). Nonetheless, in 1987, the Michigan Supreme Court formally recognized
what had become a practical reality:
        Whether phrased as res ipsa loquitur or circumstantial evidence of negligence, it is
        clear that such concepts have long been accepted in this jurisdiction. The time has
        come to say so. We, therefore, acknowledge the Michigan version of res ipsa loquitur
        which entitles a plaintiff to a permissible inference of negligence from circumstantial
        evidence.
No. 06-2536           DeBusscher v. Sam’s East, Inc.                                           Page 5


Jones v. Porretta, 405 N.W.2d 863, 872 (Mich. 1987) (quotation marks omitted).
       “The major purpose of the doctrine of res ipsa loquitur is to create at least an inference of
negligence when the plaintiff is unable to prove the actual occurrence of a negligent act.” Id. Under
Michigan’s version of the doctrine of res ipsa loquitur, the plaintiff must establish that
       (1)     [t]he event must be of a kind which ordinarily does not occur in the
               absence of someone’s negligence[,]
       (2)     [t]he event must have been caused by an agency or instrumentality
               within the exclusive control of the defendant[,]
       (3)     [t]he event must not have been due to any voluntary action or
               contribution on the part of the plaintiff[, and]
       (4)     [e]vidence of the true explanation of the event must be more readily
               accessible to the defendant than to the plaintiff.
Wilson, 309 N.W.2d at 905 (concluding that the plaintiff in a medical malpractice claim had not
established a prima facie case of negligence by the defendant hospital).
        In the present case, the basketball goal was on display in a Sam’s Club store. Evidence in
the record demonstrates that Sam’s East knew that customers might touch the basketball goal in
some manner and that the base of the basketball goal required a ballast in order to be stable.
Moreover, a basketball goal should not tip over simply because a seven-year-old child touches it.
This fact was directly conceded by Heck in his deposition:
       Q:      Is [a seven-year-old child] supposed to be able to tip over a basketball post
               like that?
       A:      No.
        The record also indicates that DeBusscher herself did not contribute to the accident. She
testified that she had lifted her daughter, Autumn, and set her in front of the shopping cart
immediately prior to the basketball goal falling upon her. Under these circumstances, evidence of
the true explanation for the accident was more readily accessible to Sam’s East than to DeBusscher.
The store maintained exclusive possession of the basketball goal both before and after the accident,
removed it from the display floor after it fell on DeBusscher, and sent it to the Claims Department.
Checking the ballast level would have been a simple enough matter, but Heck testified that he did
not undertake even this basic investigative task.
         Accordingly, despite her counsel’s failure to include in the record readily available and
admissible evidence of causation, DeBusscher has made the required showing for a claim of res ipsa
loquitur. This showing renders the district court’s grant of summary judgment erroneous. The fact
that a portable basketball goal on display in a store should not fall over if properly maintained, even
if “touched” by a seven-year-old child, raises an inference of negligence on the part of the store and
shifts the burden of rebutting that inference to the defendant. See Woodard v. Custer, 702 N.W.2d
522, 525 n.2 (Mich. 2005) (applying the doctrine of res ipsa loquitur in a medical malpractice case).
        Moreover, even if we were to analyze DeBusscher’s claim solely under the state’s
premises-liability standard, summary judgment was improper. In a Michigan premises-liability
action for negligence, a plaintiff must provide evidence of a defect in order to establish factual and
proximate causation for the injury. Sparks v. Wal-Mart Stores, Inc., 361 F. Supp. 2d 664, 671
(Mich. 2005). The district court provided an extended, but ultimately excessively dismissive,
discussion of the ways in which it concluded that DeBusscher failed to establish that Sam’s East
caused the accident that injured her.
No. 06-2536           DeBusscher v. Sam’s East, Inc.                                         Page 6


        But DeBusscher in fact did provide sufficient evidence that Sam’s East and its employees
failed to monitor the ballast level in the base of the basketball goal and that store employees knew
that the base required ballast in order to be properly secured. Heck testified at his deposition that
he knew that the basketball goal needed to be secured with ballast in order to be stable. He further
stated that, despite being the merchandise manager responsible for the basketball goal, he did not
check the ballast level either before or after the accident.
       Viewing this evidence in the light most favorable to DeBusscher, as we must do when
considering the store’s motion for summary judgment, a reasonable inference can be drawn that the
basketball goal fell because its base was not properly secured. A reasonable factfinder could thus
determine that an improperly filled base created a safety hazard within the store that was the
proximate cause of DeBusscher’s injuries.
        In reaching this conclusion, we do not mean to imply that a jury will necessarily find for
DeBusscher. She might or might not prevail on the merits. But we do conclude that the district
court erred in ruling on these facts that no reasonable jury could find in DeBusscher’s favor.
                                      III. CONCLUSION
    For all of the reasons set forth above, we REVERSE the judgment of the district court and
REMAND the case for further proceedings consistent with this opinion.
