                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a0929n.06

                                           No. 11-1679

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                   FILED

KATHRYN MATTESON, aka Kathryn Matteson )                                      Aug 21, 2012
Klein,                                 )                                LEONARD GREEN, Clerk
                                       )
       Plaintiff-Appellant,            )
                                       )
v.                                     )                    On Appeal from the United States
                                       )                    District Court for the Eastern
NORTHWEST AIRLINES, INC.,              )                    District of Michigan
                                       )
       Defendant-Appellee.             )




Before:          BOGGS, GILMAN, and DONALD, Circuit Judges.

          BOGGS, Circuit Judge. Kathryn Matteson slipped and fell in Detroit’s Metropolitan Wayne

County Airport. She suffered a broken right hip and sustained damage to her right rotator cuff.

Matteson filed this premises-liability suit, alleging that the party responsible for the terminal,

Northwest Airlines, negligently failed to maintain a safe premises. The district court granted

summary judgment for Northwest, holding that the substance that caused Matteson’s fall was an

open and obvious danger as a matter of law. Because the record, construed in Matteson’s favor,

could support a contrary finding by a reasonable jury, we reverse.

                                                 I

          Matteson was in the Detroit Metropolitan Wayne County Airport on September 17, 2009,

waiting for her flight back to Florida, where she lived. With her were two co-workers, Joe McGrath
No. 11-1679
Matteson v. Northwest Airlines, Inc.

and Eric Meiners. The three arrived at the airport early, spent some time at a “sky club” where

Matteson had a glass of wine, and ate dinner at an airport restaurant. After dinner, they went

together toward their respective gates. McGrath and Meiners walked together, talking. Matteson

walked ahead of them.

        As she proceeded on a tiled area between two moving walkways that she was traversing,

Matteson slipped and fell. “I was just walking looking ahead, looking for my gate,” she testified,

“then all of a sudden I’m down.” Matteson, embarrassed, tried “to jump up,” but “couldn’t move.”

She “looked around to see if [she] fell on something, and there was a clear substance . . . it was thick

. . . [and] clear.” Matteson testified that she did not see the substance before she fell.

        Meiners, McGrath, and Danny Minton, a bystander who saw the fall, came to Matteson’s aid.

None of the three noticed the substance before Matteson fell; all noticed it afterward. Meiners

testified that, when he saw Matteson fall, his “line of sight went right to [Matteson].” About a

second later, when he was a step away from Matteson, his “gaze broadened” and he saw the

substance. McGrath did not see the substance until he “got to Matteson,” but he testified that he

could not have seen it from a distance because Matteson’s body would have blocked his view.

Minton, who was walking toward Matteson from the opposite direction, saw Matteson “step off of

the moving sidewalk . . . . At that time [he] did not notice any spill. However, [he] did see her take

a couple steps . . . and slip on something, fell very hard [sic]. [He] then noticed that there was

something on the ground.”1


       1
         The witnesses’ testimony on the color of the substance is not consistent. Matteson testified
that it was clear; Meiners and McGrath testified that it was light green, like Mountain Dew or

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No. 11-1679
Matteson v. Northwest Airlines, Inc.

       Meiners and McGrath helped Matteson to a chair in a gate-side waiting area, called for

medical assistance, and notified two Northwest Airlines employees of the substance on the ground.

The employees, Meiners testified, said that they already knew about the spill. Minton went to

Matteson, asked if she was hurt, said that he saw what happened, and gave Matteson his contact

information. A woman in a restaurant or retail uniform2 also approached Matteson, expressing her

sympathy and explaining that “she had told someone to clean [the substance] up twenty minutes ago

and they still hadn’t cleaned it up.” The woman in uniform then got paper towels and started to clean

the substance. According to McGrath, the woman “was covering a much bigger area [with paper

towels] than the area of moisture that I saw when I first went to assist [Matteson].” McGrath could,

however, “see that there was moisture” where Matteson fell from ten to fifteen feet away.

Eventually, an airport cleaning crew cleaned the area.

       Matteson filed this suit in the United States District Court for the Eastern District of

Michigan, alleging that Northwest Airlines caused her injuries by its failure to maintain a safe

premises. After discovery, the district court granted summary judgment for Northwest. It reasoned

that, because Meiners, McGrath, and Minton were all able to see the substance after Matteson fell,

the substance qualified as an open-and-obvious hazard under Michigan law. In addition, the



Gatorade; Minton testified that it was light red. For purposes of summary judgment, we must take
the facts in the light most favorable to the non-moving party. Thus, we assume that the substance
was clear, since a clear substance is usually more difficult to see than a substance with color. The
factfinder, of course, is free to reach a different conclusion.
       2
        It does not appear that the woman was a Northwest Airlines employee. Rather, she seems
to have worked for an airport vendor.

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No. 11-1679
Matteson v. Northwest Airlines, Inc.

substance did not pose a special risk of harm that would excuse Matteson’s failing to notice it.

Accordingly, the district court held, Matteson’s suit could not proceed. Matteson appeals.

                                                  II

       Summary judgment is appropriate when “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” FED . R. CIV . P.

56(a). “We review the grant of summary judgment de novo, drawing all reasonable inferences in

favor of the non-moving party.” V & M Star Steel v. Centimark Corp., 678 F.3d 459, 465 (6th Cir.

2012). A fact is material if it “might affect the outcome of the suit under the governing law,”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and a dispute is genuine where “the

record taken as a whole could . . . lead a rational trier of fact to find for the non-moving party.”

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Under this

standard, “[t]he mere existence of a scintilla of evidence in support of the plaintiff’s position will

be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”

Anderson, 477 U.S. at 252. The moving party, however, ultimately bears the burden of proving that

it is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

                                                 III

       “Because jurisdiction in this case is predicated on diversity, the substantive law of the forum

state—here, Michigan—applies.” Armisted v. State Farm Mut. Auto. Ins. Co., 675 F.3d 989, 995

(6th Cir. 2012). Under Michigan law, the party responsible for a premises generally “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.” Lugo v. Ameritech Corp., Inc., 629 N.W.2d 384, 386 (Mich.

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No. 11-1679
Matteson v. Northwest Airlines, Inc.

2001). If, however, a condition is “so obvious that the invitee might reasonably be expected to

discover [it], 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.” Ibid. (quoting Riddle v. McLouth Steel

Prods. Corp., 485 N.W.2d 676, 681 (Mich. 1992)). This principle, known as the open-and-obvious

doctrine, is “an integral part of the definition of [the] duty” that an invitor owes its invitee. Ibid. Put

simply, it means that an invitor has no duty to protect its invitee from an open and obvious danger,

unless that danger has special aspects that make it particularly likely to cause harm.

        A hazard qualifies as “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[.] That

is, is it reasonable to expect that the invitee would discover the danger?” Novotney v. Burger King

Corp., 499 N.W.2d 379, 381 (Mich. Ct. App. 1993). Even an open and obvious hazard, though, can

lead to liability, if there are “special aspects of the open and obvious condition that differentiate the

risk from typical open and obvious risks so as to create an unreasonable risk of harm.” Lugo, 629

N.W.2d at 387 (internal quotation marks omitted). A “special aspect,” for example, might include

an open and obvious hazard that is unavoidable, or a condition that “impose[s] an unreasonably high

risk of severe harm.” Ibid. In our open-and-obvious inquiry, we must “focus on the objective nature

of the condition of the premises at issue, not on the subjective degree of care used by the plaintiff.”

Id. at 390.

        Michigan cases on the open-and-obvious doctrine are not consistent, particularly in their

application of the term “casual inspection.” Novotney was a premises-liability claim by a woman

who fell when she tried to step from the sidewalk in front of a restaurant onto a handicap-access

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No. 11-1679
Matteson v. Northwest Airlines, Inc.

ramp. The Michigan Court of Appeals held that the ramp was an open and obvious danger as a

matter of law because “[t]here is no indication from the record that the ramp was not in plain view

or that, upon casual inspection, an ordinary user could not ascertain the nature of the incline and use

the ramp with safety.” Novotney, 499 N.W.2d at 382.

       In reaching this conclusion, Novotney borrowed from products-liability jurisprudence. It

applied the principle that a manufacturer has no duty to warn a purchaser of a danger that is “readily

apparent or visible upon casual inspection and reasonably expected to be recognized by the average

user of ordinary intelligence.” Glittenberg v. Doughboy Recreational Indus., 491 N.W.2d 208, 210

(Mich. 1992); see also Novotney, 499 N.W.2d at 381.3 The Novotney court emphasized that the

condition of the premises, not the degree of care that the plaintiff exercised, is the lynchpin of the

analysis. Ibid.

       Nine years later, the Michigan Supreme Court decided Lugo. There, the plaintiff suffered

harm when she stepped into a pothole in a parking lot. The court held that the open-and-obvious

doctrine barred the claim because the hazard was “simply . . . a common pothole in a parking lot,”



       3
          The fit between products liability and premises liability, we note, is imperfect. In the
products-liability context, it makes sense to require casual inspection, for a reasonable person will
usually look at—or casually inspect—a product before using it. The same is true of some premises.
An ordinary person, for instance, will look into a swimming pool before she enters the water. Floors,
though, are somewhat different. People in ordinary life do not “inspect” the ground before they
walk, absent some special reason to do so, such as the presence of ice or snow. Of course, a
reasonable person will look where she is going. But there is a critical difference between being
aware of one’s surroundings and looking down at the ground while walking. This observation does
not alter our analysis, since we must take Michigan law as we find it. Still, the incongruity between
inspection of a product before use and inspection of the ground before walking might explain some
of the inconsistency in the cases discussed below.

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No. 11-1679
Matteson v. Northwest Airlines, Inc.

the plaintiff “wasn’t looking down,” and “there was no evidence of special aspects that made the

open and obvious pothole unreasonably dangerous.” Lugo, 629 N.W.2d at 388–90.

       The Lugo court did not explain why the pothole qualified as an open and obvious danger.

Rather, it used the danger at issue, “a common pothole[,] as an example . . . [of a] condition [that]

is open and obvious and thus cannot form the basis of liability against a premises possessor.” Id. at

388.4 The court then moved to the second piece of the open-and-obvious analysis: whether the

pothole that it held was open and obvious had “special aspects” that made it unreasonably dangerous.

Id. at 388–90. Lugo, in short, did not address the meaning of “casual inspection” in the open-and-

obvious context.




       4
          This cursory view seems to stem from the Lugo court’s belief that the pothole was a
sufficiently common occurrence to be directly analogous to a stair that causes a plaintiff to trip and
fall. See Lugo, 629 N.W.2d at 389 (“The present case is substantially similar to Maurer v. Oakland
Co Parks & Recreation Dep’t . . . . [where] the plaintiff slipped and fell on an unmarked cement
step.” (internal quotation marks omitted)). In the context of stairs, the Michigan Supreme Court had
expressly held:

       [B]ecause 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.

Bertrand v. Alan Ford, Inc., 537 N.W.2d 185, 189–90 (Mich. 1995) (footnotes and internal quotation
marks omitted). Thus, in stair cases, the court could normally assume—as the Lugo court did—that
the danger was open and obvious, and focus entirely on the special-aspects analysis.

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No. 11-1679
Matteson v. Northwest Airlines, Inc.

       The later open-and-obvious cases that interpret these principles do not provide consistent

guidance. In Snyder v. Jack’s Fruit Market, No. 188581, 1997 WL 33354547 (Mich. Ct. App. Jan.

17, 1997), for instance, the Michigan Court of Appeals reversed and remanded a trial court’s grant

of summary disposition in favor of the defendant. Snyder, the plaintiff, slipped and fell on a pool

of water approximately the size of a basketball that had collected on the floor in front of a meat

cooler. Id. at *1. The Michigan Court of Appeals held that the danger was not open and obvious.

It reasoned:

       [B]ecause a shopper may be distracted by product displays and promotions, or
       preoccupied with the search for the desired product, or other thoughts related to the
       shopping experience as they walk through the store, it may not be unreasonable for
       a shopper not to notice a puddle of water on the floor. Therefore, we consider it to
       be a question of fact as to whether plaintiff should have discovered the puddle of
       water and realized its danger.

Id. at *2. The Snyder panel, then, considered the entire context of the plaintiff’s shopping

experience; it did not require that she scrutinize the very area where the pool of water collected.

Indeed, Snyder expressly disapproved the latter line of inquiry, writing: “Defendant argues that,

because plaintiff stated that if she had looked she would have seen the puddle before she fell, the

danger was open and obvious and defendant cannot be held liable. We disagree.” Ibid.

       In Brooks v. Bruce Campbell Dodge, Inc., No. 293039, 2010 WL 3719228 (Mich. Ct. App.

Sept. 23, 2010), by contrast, another panel of the Michigan Court of Appeals held that a puddle of

liquid in a car dealership’s service area was open and obvious. Such a puddle, the court reasoned,

“is neither unusual nor unforeseeable . . . [and] if casual inspection is to mean anything, it must at

a minimum mean looking at one’s surroundings, even if momentarily.” Id. at *1. Similarly, the


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No. 11-1679
Matteson v. Northwest Airlines, Inc.

Michigan Court of Appeals held that “the slipping hazard posed by . . . crushed grapes or grape

residue” was an open and obvious danger in Kennedy v. Atlantic & Pacific Tea Co., 737 N.W.2d

179, 181 (Mich. Ct. App. 2007). There, a shopper slipped on fallen grapes. “[H]e and several other

people all noticed the existence of the crushed grapes or grape residue once they actually looked at

the floor.” Id. at 182. This, the court held, “establishe[d] that [Kennedy] would have noticed the

potentially hazardous condition had he been paying attention.” Ibid. That Kennedy was a shopper

in a grocery store replete with distractions did not require a different result, for “mere distractions

are not sufficient to prevent application of the open and obvious danger doctrine.” Id. at 184 (citing

Lugo, 629 N.W.2d at 389).

       Inconsistent though these cases are, we believe that they point to reversal here. First, unlike

a stair step—a special category in Michigan premises-liability law—a clear spill on an airport floor

is not “the type of everyday occurrence that people [regularly] encounter.” See Bertrand, 537

N.W.2d at 189. The danger here is not, therefore, automatically open and obvious like the pothole

in Lugo. See Watts v. Mich. Multi-King, Inc., 804 N.W.2d 569, 573 (Mich. Ct. App. 2010) (“[W]e

reject defendant’s assertion that a wet floor in a restaurant is a common everyday hazard of which

customers are expected to be aware, making it always open and obvious regardless of its visibility.”).

       The question, then, is whether “an average user with ordinary intelligence [would] have been

able to discover the danger and the risk presented upon casual inspection.” Novotney, 499 N.W.2d

at 381. This inquiry, put differently, asks whether it is “reasonable to expect that the invitee would

discover the danger?” Ibid. Here, Matteson and Minton walked toward each other; neither saw the

substance before Matteson slipped. Meiners and McGrath walked just behind Matteson; neither saw

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No. 11-1679
Matteson v. Northwest Airlines, Inc.

the substance before Matteson slipped. And while all of the witnesses were able to see the substance

after Matteson fell, it is not clear whether they could see the substance only because Matteson had

disturbed, and called attention to, the spill by stepping in it, or because the substance was indeed

easily visible. Cf. Kennedy, 737 N.W.2d at 182 (quoting plaintiff’s testimony that “[i]t was no great

mystery. There were grapes on the floor”). McGrath’s testimony that the woman in a restaurant

uniform cleaned an area larger than the area that he believed the spill covered supports the view that

the substance was visible only because Matteson disturbed it.5 The part of the spill that McGrath

was surprised to see her clean may have remained practically invisible, even though the part that

Matteson stepped in was visible because she disturbed it when she slipped and fell. Because none

of the four witnesses saw the substance before Matteson fell, and because it is not clear how much

of the substance was easily visible at the time of her fall, it is not clear that an average person of

ordinary intelligence traversing an airport terminal would have been able to discover the substance

on casual inspection. Therefore, genuine issues of material fact remain. The district court erred by

granting summary judgment to Northwest. See, e.g., Watts, 804 N.W.2d at 573 (reversing grant of

summary disposition in favor of defendant where “[d]efendant . . . offered no testimony or other




       5
          This point, of course, could also support Northwest. If the spill were larger than just the
area that McGrath saw, Northwest might argue, it would have been easier for an ordinary user to see.
Nor does the placement of towels, without more, necessarily indicate the size of the spill, since one
might clean a spill by placing paper towels over an area larger than the spill itself. These, though,
are jury arguments. At this stage, we must draw all reasonable inferences in Matteson’s favor.

                                                - 10 -
No. 11-1679
Matteson v. Northwest Airlines, Inc.

evidence to demonstrate that the floor was visibly, let alone obviously, wet at the time of plaintiff’s

fall or that a reasonable person would have observed that condition on casual observation”).6

                                                  IV

       Matteson has put forward enough evidence suggesting that the substance was not open and

obvious at the time of her accident that a reasonable jury could find in her favor. We REVERSE the

judgment of the district court and REMAND for further proceedings consistent with this opinion




       6
         Because we conclude that the spill was not open and obvious as a matter of law, we do not
address the question whether the spill had any “special aspects” that made it unusually dangerous.

                                                - 11 -
