                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0059n.06

                                          No. 13-1546                                FILED
                                                                                Jan 23, 2014
                          UNITED STATES COURT OF APPEALS
                                                                            DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


BAMBE CAE JOHNSON,                                      )
                                                        )
       Plaintiff-Appellant,                             )
                                                        )
v.                                                      )    ON APPEAL FROM THE UNITED
                                                        )    STATES DISTRICT COURT FOR
MEIJER, INC.,                                           )    THE WESTERN DISTRICT OF
                                                        )    MICHIGAN
       Defendant-Appellee.                              )
                                                        )
                                                        )
                                                        )


       Before: SUHRHEINRICH, SILER, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. While Bambe Cae Johnson was shopping at Meijer, she

accidentally—one might say negligently—rammed her shopping cart into a fire extinguisher

mounted waist-high. The extinguisher fell and injured her toe. Johnson sued Meijer for negligence.

Meijer moved for summary judgment, which the magistrate judge granted. We affirm.

       In August 2010, Bambe Cae Johnson was pushing a shopping cart through the aisles at a

Meijer store in Battle Creek, Michigan. Her granddaughter’s car seat was in the front of the cart,

partially obstructing Johnson’s view. At some point, Johnson continued walking while she turned

her head to look behind her. The handle of her shopping cart struck a fire extinguisher mounted in

plain view on a column. The impact caused the extinguisher to fall, injuring Johnson’s toe.
No. 13-1546
Johnson v. Meijer

          We review de novo the district court’s grant of summary judgment. Lexicon, Inc. v. Safeco

Ins. Co. of Am., Inc., 436 F.3d 662, 667 (6th Cir. 2006). As in most states, a negligence claim in

Michigan has four elements: duty, breach, causation, damages. Case v. Consumers Power Co., 615

N.W.2d 17, 20 (Mich. 2000). At issue here is whether Johnson presented evidence that would allow

a jury to find that Meijer breached a duty to her.

          Landowners owe invitees a duty to protect against dangerous conditions. See Bertrand v.

Alan Ford, Inc., 537 N.W.2d 185, 186 (Mich. 1995). But they do not owe a duty as to dangers that

are open and obvious. Lugo v. Ameritech Corp, Inc., 629 N.W.2d 384, 386 (Mich. 2001). A danger

is open and obvious if “an average user with ordinary intelligence would [be] able to discover the

danger and the risk presented upon casual inspection.” Corey v. Davenport College of Business, 649

N.W.2d 392, 394 (Mich. App. 2002) (quoting Joyce v. Rubin, 642 N.W.2d 360, 364 (Mich. App.

2002)).

          Here, it is undisputed that the fire extinguisher was mounted in plain view. And we agree

with the district court that the risk that the extinguisher might dislodge if struck by a loaded

shopping cart—thereby inducing gravity to drop the extinguisher to the floor—was open and

obvious. That Johnson was looking away makes no difference; the standard is objective. See

Novotney v. Burger King Corp., 499 N.W.2d 379, 381 (Mich. App. 1993). Meijer therefore owed

Johnson no duty to protect Johnson from the risk that the extinguisher might dislodge if she struck

it with her cart.

          Moreover, Johnson has no evidence—direct or circumstantial—that would allow a jury to

find that Meijer was somehow negligent in the manner it secured the extinguisher. To the contrary,


                                                 -2-
No. 13-1546
Johnson v. Meijer

Julie Dreyer, a Meijer employee at the corporate headquarters, stated in her affidavit that the

extinguisher had been inspected by local building code officials and the fire marshal, and that it

complied with all applicable state and other codes. Nor does the doctrine of res ipsa loquitur apply

here, because—contrary to Johnson’s assertion—it was foreseeable that even a properly secured fire

extinguisher might fall to the floor if struck by a loaded shopping cart. See Rose v. McMahon, 158

N.W.2d 791, 792–93 (Mich. App. 1968). Finally, we entirely agree with the magistrate judge’s

decision to strike Johnson’s expert on reliability grounds, for the reasons stated in the judge’s

thoroughly reasoned opinion.

       The district court’s judgment is affirmed.




                                                -3-
