               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 05a0598n.06
                            Filed: July 14, 2005

                                          No. 04-1978

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


MELVIN D. WILLIAMS,                    )
                                       )                ON APPEAL FROM THE
      Plaintiff-Appellant,             )                UNITED STATES DISTRICT
                                       )                COURT FOR THE EASTERN
v.                                     )                DISTRICT OF MICHIGAN
                                       )
TOYS “R” US,                           )
                                       )                       OPINION
      Defendant-Appellee.              )
_______________________________________)


Before: MOORE, and COLE, Circuit Judges, and WISEMAN,* District Judge.

       KAREN NELSON MOORE, Circuit Judge. Plaintiff-Appellant Melvin D. Williams

(“Williams”) appeals from the district court’s order granting summary judgment in favor of

Defendant-Appellee Toys “R” Us on Williams’s claims of liability for personal injury in this

diversity of citizenship action. Williams also contends that the district court erred in applying

Michigan law rather than Pennsylvania law. For the reasons stated below, we AFFIRM the district

court’s judgment.

                                     I. BACKGROUND

       On March 9, 2003, Williams visited a Toys “R” Us store in Monroeville, Pennsylvania with

his wife and two grandsons. The group browsed the aisles of the store and selected several toys



       *
       The Honorable Thomas A. Wiseman, United States District Judge for the Middle District
of Tennessee, sitting by designation.
which Williams told his grandchildren he would later purchase for them as birthday presents. Some

time after the presents had been selected, the group headed towards the store’s restrooms.

Williams’s grandchildren ran ahead, while Williams and his wife followed behind. Williams and

his wife then turned down an aisle which Williams thought would lead to the restrooms. After

turning down the aisle Williams realized that it was the incorrect aisle. Williams then started to

walk back out of the aisle. As he did so, Williams stepped on a skateboard that had been left on the

floor in the center of the aisle.1 The skateboard slid out from under Williams, causing him to fall

forward onto the floor. As a result of the fall, Williams fractured two ribs, broke a tooth, and injured

his mouth and right hand. Following the accident, Williams attempted to use a store telephone to

contact the store manager but was unable to contact him. Williams also informed two employees

of his fall before he left the store. Nine days later, Williams telephoned the store and reported the

accident to the store manager. An accident report was then completed by the store manager.

       On March 28, 2003, Williams filed suit pro se against the defendant in district court.

Following the completion of discovery, the defendant filed a motion for summary judgment. A

magistrate judge held a hearing on the motion and ultimately recommended that the district court

grant the defendant’s motion for summary judgment. The district court agreed with the magistrate

judge’s recommendation and entered judgment in favor of the defendant. Williams then filed this

timely appeal.



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         Williams’s description of the accident has changed during litigation. In his complaint,
Williams indicated that the accident occurred after he had turned around to exit the aisle. In his
deposition, however, Williams seemed to indicate that the accident occurred as he initially walked
down the aisle. It is unnecessary for us to determine which is the accurate version of Williams’s
accident as this factual discrepancy does not create a genuine issue of material fact. Under either
set of facts, the district court properly granted the defendant’s motion for summary judgment.

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                                          II. ANALYSIS

A. Summary Judgment

       We review de novo a grant of summary judgment. Barnhart v. Pickrel, Schaeffer & Ebeling

Co., 12 F.3d 1382, 1388 (6th Cir. 1993). Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party has the burden of

establishing that there are no genuine issues of material fact, which may be accomplished by

demonstrating that the nonmoving party lacks evidence to support an essential element of its case.

Barnhart, 12 F.3d at 1388-89 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).

       1. Invitor Liability Under Michigan Law

       In order to establish a negligence claim, Michigan law requires a plaintiff to prove four

elements: (1) duty, (2) breach, (3) injury, and (4) proximate cause. Riddle v. McLouth Steel Prods.

Corp., 485 N.W.2d 676, 681 n.10 (Mich. 1992) (“The elements of a cause of action in negligence

are as follows: 1. That the defendant owed a legal duty to the plaintiff; 2. That the defendant

breached or violated the legal duty it owed to the plaintiff; 3. That the plaintiff suffered damages;

and 4. That the defendant's breach of duty was a proximate cause of the damages suffered by the

plaintiff.”). In this case the legal duty of care owed by Toys “R” Us to Williams is that which a

business owner owes a business invitee. That duty of care is only breached where a business owner

creates a dangerous condition, or where the business owner knew or should have known about the

unsafe condition’s existence. Whitmore v. Sears, Roebuck & Co., 279 N.W.2d 318, 321 (Mich. Ct.

App. 1979). Moreover, even if a business owner is aware of an unsafe condition, the owner has no


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duty to warn invitees of the condition’s existence if the condition is: (1) open and obvious; and (2)

not unreasonably dangerous. See Lugo v. Ameritech Corp., 629 N.W.2d 384, 386 (Mich. 2001)

(“[T]he general rule is that a premises possessor is not required to protect an invitee from open and

obvious dangers, but, if special aspects of a condition make even an open and obvious risk

unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to

protect invitees from that risk.”).

       In this case, Williams argues that Toys “R” Us had actual or constructive knowledge of the

unsafe skateboard and that the condition was not open and obvious. Alternatively, Williams argues

that even if the skateboard’s existence was open and obvious, there was a special aspect of the

condition that made it so unreasonably dangerous that Toys “R” Us had a duty to protect him from

the condition. Because we agree with the district court that no genuine question of material fact

exists as to whether the skateboard’s existence in the aisle presented an open and obvious condition

or whether the condition was unreasonably dangerous, we conclude that the district court properly

granted summary judgment.

       2. Open and Obvious Doctrine

       As stated above, even if a business invitor knows or should know of a dangerous condition,

generally an invitor has no duty to warn an invitee of the condition if it is open and obvious. An

open and obvious danger is a danger that is visible, well-known, or discernible by casual inspection.

Glittenberg v. Doughboy Recreational Indus., 491 N.W.2d 208, 214 (Mich. 1992). Under Michigan

law, the test for whether a condition is open and obvious is objective, not subjective. Thus, we do

not ask whether the skateboard was open and obvious to Williams, but rather whether a reasonable

person would have discovered the danger on casual inspection. Novotney v. Burger King Corp., 499


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N.W.2d 379, 381 (Mich. Ct. App. 1993) (stating that “it is not relevant to the disposition of this

matter whether plaintiff actually saw the [condition]. Rather, it is necessary for plaintiffs, to have

their claim survive the motion for summary disposition, to come forth with sufficient evidence to

create a genuine issue of material fact that an ordinary user upon casual inspection could not have

discovered the existence of the [condition]”).

        If a condition is such that an average person would have known of the condition’s existence,

then an invitee may recover from an invitor only “if special aspects of a condition make even an

open and obvious risk unreasonably dangerous.” Lugo, 629 N.W.2d at 386. A duty of care may

exist where a special aspect of the condition, such as its “character, location or surrounding

conditions,” indicates that the condition presents an unreasonable danger despite its open and

obvious nature. Bertrand v. Alan Ford, Inc., 537 N.W.2d 185, 189 (Mich. 1995) (internal quotation

marks and citation omitted). As the Michigan Supreme Court noted in Bertrand:

        [I]f 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.

Id. at 187.

        Based on the evidence in this case, we are persuaded that Toys “R” Us did not breach its duty

of care because the skateboard was an open and obvious condition which was not unreasonably

dangerous to invitees. As the magistrate judge accurately noted: “A skateboard is an object of

considerable size. These devices are ubiquitous, and their propensity to roll easily under the weight

of a human body is patent.” Joint Appendix (“J.A.”) at 77-78 (Report and Recommendation at 10-


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11). Therefore, provided that the skateboard was in plain view, an ordinary person would be aware

that stepping onto the skateboard could cause that person to slip and fall. Moreover, Williams does

not provide evidence that the skateboard was not visible in the aisle of the store. Nor does Williams

show that the lighting in the store was inadequate or that other objects in the aisle prevented him

from observing the skateboard. On the contrary, Williams stated that the skateboard was in the

middle of the aisle and that he was able to see the skateboard after he fell. Williams also concedes

that there were no other toys on the floor in the vicinity of where he fell. Thus, the skateboard in

the aisle would appear to be an open and obvious condition that a reasonable invitee would notice

upon causal inspection.

       Williams’s only additional arguments are that the store’s displays are designed to distract

the consumer’s attention from the floor and that the aisle was narrow. Neither of these arguments

is sufficient to create a genuine issue of material fact as to whether the condition was open and

obvious. First, there is nothing in the evidence to suggest that the aisle was too narrow to permit

Williams to avoid the skateboard if Williams had seen it prior to his fall. In fact, Williams’s wife

testified during her deposition that the aisle was wide enough to permit her and her husband to walk

down the aisle side by side. Moreover, the fact that the store contained attractive displays is

insufficient to create liability in this case. The defendant’s toy displays are precisely the reason why

consumers such as the plaintiff enter Toys “R” Us. Naturally, the defendant designs its displays to

attract the consumer’s attention as a means of marketing its products. This use of marketing tools

does not detract from the consumer’s duty to watch where he or she is going. Nor does it place a

duty upon the defendant to warn consumers like Williams of a skateboard in plain view. We

therefore conclude that the skateboard in this case was an open and obvious condition.


                                                   6
        Additionally, there is no special aspect which makes the skateboard so unreasonably

dangerous as to alter the defendant’s duty of care to Williams. As discussed above, nothing in the

record suggests that Williams’s view of the skateboard was obscured, that there were any other toys

in the aisle, or that there was insufficient lighting to allow an ordinary person to see the skateboard.

Nor was there anything unusual about the circumstances of Williams’s accident. In a toy store it is

unsurprising that a toy, such as a skateboard, would be taken off a shelf by a child or some other

store patron and left in the aisle. Such an occurrence is inevitable and is the very reason that the

ordinary consumer watches where he or she is going in places like toy stores.

        Finally, there is no evidence that the accident was the result of the defendant’s negligence

or that the defendant knew or should have known of the skateboard’s existence prior to Williams’s

fall. In his deposition, Williams admitted that no employees were in the vicinity at the time of his

accident. Moreover, no evidence suggests that the skateboard had been in the aisle for a significant

period of time prior to Williams’s accident such that the defendant should have been aware of its

existence. Williams’s assertion that other skateboard accidents have occurred in other Toys “R” Us

stores around the country does not indicate that the defendant should have known of the skateboard’s

existence on the floor in this incident. As the magistrate judge correctly noted in this case,

“[k]nowledge of previous accidents, in other stores, does nothing to give notice of a stray skateboard

in defendant’s Monroeville store at any particular time.” J.A. at 80 (Report and Recommendation

at 13). Thus, Williams has presented no evidence indicating that there were any special aspects of

the condition in this case that made the skateboard unreasonably dangerous. We therefore conclude

that no genuine issue of material fact exists as to whether the defendant breached the duty of care




                                                   7
it owed to Williams as an invitee. Thus, the district court properly granted the defendant’s motion

for summary judgment.

B. Choice of Law

       Williams’s final argument is that the district court improperly applied Michigan state law

in this case. Because the accident occurred in Pennsylvania, he claims that Pennsylvania tort law

should apply. The district court rejected Williams’s argument on the grounds that it was likely that

Michigan law applied. Alternatively, the district court indicated that it was immaterial whether

Pennsylvania or Michigan law applied, as both states employed the open and obvious doctrine. The

district court also noted that Williams had not raised the issue of the applicability of Pennsylvania

law until filing his objections to the magistrate judge’s report and that Williams had opposed Toys

“R” Us’s motion to transfer the case to Pennsylvania.

       As a federal court sitting in diversity, we apply the choice-of-law provisions of the forum

state. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Michigan’s choice-of-law

rule provides that there is a presumption that Michigan law applies to a case unless there is a rational

reason to displace it. Sutherland v. Kennington Truck Serv., Ltd., 562 N.W.2d 466, 471 (Mich.

1997). The Michigan Supreme Court noted in Sutherland: “In determining whether a rational

reason to displace Michigan law exists, we undertake a two-step analysis. First, we must determine

if any foreign state has an interest in having its law applied. If no state has such an interest, the

presumption that Michigan law will apply cannot be overcome. If a foreign state does have an

interest in having its law applied, we must then determine if Michigan’s interests mandate that

Michigan law be applied, despite the foreign interests.” Id. Under this standard, Michigan courts

will “use another state’s law where the other state has a significant interest and Michigan has only


                                                   8
a minimal interest in the matter.” Hall v. Gen. Motors Corp., 582 N.W.2d 866, 868 (Mich. Ct. App.

1998).

         In this case, Pennsylvania may have an interest in having its law applied because the accident

occurred there. Pennsylvania’s interest, however, does not outweigh Michigan’s competing interest

in protecting its residents from injury and providing just compensation to its citizens. More

importantly, the interests of both states are met by applying Michigan law because Michigan and

Pennsylvania tort law would deal with this case in a nearly identical manner. Both states incorporate

the open and obvious doctrine and thus bar recovery if a dangerous condition would have been

recognized by a reasonable invitee. See Novotney, 499 N.W.2d at 381; Carrender v. Fitterer, 469

A.2d 120, 125 (Pa. 1983). Because there is no conflict of laws (indeed this is a false conflict

situation), we therefore conclude that the district court did not err in applying Michigan state law

in this case.

                                        III. CONCLUSION

         For the reasons stated above, we AFFIRM the district court’s judgment.




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