Lela Tompkins v. Crown Corr, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0218p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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12-1857

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Nos. 12-1857/1928

LELA TOMPKINS,

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Plaintiff-Appellant,

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v.

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CROWN CORR, INC.; DETROIT METROPOLITAN

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AIRPORT, d/b/a Wayne County Airport

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Authority, NORTHWEST AIRLINES; HUNT

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CONSTRUCTION GROUP, INC.; KIMCO

CORPORATION, -

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Defendants-Appellees.

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12-1928

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LELA TOMPKINS,

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Plaintiff-Appellee,

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v. -

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NORTHWEST AIRLINES,

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Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 2:10-cv-10413—Bernard A. Friedman, District Judge.

Argued: June 19, 2013

Decided and Filed: August 9, 2013

Before: KEITH, CLAY, and KETHLEDGE, Circuit Judges.

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Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 2

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COUNSEL

ARGUED: Rick J. Patterson, POTTER, DeAGOSTINO, O’DEA & PATTERSON,

Auburn Hills, Michigan, for Appellant Lela Tompkins in 12-1857 and Appellee Lela

Tompkins in 12-1928. Fred J. Fresard, DYKEMA GOSSETT PLLC, Bloomfield Hills,

Michigan, for Appellee Detroit Metropolitan Airport in 12-1857 and Appellant

Northwest Airlines in 12-1928. Jason R. Mathers, HARVEY KRUSE P.C., Troy,

Michigan, for Appellee Crown Corr in 12-1857. Karen E. Beach, PLUNKETT

COONEY, Bloomfield Hills, Michigan, for Appellee Hunt in 12-1857. Thomas M.

Douglas, LAW OFFICES OF CATHERINE A. GOFRANK, Troy, Michigan, for

Appellee Kimco in 12-1857. ON BRIEF: Rick J. Patterson, Steven M. Potter, Gregory

M. Janks, POTTER, DEAGOSTINO, O’DEA & PATTERSON, Auburn Hills,

Michigan, for Appellant in 12-1857 and Appellee in 12-1928. Fred J. Fresard,

DYKEMA GOSSETT PLLC, Bloomfield Hills, Michigan, Timothy M. Kuhn,

DYKEMA GOSSETT PLLC, Detroit, Michigan, for Appellee Detroit Metropolitan

Airport in 12-1857 and Appellant Northwest Airlines in 12-1928. Jason R. Mathers,

HARVEY KRUSE P.C., Troy, Michigan, for Appellee Crown Corr in 12-1857. Karen

E. Beach, PLUNKETT COONEY, Bloomfield Hills, Michigan, for Appellee Hunt in 12-

1857. Thomas M. Douglas, LAW OFFICES OF CATHERINE A. GOFRANK, Troy,

Michigan, for Appellee Kimco in 12-1857.

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OPINION

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CLAY, Circuit Judge. Plaintiff Lela Tompkins (“Tompkins”) slipped and fell

at Detroit Metropolitan Airport (“DTW”). She filed suit in state court against Northwest

Airlines (“Northwest”) and the Wayne County Airport Authority (“WCAA”), alleging

that they breached their statutory duty to repair and maintain the terminal. Plaintiff also

sued Kimco, the company that provided janitorial services to the terminal. Her claims

against the WCAA were for liability under the public building exception to the

Governmental Tort Liability Act, Mich. Comp. Laws § 691.1406, while her claims

against Northwest and Kimco were based on theories of failure to inspect and maintain

the premises. Defendants Northwest and the WCAA filed a third-party complaint

against Hunt Construction Group (“Hunt”) and Crown Corr (“Crown”), contractors

involved in the construction and maintenance of the airport terminal. After a

Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 3

complicated procedural history, in which the case was removed to federal court,

remanded, and then removed again, all Defendants filed motions for summary judgment.

The district court granted the motions made by Hunt and Crown, denied Northwest’s

motion on procedural grounds, granted WCAA’s motion, and finally, granted Kimco’s

motion. Plaintiff’s suit against Northwest proceeded to trial, where a jury found in her

favor, but awarded only $3,198.80 in damages, of which only $1,439.46 was attributable

to Northwest.

Plaintiff now appeals the award of summary judgment to Hunt, Crown, WCAA,

and Kimco. She also appeals the district court’s denial of her motion for a new trial.1

Northwest appeals the district court’s denial of its motion for summary judgment, as well

as the court’s denial of its motion for a directed verdict. For the reasons set forth in this

opinion, we AFFIRM the judgments of the district court.

BACKGROUND

A. Facts

Plaintiff Lela Tompkins was injured when she slipped and fell at McNamara

Terminal (“McNamara”) in Detroit Metropolitan Airport on December 29, 2005. She

sued Northwest Airlines, whom she alleges had possession and control of McNamara at

the time of the incident. The instant appeal addresses several claims related to that

underlying lawsuit.

First, Plaintiff alleges that the Wayne County Airport Authority, which owns

DTW, breached its statutory duty to repair and maintain McNamara. Next, she alleges

that Kimco, who provided janitorial services at McNamara, was negligent in its

“policing” of the premises. Finally, Plaintiff alleges that Crown and Hunt were negligent

in their installation and repair of a leaky roof at McNamara.

1

Plaintiff’s notice of appeal also included the district court’s denial of her motion for a directed

verdict with respect to Crown and Hunt, but she does not pursue this claim before this Court.

Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 4

Plaintiff sustained injuries to her right elbow, ankle, knee, and back when she

slipped near the escalators that lead to the tram station at McNamara. The alleged cause

of the fall was a large puddle of water on the floor near the down escalator. Plaintiff

went to the Oakwood Hospital emergency room, where she was treated for pain to her

neck, lower back, arm, and hip. After returning to her home in West Palm Beach,

Florida, Plaintiff sought treatment with a chiropractor in January 2006. When that

treatment failed to relieve her pain, her chiropractor referred her to an orthopedist on

January 20, 2006. Over the course of the next few months, Plaintiff underwent several

surgeries and various procedures, but has remained in serious pain, and must use

“orthopedic support devices,” such as a back brace and cane. Plaintiff is uninsured, and

claims outstanding medical bills of nearly $600,000.

McNamara Terminal opened to the public in February 2002. The terminal is part

of Detroit Metropolitan Airport, which is itself owned and administered by the WCAA.

WCAA entered into a lease with Northwest Airlines. Under the terms of the lease,

WCAA remained ultimately responsible for the maintenance and operation of the

terminal, but Northwest actually conducted maintenance and repairs as an agent of the

WCAA. From 2002 until 2008, when Northwest merged with Delta Airlines,2

Northwest was the sole tenant and had possession and control of McNamara. During the

first year of operations at McNamara there were issues involving leaks from the roof

near the tram area. Northwest attempted to get these issues resolved under its warranty

with Crown rather than by hiring another outside contractor.

Defendant Hunt was the general contractor during the building of McNamara.

Hunt was contractually obligated to maintain personnel on-site for three years following

the construction to address ongoing issues and warranty items. Kimco was the

contractor for housekeeping and cleaning at the terminal. Its contract required it to deal

with moisture on the floor of the terminal. Crown was the roofing company that

installed the roof during construction, and which was responsible for roofing repairs.

2

Northwest continued to operate under its own name until the completion of the merger in

January 2010.

Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 5

Immediately after the terminal opened, there were problems with leaks in the roof.

Crown made repeated repairs under the terms of its warranty with Northwest. The leaks

were allegedly caused by a failed lap joint that made the roof vulnerable to rain.

On December 29, 2005, while in transit from Phoenix, Arizona to her home in

West Palm Beach, Florida, Plaintiff had a scheduled lay-over at DTW. After taking the

escalator up to the tram station, she slipped and fell in a puddle, causing injuries to her

arms, legs, and back. Gwendolyn Chmiel, who would later testify at trial, went to assist

Plaintiff. Chmiel testified that she could not see the puddle until she was four or five

feet away. Plaintiff was then taken to the hospital, where X-rays did not reveal any

severe injuries. As noted above, she also received treatment in Florida. She then filed

suit in Michigan state court.

B. Procedural History

Plaintiff filed suit against Northwest, WCAA, and Kimco in December 2005 in

Wayne County Circuit Court. WCAA and Northwest then filed third-party complaints

against Hunt and Crown. Crown initially removed the case to federal court, but later

withdrew that removal, and the case was remanded to state court.

In state court, Hunt and Crown filed motions for summary judgment, arguing that

the claims against them were barred by Michigan’s statute of repose, Mich. Comp. Laws

§ 600.5839, which exempts contractors from liability in some actions after a period of

time. Those motions were granted. Northwest moved the court for summary judgment,

arguing that the negligence claims were time-barred based on the contract of carriage

between it and Plaintiff. That motion was denied. WCAA and Northwest then filed

notices against Hunt and Crown alleging non-party fault, and Plaintiff filed an amended

complaint listing Hunt and Crown as defendants. Crown then removed the case to the

United States District Court for the Eastern District of Michigan.

All Defendants moved the district court for summary judgment at the close of

discovery. The court denied Northwest’s motion, finding that 28 U.S.C. § 1450 and

Federal Rule of Civil Procedure 60(b) precluded it. The court granted the other motions

Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 6

on the merits.3 The court thus allowed Plaintiff to proceed to trial against Northwest.

On March 29, 2012, a jury returned a verdict in favor of Plaintiff against Northwest, and

apportioned fault as: 45% to Northwest, 30% to (non-party to the trial) Crown, and 25%

to Plaintiff. The jury awarded Plaintiff $3,198.80, which was the Plaintiff’s cost of

treatment in Michigan, and the court entered a judgment awarding $1,439.46 in damages

to Plaintiff from Northwest.

Plaintiff now appeals the denial of her motion for a new trial pursuant to Federal

Rule of Civil Procedure 59, as well as the grants of summary judgment to WCAA,

Kimco, Crown, and Hunt. Northwest appeals the district court’s denials of its motions

for summary judgment and a directed verdict.

DISCUSSION

I. Plaintiff’s Motion for a New Trial

A. Standard of Review

Following a jury trial, a party may move for a new trial pursuant to Federal Rule

of Civil Procedure 59. When a court refuses to grant such a motion, this Court reviews

that decision for abuse of discretion. Mike’s Train House, Inc. v. Lionel, LLC, 472 F.3d

398, 405 (6th Cir. 2006); In re Brown, 342 F.3d 620, 627 (6th Cir. 2003). “[This Court]

‘will find an abuse of discretion only when the Court has a definite and firm conviction

that the trial court committed a clear error of judgment.’” Mike’s Train House, 472 F.3d

at 405 (quoting Engebretsen v. Fairchild Aircraft Corp., 21 F.3d 721, 728 (6th Cir.

1994)).

B. Analysis

Federal Rule of Civil Procedure 59 states that a court may “grant a new trial on

all or some of the issues . . . after a jury trial, for any reason for which a new trial has

heretofore been granted in an action at law in federal court.” Fed. R. Civ. P. 59(a). This

3

The reasoning of the court for each of these motions is addressed below.

Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 7

has historically required a court to find that “a jury has reached a seriously erroneous

result as evidenced by: (1) the verdict being against the weight of the evidence; (2) the

damages being excessive; or (3) the trial being unfair to the moving party in some

fashion, i.e., the proceedings being influenced by prejudice or bias.” Holmes v. City of

Massillon, Ohio, 78 F.3d 1041, 1045–46 (6th Cir. 1996) (internal quotation marks

omitted) (citing Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940)). In the

instant case, Plaintiff alleges that Defense counsel engaged in persistent misconduct, by

repeatedly referring to the “south Florida litigation machine.” (Pl.’s Br. at 21.) These

references, Plaintiff claims, led the jury to only award her damages for medical costs

incurred in Michigan. Plaintiff further claims that the jury’s verdict on damages was

against the weight of the evidence.

1. Alleged Misconduct

In order for a party to prevail on an appeal of a district court’s denial of a Rule

59 motion based on a theory of opposing counsel’s misconduct, that party must show

that the district court abused its discretion, and must make a “concrete showing” that the

conduct “consistently permeated” the trial such that the party was unfairly prejudiced by

the misconduct. Sutkiewicz v. Monroe Cnty. Sheriff, 110 F. 3d 352, 361 (6th Cir. 1997).

To determine whether there is a reasonable probability that the conduct affected the

verdict, an appellate court must examine “the totality of the circumstances, including the

nature of the comments, their frequency, their possible relevancy to the real issues before

the jury, the manner in which the parties and the court treated the comments, the strength

of the case . . . and the verdict itself.” City of Cleveland v. Peter Kiewit Sons’ Co., 624

F.2d 749, 756 (6th Cir. 1980). The power to set aside a verdict on the basis of

misconduct “should be sparingly exercised on appeal.” Farley v. Country Coach, Inc.,

403 F. App’x 973, 982 (6th Cir. 2010) (quoting Kiewit, 624 F.2d at 756) (internal

quotation marks omitted).

In this case, there is no significant evidence of such prejudice. First, the remarks

that Plaintiff complains of must be viewed against the entirety of the record. The

remarks were scattered and isolated. In addition, the remarks were not directed at

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creating “extraneous matters . . . or unrelated subjects,” id., but were directly tied to

Defendant’s attempt to discredit Plaintiff’s motives and proof of injury. For example,

in his opening statement, defense counsel made a statement regarding Plaintiff’s

solicitation of a lawyer prior to seeing a doctor. This statement was not objected to, and

was supported by later evidence. Furthermore, the claims that defense counsel made

were directed specifically to the measure of damages, as he alleged that the reason the

calculations were so high was a result of doctors attempting to get fees. As the damages

calculation was a key issue in the trial, it cannot be characterized as an extraneous

matter. In addition, evidence at trial suggested that the proceeds of the lawsuit would

benefit doctors, rather than Plaintiff. Even to the extent that this evidence was

prejudicial, it was fairly isolated, and when it was objected to, the court sustained the

objection and counsel moved on.

Plaintiff presents no direct evidence as to how these remarks prejudiced the jury.

The jury returned a verdict in favor of Plaintiff; the primary reason for appealing appears

to be dissatisfaction with the damages award. Finally, the strongest argument for

prejudice is that an exhibit list was inadvertently given to the jury. While deliberating,

the jury asked to see exhibits that had not been introduced at trial. The court realized

that defense counsel had included a list of all of its exhibits with the list of actually

introduced evidence. The jury never saw the other exhibits, and a curative instruction

was given. The court found that this inclusion was an accident, and used the very strong

curative instruction that Plaintiff requested. The determination of whether or not a jury

was in fact prejudiced is usually left to the discretion of the district court, because the

district court has an advantageous viewpoint with which to decide that question relative

to an appellate court, which is dependent on the record alone. Balsley v. LFP, Inc., 691

F.3d 747, 761–62 (6th Cir. 2012) (quoting Kiewit, 624 F. 2d at 756).

In light of both this Court’s deferential review, and the totality of the

circumstances, including the jury’s verdict in favor of Plaintiff, there is no basis upon

which to disturb the district court’s decision not to grant a new trial.

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2. The Weight of the Evidence

When a party seeks to have a court set aside a verdict on the grounds of the

weight of the evidence, the court may only do so “if [the verdict] is against the clear

weight of the evidence as a whole.” In re Brown, 342 F.3d at 627 (6th Cir. 2003)

(internal quotation marks and citations omitted). Courts can only set aside the verdict

with respect to damages if the verdict could not have been reasonably reached. Bell v.

Johnson, 404 F.3d 997, 1003 (6th Cir. 2005); Acuity Mut. Ins. Co. v. Frye, 471 F. App’x

431, 435 (6th Cir. 2012) (“A trial court may not grant a new trial on the ground of

insufficient damages unless the jury verdict is one that could not reasonably have been

reached.”)

Plaintiff was the prevailing party at trial. Her claim for a new trial is based on

the damages calculation by the jury, which awarded her $3,198.80, the amount of

medical expenditure in Michigan. Without citing any cases, Plaintiff asserts that some

of the evidence could have been found to entitle her to a higher damages award. But that

is specifically the kind of judgment better left to the jury. At trial, there was evidence

presented as to Plaintiff’s treatments in Florida, as well as expert testimony based on

review of her medical records, which could have supported the conclusion that her

injuries were not severe, or that the injuries for which causation was proven were

adequately compensated by an award based on her care in Michigan. Even if Plaintiff

raised this issue directly, there is no clear error in the judgment. And because this issue

is presented as an appeal of a Rule 59 motion, this Court’s review is even more

deferential. Accordingly, Plaintiff’s challenge to the district court’s ruling is denied, and

the judgment affirmed.

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II. The District Court’s Award of Summary Judgment to Defendants WCAA,

Kimco, Crown, and Hunt

A. Standard of Review

A district court’s grant of summary judgment is reviewed de novo. Back v.

Nestle USA, Inc., 694 F.3d 571, 575 (6th Cir. 2012) (citing Carter v. Univ. of Toledo,

349 F.3d 269, 272 (6th Cir. 2003)); Baggs v. Eagle-Picher Indus., 957 F.2d 268, 271

(6th Cir. 1992). Summary judgment is appropriate “if 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).4 This Court views all evidence in the light most

favorable to the nonmoving party, and draws all reasonable inferences in its favor.

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

Hoover v. Walsh, 682 F.3d 481, 492 (6th Cir. 2012) (citing Bazzi v. City of Dearborn,

658 F.3d 598, 602 (6th Cir. 2011)); Bletz v. Gribble, 641 F.3d 743, 757 (6th Cir. 2011)

(“In reviewing the district court’s decision, we view all facts in a light most favorable

to the non-moving party and draw inferences in favor of the non-movant.”).

However, “[o]n a motion for summary judgment, facts must be viewed in the

light most favorable to the nonmoving party only if there is a genuine dispute as to those

facts.” Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Scott v. Harris, 550 U.S.

372, 380 (2007)) (internal quotation marks omitted). “[T]he mere existence of some

alleged factual dispute between the parties will not defeat an otherwise properly

supported motion for summary judgment . . . .” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 247–48 (1986) (emphasis in original). “The pivotal question is whether the

party bearing the burden of proof has presented a jury question as to each element of its

case.” Hartsel v. Keys, 87 F.3d 795, 799 (6th Cir. 1996) (citing Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986)).

4

Although this Court has jurisdiction of this case as a result of diversity of citizenship, 28 U.S.C.

§ 1332, and the applicable substantive law is therefore the state law of Michigan, see Erie R.R. Co. v.

Tompkins, 304 U.S. 64, 79 (1938), a federal court sitting in diversity uses the federal standard for summary

judgment. See Gafford v. Gen. Elec. Co., 997 F.2d 150, 165 (6th Cir. 1993), abrogated on other grounds

by Hertz Corp. v. Friend, — U.S. —, 130 S. Ct. 110 (2009); accord Beat ex rel. Putnam v. Walgreen Co.,

408 F. App’x 898, 901 n.2 (6th Cir. 2010) (quoting Gafford, 997 F.2d at 165–66).

Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 11

B. Analysis

On appeal, Plaintiff challenges the grant of summary judgment to various

counter-parties. We address each of these challenges in turn.

1. Wayne County Airport Authority

WCAA moved the district court for summary judgment on Plaintiff’s claims

against it. The district court granted summary judgment to WCAA on October 12, 2011.

First, it found that under Michigan’s Governmental Tort Liability Act, Mich. Comp.

Laws § 691.1401 et seq., (“GTLA”), the WCAA was not immune from liability simply

because of its status as a governmental agency or instrumentality.

Under that act, governmental agencies are generally immune from tort liability

when engaged in a governmental function. Mich. Comp. Laws § 691.1407(1).

“Governmental function” is defined as “an activity that is expressly or impliedly

mandated or authorized by constitution, statute, local charter or ordinance, or other law,”

id. § 691.1401(b), and the construction and maintenance of an airport is specifically

listed as a governmental action elsewhere in the Michigan Compiled Laws. Mich. Comp.

Laws § 259.132 (“[T]he acquisition, establishment, construction, enlargement,

improvement, maintenance, equipment and operation of airports, landing fields and other

aeronautical facilities . . . are hereby declared to be public, governmental . . .

functions . . . . ”).

However, under the GTLA, there is a public building exception. This exception

requires governmental agencies “to repair and maintain public buildings under their

control.” Mich. Comp. Laws § 691.1406. The district court found that the WCAA fit

within this exception, and therefore the WCAA was not immune from tort liability as

owner of McNamara. But the court still granted summary judgment, finding that while

the government building exception exposed the WCAA to liability under the GTLA, the

nature of the claim shielded it from liability under the same act.

Under the GTLA, agencies operating government buildings, even when exempt

from immunity as a result of their ownership or control over the building, are granted

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immunity when the claim asserted is one of design defects. Renny v. Dep’t of Transp.,

734 N.W.2d 518, 527–28 (Mich. 2007) (“[T]o the extent that plaintiff’s claim is

premised on a design defect of a public building, it is barred by governmental

immunity.”). Accordingly, if Plaintiff’s claim against WCAA was based on a design

defect, then it is barred.

The district court found that Plaintiff’s claim against the WCAA was a design

defect claim, and therefore the WCAA was immune from liability. Specifically, it found

that there was no evidence that the roof was ever damaged; it leaked from the time of its

construction, and there was no evidence of any post-construction damage to the roof

between its construction and the Plaintiff’s injury. Citing Renny, the district court found

that the words “repair” and “maintain,” the terms preferred by Plaintiff in characterizing

her claim, would imply that the building had been restored to its original condition or put

into a sound condition, but that was not the best characterization of the facts. On appeal,

Plaintiff argues that under Tellin v. Forsyth Township, 806 N.W.2d 359 (Mich. Ct. App.

2011), her claim should be characterized as a repair or maintenance claim, rather than

as a design defect claim.

We agree with the district court. Plaintiff’s claims against the WCAA were

based on theories of design defects, and accordingly, are barred by Michigan’s

governmental immunity statute. In Tellin, the Michigan court stated that:

A design defect would appear to consist of a dangerous condition

inherent in the design itself, such as its characteristics, functioning, and

purpose. For example, the accumulation of the snow and ice on the

sidewalk in Renny was not from any malfunction of the roof or problem

with its construction, but was a natural effect of the characteristics of the

new roof design, which was not intended to divert melting snow and ice.

Id. at 367 (footnotes omitted). The court continued to say that, “[i]n contrast, a failure

to repair or maintain appears to consist of something caused by extrinsic circumstances,

such as a malfunction, deterioration, instability, or a fixture that is improperly secured

or otherwise improperly constructed or installed.” Id.

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In this case, there are no extrinsic circumstances that led to the dangerous

condition. The roof itself was improperly designed, and so water leaked into the

terminal. In addition, Plaintiff’s pleadings and the prior course of this litigation indicate

that her claim against WCAA was based on design defects. The acknowledged issue

with the leaks in the roof were not based on construction flaws, such as subpar materials

or incompetent workmanship, but were instead caused by a lap joint that was defectively

designed. This is directly analogous to the roof design issue in Renny. In addition, the

Michigan Supreme Court has instructed courts to construe exceptions to the GTLA

narrowly. Ross v. Consumers Power Co., 363 N.W.2d 641, 659–60 (1984) (per curiam),

overruled on other grounds by In re Bradley Estate, 2013 WL 3866538, — N.W.2d —,

(Mich. July 26, 2013)). Accordingly, WCAA is immune from Plaintiff’s claim based

on governmental immunity, and we affirm the judgment of the district court.

2. Kimco

Defendant Kimco moved the district court for summary judgment, arguing that

it did not owe Plaintiff any duty of care. The district court granted that motion on June

14, 2011, and Plaintiff now appeals. While we find that the district court’s legal analysis

was flawed, we affirm the grant of summary judgment on alternative grounds.

In January 2004, Johnson Controls, Inc. (“Johnson”), the company that managed

McNamara, hired Kimco to provide janitorial services. That contract was extended in

March 2005 to cover the part of the terminal in which Plaintiff was injured. Kimco’s

responsibilities included mopping the floors. While Kimco did not contest that Plaintiff

slipped because of an accumulation of water on the floor, Kimco claims that it did not

owe a duty to Plaintiff, because the scope of its duty was limited by its contract with

Johnson. The district court agreed with this position, and thus granted Kimco’s motion

for summary judgment. This analysis, however, was based on a misunderstanding of

Michigan’s tort law.

Under Michigan law, a claim of negligence has four elements: duty, breach,

damages, and causation, Hill v. Sears, Roebuck & Co., 822 N.W.2d 190, 195–96 (Mich.

Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 14

2012), and summary judgment is appropriate where a defendant can show that he owed

no duty to plaintiff. Smith v. Kowalski, 567 N.W.2d 463, 465 (Mich. Ct. App. 1997).

“A legal duty or obligation may arise by contract, statute, constitution, or common law.”

W. Am. Ins. Co. v. Meridian Mutual Ins. Co., 583 N.W.2d 548, 551 (Mich. Ct. App.

1998.) While Michigan case law makes it clear that one can owe a third party a duty of

care, see Hill, 822 N.W.2d at 207, a defendant is only liable in tort for failing to perform

under a contract when there is a violation of a duty “separate and distinct from the

contractual obligation.” Fultz v. Union-Commerce Assocs., 683 N.W.2d 587, 592 (2004)

(quoting Rinaldo’s Constr. Corp. v. Michigan Bell Tel. Co., 559 N.W.2d 647, 658 (Mich.

1997)) (internal quotation marks and citation omitted).

But “a contracting party’s assumption of contractual obligations does not

extinguish or limit separately existing common-law or statutory tort duties owed to

noncontracting third parties in the performance of the contract.” Loweke v. Ann Arbor

Ceiling & Partition Co., LLC, 809 N.W.2d 553, 555 (Mich. 2011) (clarifying Fultz). In

Loweke, the Michigan court found that:

[C]ourts should not permit the contents of the contract to obscure the

threshold question of whether any independent legal duty to the

noncontracting third party exists, the breach of which could result in tort

liability. Instead, in determining whether the action arises in tort, and

thus whether a separate and distinct duty independent of the contract

exists, the operative question under Fultz is whether the defendant owed

the plaintiff any legal duty that would support a cause of action in tort,

including those duties that are imposed by law.

Id. at 561 (vacating a decision of the lower court that ruled that a subcontractor was not

liable to a third party because of the Michigan Supreme Court’s decision in Fultz).

The district court’s decision was based on the understandable, although

erroneous, reading of Fultz—that no cause of action can exist when the harm is caused

by the subject of the contract—that the Loweke court corrected. Id. at 557 (“Since

Fultz . . . courts have erroneously interpreted this Court’s decisions as rejecting accepted

tort-law principles and creating a legal rule . . . which bars negligence causes of action

on the basis of a lack of duty if a . . . plaintiff alleges a hazard that was the subject of the

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defendant’s contractual obligations with another.”). Kimco was under a common-law

duty to perform its duties at the appropriate standard of care independent of its contract

with Johnson (although its contract with Johnson may have apportioned liability in a

particular way), and the district court erred in granting it summary judgment on those

grounds. Under the reading favored by the district court, Kimco could only ever face

liability for a breach of contract. But that is specifically the rule that Loweke disavowed,

and in any event, it is possible that Kimco could have simultaneously performed under

its contract while behaving in a negligent manner, which indicates that Kimco had an

independent duty to a foreseeable third party apart from its contractual duty to Johnson.

While the facts in this case closely resemble Fultz, where the Michigan Supreme Court

found that a company hired to clean snow from a parking lot could not be liable in tort

to a third party despite its negligent removal of the snow, because it had not created a

new hazard, in Loweke, the Michigan Supreme Court clarified the rule to state that “[a]

defendant—by performing an act under the contract—was not relieved of its preexisting

common-law duty to use ordinary care in order to avoid physical harm to foreseeable

persons and property in the execution of its undertakings.” Id. at 172. It is our

understanding, therefore, that Michigan law permits tort liability arising from physical

(and possibly other types of) harm to foreseeable third parties where there has been

negligent performance of a duty, even if the duty was based on their contractual

responsibility to another.

However, the district court’s error in interpreting Michigan law does not entirely

preclude summary judgment. This Court “may affirm [a grant of summary judgment]

on any grounds supported by the record.” Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d

356, 362 (6th Cir. 2012). Plaintiff has not presented sufficient evidence of negligence

on the part of Kimco. Based on the evidence proffered by Plaintiff, Kimco appears to

have satisfied its duty of care. Although Kimco’s argument that it was monitoring the

terminal, and thus could not have been negligent, is inapposite—the negligence could

have been failure to monitor effectively—Plaintiff has not produced enough evidence

to permit us to find that there was, in fact, negligence. At best, the evidence that

Plaintiff has raised suggests that it was likely that a Kimco employee was on the tram

Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 16

platform at some point after the leak started. But that does not mean that a Kimco

employee would have seen the leak but for possible negligence. Unlike the claim against

Northwest, where Plaintiff produced significant evidence that Northwest was aware of

leaking, and there was a question as to how appropriate its actions were to fix the leaks,

with respect to Kimco, Plaintiff has only produced evidence that suggests that Kimco

was diligent in its monitoring of leaks. Plaintiff needed to do more to survive summary

judgment; for example, Plaintiff might have shown actual knowledge of this leak, or that

Kimco’s monitoring was likely to miss leaks. In the instant case, Plaintiff failed to

produce sufficient evidence that Kimco had failed to do its job in order to create a

material dispute as to fact on this question. Accordingly, we affirm the district court’s

grant of summary judgment on this claim.

3. Crown Corr and Hunt Construction5

Plaintiff initially asserted claims against WCAA, Northwest, and Kimco in

Michigan state court in December 2008. Defendants WCAA and Northwest filed a

third-party complaint against Hunt and Crown in February 2009. The state court granted

Crown’s motion for summary judgment, and dismissed the third-party complaint against

both Crown and Hunt. That dismissal was not appealed. Northwest and WCAA moved

the court to file notices of non-party fault against Crown and Hunt, and that motion was

granted. On December 10, 2009, the state court granted Plaintiff’s motion to amend her

complaint to name Crown and Hunt as defendants. Plaintiff filed her amended complaint

on December 29, 2009. Crown was served with the amended complaint on January 7,

2010, and removed the case to federal court. Northwest and WCAA then filed their

cross-complaint against Crown and Hunt. The district court ruled that the cross-

complaints were barred by Michigan’s statute of repose, a decision which is not

appealed. Crown and Hunt argue that these claims are barred by both the doctrine of

full faith and credit, and that even if found valid under that doctrine, fail under the statute

of repose.

5

The district court initially granted these motions on the basis of timeliness, but after granting

Plaintiff’s motion for reconsideration, ruled that the claims were governed by the repose statute.

Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 17

First, we find that these claims should have been disposed of on the basis of the

state court’s earlier decision. “Under 28 U.S.C. § 1738, federal courts are required to

give the judgments of state courts the same preclusive effect as they are entitled to under

the laws of the state rendering the decision . . . ” Exec. Arts Studio, Inc. v. City of Grand

Rapids, 391 F.3d 783, 795 (6th Cir. 2004). Michigan takes “a broad approach to the

doctrine of res judicata, holding that it bars not only claims already litigated, but also

every claim arising from the same transaction that the parties, exercising reasonable

diligence, could have raised but did not.” Adair v. State, 680 N.W.2d 386, 396 (Mich.

2004).

The claims against Crown and Hunt are not identical to the claims in the third-

party complaint dismissed by the state court. However, as Plaintiff was a party to that

action, and had every opportunity to bring these causes of action in the state court, these

claims should have been dismissed as a matter of res judicata. And even without this

doctrine, Defendants were properly granted summary judgment by the district court.

Hunt was the general contractor hired to build McNamara. Hunt, in turn, hired

Crown to build the roof at McNamara. Crown completed its work and the terminal

became operational in February 2002. Crown’s contract to construct the roof included

a ten-year warranty, and it was occasionally called upon to perform work on the roof.

Until 2005, there were occasional repairs made on the roof.

Under Michigan’s statute of repose, absent gross negligence:

A person shall not maintain an action to recover damages for injury to

property, real or personal, or for bodily injury or wrongful death, arising

out of the defective or unsafe condition of an improvement to real

property, or an action for contribution or indemnity for damages

sustained as a result of such injury, against any state licensed architect or

professional engineer performing or furnishing the design or supervision

of construction of the improvement, or against any contractor making the

improvement, unless the action is commenced within either of the

following periods:

(a) Six years after the time of occupancy of the completed

improvement, use, or acceptance of the improvement

Mich. Comp. Laws § 600.5839.

Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 18

Plaintiff argued below that while the new roof constituted an “improvement,” the

later work (addressing leaks in the roof pursuant to the warranty) did not relate to the

improvement, but constituted repairs, which are not covered by the repose statute.

Crown and Hunt claim that the later work was a continuation of the original work. If

Defendants’ contention is correct, then as the terminal was “accepted” on February 24,

2002, Plaintiff was required to bring her claims prior to February 24, 2008.

The district court found that Crown and Hunt’s continued work related to the

original improvement. Plaintiff asserts that any work done after the occupation or

acceptance of the building cannot be considered a continuation of the work, and thus

cannot start the tolling period for the statute of repose. Plaintiff does not cite any cases

for this proposition. Defendants cite several cases, however, that show that even when

work has continued after the date of acceptance, the earlier date can still control for the

purposes of the statute of repose. See Beauregard-Bezou v. Pierce, 487 N.W.2d 792,

794(Mich. Ct. App. 1992).

To the extent that Plaintiff can show repairs, they were clearly within the scope

of the original contract, and thus a continuation of the work. See Travelers Ins. Co. v.

Guardian Alarm Co. of Michigan, 586 N.W.2d 760, 763–64 (Mich. Ct. App. 1998),

overruled on other grounds by Miller-Davis Co. v. Ahrens Const., Inc., 802 N.W.2d 33

(Mich. 2011), (“Here, the six-year limitation period began to run when Troy Design used

or accepted the alarm system . . . Although Guardian performed additional work on the

alarm system in June 1989, that work was incidental to the earlier installation of the

completed system.”); Male v. Mayotte, Crouse & D’Haene Architects, Inc., 413 N.W.2d

698, 700 (Mich. Ct. App. 1987) (state of repose began to run on date of acceptance, not

when repairs and installation finished). Accordingly, the district court correctly

dismissed Plaintiff’s claims against Crown and Hunt on the basis of the statute of repose.

Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 19

III. Northwest’s Motion for Summary Judgment

Northwest appeals the district court’s denial of its motion for summary judgment,

alleging that Plaintiff’s claim was time-barred because of the terms of the contract of

carriage between the Plaintiff and Defendant. Because this motion is barred by the

application of 28 U.S.C. § 1738, we affirm the judgment of the district court.

A. Standard of Review

While Northwest appeals the denial of summary judgment, a party may not

ordinarily appeal a denial of summary judgment after a full trial on the merits. Ortiz v.

Jordan, — U.S. —, 131 S. Ct. 884, 888–89 (2011); accord Kennedy v. City of

Cincinnati, 483 F. App’x 110, 111 (6th Cir. 2012). However, this Court has held that

“Ortiz leaves open the possibility that cases ‘involv[ing] . . . [only] disputes about the

substance and clarity of pre-existing law’ may still be considered . . . ” Nolfi v. Ohio

Kentucky Oil Corp., 675 F.3d 538, 545 (6th Cir. 2012) (quoting Ortiz, 131 S. Ct. at 892)

(alteration in original). Therefore, this Court may treat Northwest’s appeal as if it were

made under Rule 50, which is treated under the same standard as a motion for summary

judgment pursuant to Rule 56. Id. at 545.

B. Analysis

The district court denied Northwest’s motion for summary judgment on this basis

in a decision in February 2011. In that decision, the district court held that this issue had

been decided by the state court, and that Defendant’s challenge to that decision was

untimely. Accordingly, it could not revisit the decision pursuant to 28 U.S.C. § 1450.

Treating Northwest’s motion as a motion for relief under Federal Rule of Civil

Procedure 60(b), the district court found that the state court’s denial of the motion was

not a “manifest injustice,” and thus it would not revisit the claim as decided by the state

court.

The district court was correct to find that Northwest’s motion for reconsideration

of the state court order was untimely. The state court entered its judgment denying

summary judgment on time-bar grounds on September 3, 2009. The case was removed

Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 20

to federal court on January 29, 2010. When the case was removed, all existing orders

and decisions were federalized. See Semtek Intern. Inc. v. Lockheed Martin Corp., 531

U.S. 497, 508–09 (2001). The state court orders are thus treated as if they were the

orders of the district court. Under Local Rule 7.1(h)(1) of the Eastern District of

Michigan, a motion for reconsideration must be filed within fourteen days, and under the

Federal Rule of Civil Procedure 60(c), the motion must be made within “a reasonable

time.” Northwest filed its motion on December 16, 2010, more than a year after the state

court disposition was entered, and over ten months after the case had been removed to

federal court. Accordingly, the district court was correct to find that the motion was

untimely.

Even had the motion for reconsideration been timely, the issue at stake had been

disposed of by the state court, and Defendant is prevented from re-litigating the issue in

federal court. As noted above, Michigan gives a broad construction to preclusion

doctrines, and the mere assertion that the state court’s decision was erroneous does not

give rise to a claim in federal court.

Accordingly, we affirm the judgment of the district court.

IV. Northwest’s Motion for a Direct Verdict

Northwest argues that the district court should have awarded it a directed verdict6

because Northwest had no notice of the condition, and in the alternative, because the

puddle was open and obvious. We reject both claims.

A. Standard of Review

This Court reviews the denial of a motion for a directed verdict de novo. United

States v. Alpine Indus., Inc., 352 F.3d 1017, 1022 (6th Cir. 2003). “In diversity cases,

when a Rule 50 motion for judgment as a matter of law is based on a challenge to the

sufficiency of the evidence, this Court applies the standard of review used by the courts

6

Northwest originally brought this claim as a summary judgment issue, but now appeals

(appropriately) on directed verdict grounds.

Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 21

of the state whose substantive law governs the action.” Kusens v. Pascal Co., 448 F.3d

349, 360 (6th Cir. 2006); accord Betts v. Costco Wholesale Corp., 558 F.3d 461, 466

(6th Cir. 2009).7 In Michigan, the equivalent motion is reviewed de novo. Betts, 558

F.3d at 467. As with summary judgment, this Court must view all evidence in the light

most favorable to the non-moving party. Id.

B. Analysis

First, there was sufficient evidence for a jury to conclude that Northwest had

constructive notice of the condition. See Bowling v. Wal-Mart Stores, Inc., 233 F. App’x

460, 468 (6th Cir. 2007) (finding no notice). While Northwest asserts that Bowling is

directly on point, in Bowling, the issue was about a single leak. This Court support the

district court’s finding that nothing in that case indicated “that Defendant’s employees

had neglected to make regular inspections, or that such leaks recurred with sufficient

frequency to place Defendant on constructive notice of the existence of the puddle.” Id.

at 467. In this case, leaks were frequent; in fact, much of Northwest’s defense was based

on the existence of leaks going back to the opening of the terminal. See also Herteg v.

Somerset Collection GP, Inc., 2002 WL 31105000, at *5 (Mich. Ct. App. Sept. 20, 2002)

(“We believe that it is reasonable to infer from this evidence that given the advance

warning of leaking problems, the mall’s failure to inspect and maintain this area

constituted active negligence that caused the dangerous condition, i.e., the puddle of

water”). Accordingly, a reasonable jury could have concluded that regardless of the

specific puddle, Northwest was aware of the potential for leaks, and should have taken

more care to prevent them. Furthermore, this was an appropriate question for a jury to

resolve. See, e.g., Clark v. Kmart Corp., 634 N.W.2d 347, 348–49 (Mich. 2001) (“This

case squarely presents the question whether the evidence would permit a jury to find that

the dangerous condition was present long enough that the defendant should have known

of it.”).

7

While Northwest does not refer to its claim as a challenge based on the sufficiency of the

evidence, its arguments address questions of sufficiency because they are directed at what a reasonable

juror could have found based on the evidence presented.

Nos. 12-1857/1928 Tompkins v. Crown Corr, Inc., et al. Page 22

Northwest next claims that the condition was “open and obvious,” which would

preclude liability on a negligence theory. “[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. However, this duty does not

generally encompass removal of open and obvious dangers.” Lugo v. Ameritech Corp.,

Inc., 629 N.W.2d 384, 386 (Mich. 2001) (internal citation omitted). Whether a hazard

is open and obvious is measured against an objective standard of reasonability.

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

The jury heard testimony from Plaintiff that she was paying attention, but did not

see the puddle because the floor was glossy. Another witness testified that as she walked

over to assist Plaintiff after she fell, she did not see the water until she was very close

to it. Finally, a third witness, who had helped install the flooring at the terminal testified

that the floor had a gloss finish that would make it hard to see the water because the floor

had the same appearance regardless of whether it was wet or dry. Based on this

testimony, a jury could reasonably have found that the hazard was not open or obvious.

Furthermore, in a recent case, this Court has held that a spill at DTW was not open or

obvious as a matter of law. Matteson v. Northwest Airlines, Inc., 495 F. App’x 689,

693–94 (6th Cir. 2012) (reversing district court’s grant of summary judgment to

defendant and finding a genuine dispute as to material issue on this precise question).

Therefore, this question was a matter of fact, which the jury resolved in favor of

Plaintiff, and will not be reversed by this Court.

Accordingly, the district court’s refusal to grant a directed verdict is affirmed.

CONCLUSION

For the foregoing reasons, we AFFIRM the judgments of the district court.