Kindermann v LTF Club Operations Company

Monday August 20, 2018

Tony Kostello has had a grant of summary judgment by the United States District Court affirmed in the 6th Circuit Court of Appeals. The minor Plaintiff was injured when his mother, who was carrying him, tripped and fell in the parking lot of the defendant’s health club. Judge David Lawson of the United States District Court – E.D. of Michigan granted summary judgment to the defendant on open and obvious grounds, holding that the mother could have seen and avoided the alleged defect in the defendant’s parking lot. Plaintiff appealed, arguing that the 3 year old child that was injured should not be subjected to the application of the open and obvious doctrine as he was too young to have perceived and avoided the alleged defect. The issue of whether a child could be subject to the open and obvious doctrine under these circumstances had come up in Michigan law on only one prior (albeit somewhat different) situation. That unpublished case involved a child who was injured while being pushed in a shopping cart by his father. The 6th Circuit agreed that the relevant inquiry was whether or not the mother was able to perceive and avoid the danger and therefore affirmed Judge Lawson’s granting of summary judgment.

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