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Tompkins v. Crown Corr, Inc.

United States Court of Appeals, Sixth Circuit

August 9, 2013

Lela Tompkins, Plaintiff-Appellant,
v.
Crown Corr, Inc.; Detroit Metropolitan Airport, d/b/a Wayne County Airport Authority, Northwest Airlines; Hunt Construction Group, Inc.; Kimco Corporation, Defendants-Appellees. Lela Tompkins, Plaintiff-Appellee,
v.
Northwest Airlines, Defendant-Appellant.

Argued: June 19, 2013

N 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:

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.

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

OPINION

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 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.

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. 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 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, ...


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