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Tuesday, August 20, 2019

Mich. SC keeps toilet paper suit alive

By Jessica M. Karmasek | Dec 8, 2010


LANSING, Mich. (Legal Newsline) - The Michigan Supreme Court, in a 4-3 vote, has refused to throw out a woman's lawsuit against a Texas Roadhouse restaurant after one of its toilet paper dispensers allegedly broke her hand.

Sheri Schooley and her husband went to dinner at the popular steak chain on New Year's Eve 2007. She went to the restaurant's restroom, and when she reached for some toilet paper, the dispenser fell down on her hand.

At first, she thought her hand was just bruised. But the pain wouldn't go away. Later, she would find out that she had a broken bone in her hand.

Now, three years later, Schooley contends she still can't use her hand and that she has no grip, both of which prompted her to quit her job as an administrative assistant because she couldn't type.

A county judge and the state appeals court have refused the restaurant's request to dismiss Schooley's suit, and the Michigan Supreme Court has now twice sided with the lower courts.

In the Court's order released Saturday, Chief Justice Marilyn Kelly took issue with the restaurant's inspection of its toilet paper dispensers.

"I agree with the trial court that a reasonable jury could conclude that defendant should have discovered that this defect was dangerous and posed an unreasonable risk of harm. The fact that an unlatched dispenser in the restaurant may not have caused injuries in the past is not dispositive," she wrote.

The general manager, Kelly wrote, specifically testified that checking whether the dispensers were in the "locked" position was not part of the defendant's routine restroom inspections.

"Thus, its inspections would not have satisfied its duty to inspect the dispensers and warn patrons of the danger they posed," the chief justice wrote.

Justice Stephen J. Markman, in a dissent, did not believe Schooley had set forth sufficient evidence to sustain her premises liability action.

"Specifically, she has not shown that an ordinary toilet-paper dispenser constitutes a 'dangerous condition' causing 'an unreasonable risk of harm,' or that defendant did not fulfill its duty to inspect its premises and warn its patrons of any such dangerous condition," he wrote.

Markman wrote that Schooley, following the incident, returned to her table, finished her dinner and "subsequently returned to the restaurant on several occasions before filing suit nearly a year later."

The justice further attacked the woman's action, pointing out that the restaurant's general manager testified in his 20 years of experience that "he had never heard of anyone injuring herself by a toilet paper dispenser."

Markman writes, "The Chief Justice contends that a reasonable jury could find that defendant 'should have discovered' that this defect was both 'dangerous' and posed an 'unreasonable risk of harm.'

"However, she does not indicate how a business or premisesowner is to discover such a 'danger.' Past experience had not led to this discovery, and neither had the exercise of reasonable diligence and common sense. Even assuming this to be a 'dangerous condition,' defendant fulfilled its duty to inspect the premises for this 'hazard' at regular 15-30 minute intervals.

"Thus, as to its duty to warn, how could defendant warn plaintiff of anything when it had discovered no hazard?"

The lower court's ruling, the justice wrote, requires a business "to do the impossible... to predict that a customer might injure herself in a fluke accident caused by an object such as a toilet paper dispenser, and then warn customers of such a 'hazard' despite the fact that its reasonable inspection efforts have disclosed no hazard at all."

Markman questioned his fellow justices' decision, writing "it is hard to interpret the actions of the majority as anything other than a step toward the imposition of strict liability upon businesses or premises owners for accidents occurring upon their property."

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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