Order Michigan Supreme Court
Lansing, Michigan
January 29, 2010 Marilyn Kelly,
Chief Justice
139350 & (50)(53) Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
CONNIE COLAIANNI, Robert P. Young, Jr.
Plaintiff-Appellant/ Stephen J. Markman
Cross-Appellee, Diane M. Hathaway,
v SC: 139350 Justices
COA: 282587
STUART FRANKEL DEVELOPMENT Oakland CC: 2003-051245-NO
CORPORATION, INC., and K-F LAND
COMPANY, LLC IV,
Defendants-Appellees/
Cross-Appellants.
_________________________________________/
On order of the Court, the motion for leave to file a brief amicus curiae is
GRANTED. The application for leave to appeal the June 18, 2009 judgment of the Court
of Appeals and the application for leave to appeal as cross-appellants are considered.
The application for leave to appeal is GRANTED. The parties shall address whether
Trentadue v Buckler Automatic Lawn Sprinkler Co, 479 Mich 378 (2007), was correctly
decided. The application for leave to appeal as cross-appellants remains pending.
The Negligence Section of the State Bar of Michigan and the Michigan Defense
Trial Counsel, Inc. are invited to file briefs amicus curiae. Other persons or groups
interested in the determination of the issues presented in this case may move the Court
for permission to file briefs amicus curiae.
YOUNG, J. (dissenting).
I respectfully dissent from the order granting leave in this case and instead would
deny leave to appeal. The majority has accepted plaintiff’s request to consider whether
Trentadue v Buckler Automatic Lawn Sprinkler Co1 was correctly decided. I believe that
case was correctly decided. While it is certainly the prerogative of the Court to
reconsider this case, this order is another instance where the majority seems to retreat
from its previously stated fidelity to stare decisis.2
1
479 Mich 378 (2007).
2
See, e.g., Pohutski v City of Allen Park, 465 Mich 675, 712 (2002) (Kelly, J.,
dissenting) (“[I]f each successive Court, believing its reading is correct and past readings
wrong, rejects precedent, then the law will fluctuate from year to year, rendering our
2
Since the shift in the Court’s philosophical majority in January 2009, the majority
has pointedly sought out precedents only recently decided3 and has
jurisprudence dangerously unstable.”); People v Hawkins, 468 Mich 488, 517-518 (2003)
(Cavanagh, J., dissenting) (“We have overruled our precedents when the intervening
development of the law has ‘removed or weakened the conceptual underpinnings from
the prior decision, or where the later law has rendered the decision irreconcilable with
competing legal doctrines or policies.’ . . . Absent those changes or compelling evidence
bearing on Congress’ original intent . . . our system demands that we adhere to our prior
interpretations of statutes.”), quoting Patterson v McLean Credit Union, 491 US 164, 173
(1989), and Neal v United States, 516 US 284, 295 (1996); Rowland v Washtenaw Co Rd
Comm, 477 Mich 197, 278 (2007) (Cavanagh, J., dissenting) (‘“Under the doctrine of
stare decisis, principles of law deliberately examined and decided by a court of competent
jurisdiction become precedent which should not be lightly departed.’”), quoting People v
Jamieson, 436 Mich 61, 79 (1990); Brown v Manistee Co Rd Comm, 452 Mich 354, 365
(1996) (“[A]bsent the rarest circumstances, we should remain faithful to established
precedent.”); Todd C. Berg, Hathaway attacks, Michigan Lawyers Weekly, October 27,
2008 (“‘People need to know what the law is,’ Hathaway said. ‘I believe in stare decisis.
Something must be drastically wrong for the court to overrule.’”); Lawyers’ election
guide: Judge Diane Marie Hathaway, Michigan Lawyers Weekly, October 30, 2006, in
which Justice Hathaway, then running for a position on the Court of Appeals, was quoted
as saying: “[t]oo many appellate decisions are being decided by judicial activists who are
overturning precedent.”
3
See, e.g., University of Michigan Regents v Titan Ins Co, 484 Mich 852 (2009)
(directing the parties to consider whether Cameron v ACIA, 476 Mich 55 (2006), was
correctly decided); McCormick v Carrier, ___ Mich ___ (2009) (Docket No. 136738,
order entered August 20, 2009) (granting leave to consider the plaintiff’s request to
overrule Kreiner v Fischer, 471 Mich 109 (2004), was correctly decided); Lenawee Co
Bd of Rd Comm’rs v State Auto Prop & Cas Ins Co, ___ Mich ___ (2009) (Docket Nos.
137667-8, order entered September 2, 2009) (directing the parties to consider whether
Miller v Chapman Contracting, 477 Mich 102 (2007), was correctly decided); Edry v
Adelman, ___ Mich ___ (2009) (Docket No. 138187, order entered September 30, 2009)
(directing the parties to consider whether Wickens v Oakwood Healthcare Sys, 465 Mich
53 (2001), was correctly decided); Hoover v Michigan Mut Ins Co, ___ Mich ___ (2009)
(Docket No. 138018, order entered September 25, 2009) (directing the parties to consider
whether Griffith v State Farm Mut Automobile Ins Co, 472 Mich 521 (2005), was
correctly decided); Lansing Schools Education Ass’n v Lansing Bd of Ed, ___ Mich ___
(2009) (Docket No. 138401, order entered November 19, 2009) (directing the parties to
consider whether Lee v Macomb Co Bd of Comm’rs, 464 Mich 726 (2001), was correctly
decided); Anglers of the AuSable v Dep’t of Environmental Quality, ___ Mich ___ (2010)
(Docket Nos. 138863-66, order entered January 29, 2010) (directing the parties to
consider whether Michigan Citizens v Nestlé Waters, 479 Mich 280 (2007), and Preserve
the Dunes v DEQ, 471 Mich 508 (2004), were correctly decided).
3
failed to give effect to other recent precedents of this Court.4 Today, the Court again
orders reconsideration of a case that was decided less than three years ago. Nothing in
the law of this State or the rationale of that decision has changed in this short time.
Accordingly, as I have in other similar orders,5 I respectfully dissent from this order.
CORRIGAN, J., joins the statement of YOUNG, J.
4
See, e.g., Hardacre v Saginaw Vascular Services, 483 Mich 918 (2009), where the
majority failed to follow Boodt v Borgess Med Ctr, 481 Mich 558 (2008); Sazima v
Shepherd Bar & Restaurant, 483 Mich 924 (2009), where it failed to follow Chrysler v
Blue Arrow Transport Lines, 295 Mich 606 (1940), and Camburn v Northwest School
Dist, 459 Mich 471 (1999); Vanslembrouck v Halperin, 483 Mich 965 (2009), where it
failed to follow Vega v Lakeland Hosps, 479 Mich 243, 244 (2007); Juarez v Holbrook,
483 Mich 970 (2009), where it failed to follow Smith v Khouri, 481 Mich 519 (2008);
Beasley v Michigan, 483 Mich 1025 (2009), Chambers v Wayne Co Airport Auth, 483
Mich 1081 (2009), and Ward v Michigan State Univ, ___ Mich ___ (2009) (Docket No.
138380, order entered October 23, 2009), where it failed to follow Rowland v Washtenaw
Co Rd Comm, 477 Mich 197 (2007); and Scott v State Farm Automobile Ins Co, 483
Mich 1032 (2009), where it failed to follow Thornton v Allstate Ins Co, 425 Mich 643
(1986), and Putkamer v Transamerica Ins Corp of America, 454 Mich 626 (1997)).
5
See, e.g., University of Michigan Regents, supra, 484 Mich at 853; Lenawee Co Bd of
Rd Comm’rs, supra, ___ Mich at ___; Hoover, supra, ___ Mich at ___; Lansing Schools
Education Ass’n, supra, ___ Mich at ___.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
January 29, 2010 _________________________________________
p0126 Clerk