Order Michigan Supreme Court
Lansing, Michigan
March 7, 2008 Clifford W. Taylor,
Chief Justice
134526 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
JACQUELINE MANESS, Robert P. Young, Jr.
Plaintiff-Appellant, Stephen J. Markman,
Justices
v SC: 134526
COA: 271976
Monroe CC: 05-020422-NO
CARLETON PHARMACY, L.L.C.,
d/b/a SAV-MOR PHARMACY,
Defendant,
and
KRYSTAL KLEEN CLEANING
COMPANY and VICKIE ASHER,
Defendants-Appellees.
_________________________________________/
On order of the Court, the application for leave to appeal the May 31, 2007
judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in
lieu of granting leave to appeal, we VACATE that part of the Court of Appeals judgment
holding that Krystal Kleen Cleaning Company and Vickie Asher’s motion for summary
disposition should be granted, and REINSTATE the July 7, 2006 order of the Monroe
Circuit Court denying Krystal Kleen and Asher’s motion for summary disposition.
Although the Court of Appeals correctly determined that Krystal Kleen and Asher are not
entitled to summary disposition on the basis of the open and obvious doctrine, the panel
erred in holding that these defendants are entitled to summary disposition on other
grounds. Whether the plaintiff established a genuine issue of material fact regarding her
ordinary negligence claim against Krystal Kleen and Asher was neither raised by Krystal
Kleen and Asher in their motion for summary disposition regarding the applicability of
the open and obvious doctrine, nor considered by the trial court. We REMAND this case
to the Monroe Circuit Court for further proceedings not inconsistent with this order.
MARKMAN, J., dissents and states as follows:
2
I would deny leave to appeal. A surveillance video shows clearly that plaintiff
was walking directly toward a “wet floor” sign but was looking in another direction when
she fell. The Court of Appeals reversed the trial court’s order denying summary
disposition to defendant Carleton Pharmacy, holding that the wet floor constituted an
“open and obvious” condition, plaintiff’s distraction did not nullify the “open and
obvious” nature of the condition, and there was no “special aspect” that would render the
condition unreasonably dangerous. The Court of Appeals did not believe that the “open
and obvious” doctrine also applied to defendant contractors Krystal Kleen and Vickie
Asher, but held that summary disposition should have been granted to these parties under
a general negligence standard.
I agree with the Court of Appeals. Although the parties may not have fully briefed
the issue of general negligence, this was a general negligence case from the start, and the
Court of Appeals did not err in finding that, as a matter of law, Krystal Kleen and Asher
did not breach their duty to plaintiff. The determination by the Court of Appeals that the
“wet floor” sign made the condition of the floor “open and obvious” for Carleton
Pharmacy’s purposes necessarily demonstrates that Krystal Kleen and Asher performed
their duty to warn of the condition. Therefore, this issue has effectively been decided,
and further factual development is unnecessary. All parties have been deposed, and a
video clearly shows the details of the incident. It is a waste of legal and judicial
resources to remand under these circumstances. There is simply no remaining genuine
issue of material fact.
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.
March 7, 2008 _________________________________________
s0304 Clerk