Order Michigan Supreme Court
Lansing, Michigan
February 8, 2008 Clifford W. Taylor,
Chief Justice
135163 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
BEVERLY GALLIHER, Robert P. Young, Jr.
Plaintiff-Appellee, Stephen J. Markman,
Justices
v SC: 135163
COA: 267185
Oakland CC: 04-061389-NO
TRINITY HEALTH - MICHIGAN, d/b/a ST.
JOSEPH MERCY OAKLAND,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the August 2, 2007
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the question presented should now be reviewed by this Court.
MARKMAN, J., dissents and states as follows:
Because I cannot imagine any more “open and obvious” condition than a pothole
in a driveway during daylight hours, I would reverse the Court of Appeals judgment and
remand for entry of an order granting summary disposition to defendant. “[P]otholes in
pavement are an ‘everyday occurrence’ that ordinarily should be observed by a
reasonably prudent person.” Lugo v Ameritech Corp, Inc, 464 Mich 512, 523 (2001).
It is hard to know whether the majority is more persuaded here by the argument:
(a) that a shadow cast by a hospital on a pothole constitutes a “special aspect,” thus
removing the pothole from the realm of the “open and obvious”; (b) that plaintiff’s
testimony that she fell during “dark evening hours” should be accorded credit despite the
fact that 4:00 pm to 5:00 pm on the afternoon of March 1, 2003, the time of the accident,
was a daylight hour; (c) that plaintiff’s simultaneous arguments that there were sunny
conditions at the time of her accident, thereby creating a shadow over the pothole, and
that there were “overcast” conditions at the time of the accident with “heavy, dense
clouds and fog and scattered snow showers,” thereby obscuring the pothole, should be
accepted as legitimate alternative arguments; or (d) that plaintiff’s assertion that she “did
2
not discover the condition” is somehow relevant to this Court’s analysis of premises
liability cases.
That any of these arguments have been found to be persuasive by this Court
evidences why Lugo has become an increasingly “dead letter,” to be replaced by no
coherent alternative rule of law.
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.
February 8, 2008 _________________________________________
t0205 Clerk