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 

Robert P. Young, Jr. JACQUELINE MANESS, Stephen J. Markman, Plaintiff-Appellant, 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. 

s0304 

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 

Clerk