Michigan Supreme Court 

# Order

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 applicati on for leave to appeal the May 31, 2007 judgment of the Court of Appeals is consid ered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we VACATE th at part of the Court of Appeals judgment holding that Krystal Kleen Cleaning Compan y and Vickie Asher’s motion for summary disposition should be granted, and REINSTAT E the July 7, 2006 order of the Monroe Circuit Court denying Krysta l Kleen and Asher’s motion for summary disposition. Although the Court of Appeals correctly determined that Kr ystal 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 su mmary disposition on other grounds. Whether the plaintiff established a genuine issue of materi al fact regarding her ordinary negligence claim ag ainst Krystal Kleen and Ash er was neither raised by Krystal

Kleen and Asher in their mo tion for summary disposition reg arding the applicability of the open and obvious doctrine, nor considered by the trial c ourt. We REMAND this case

to the Monroe Circuit Court for further proceedings not inconsis tent with this order.

M ARKMAN

, J., dissents and states as follows:_______________________________________ __ 2

I would deny leave to appeal. A surve illance video shows clea rly 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 Carl eton Pharmacy, holding that the wet floor constituted an “open and obvious” co ndition, plaintiff’s distraction did not nullify the “open and

obvious” nature of the conditio n, and there was no “special as pect” that would render the condition unreasonably dangerous. The Court of Appeals did not believe that the “open

and obvious” doctrine also a pplied to defendant contractor s Krystal Kleen and Vickie Asher, but held that summary disposition should ha ve been granted to these parties under a general negligence standard.

I agree with the Court of Appeals. Alth ough 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 di d 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 circumstan ces. There is simply no remaini ng genuine

issue of material fact.

s0304 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

March 7, 2008

Clerk