Michigan Supreme Court

Lansing, Michigan

Marilyn Kelly,

 Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

Diane M. Hathaway, Justices

Order 

May 21, 2010 

139794 

PAUL KACHUDAS, 

Plaintiff-Appellee, 

v SC: 139794 

 COA: 281411 

Genesee CC: 06-084859-NO 

INVADERS SELF AUTO WASH, INC., 

Defendant-Appellant. 

_________________________________________/ 

 On April 15, 2010, the Court heard oral argument on the application for leave to 

appeal the September 1, 2009 judgment of the Court of Appeals. On order of the Court, 

the application is again considered. MCR 7.302(H)(1). In lieu of granting leave to 

appeal, we REVERSE the judgment of the Court of Appeals and REINSTATE the 

Genesee Circuit Court’s September 6, 2007 order granting summary disposition to the 

defendant. The Court of Appeals erred by reversing the circuit court’s ruling on the basis 

that the plaintiff’s claim sounded in ordinary negligence. The plaintiff, who was 

allegedly injured by slipping on the icy surface of the defendant’s premises, claimed that 

he was injured by a condition of the land, and as such, the claim was one for premises 

liability, as the circuit court correctly recognized. James v Alberts, 464 Mich 12, 18-19 

(2001). Although an injured person may pursue a claim in ordinary negligence for the 

overt acts of a premises owner on his or her premises, Laier v Kitchen, 266 Mich App 

482 (2005), the plaintiff in this case is alleging injury by a condition of the land, and as 

such, his claim sounds exclusively in premises liability. In addition, the circuit court 

properly ruled that the alleged hazardous condition was open and obvious, because a 

reasonably prudent average user of ordinary intelligence spraying water outdoors in a 

temperature range of 11 to 24 degrees would anticipate the likelihood of freezing and the 

resulting danger therefrom. Mann v Shusteric Enterprises, Inc, 470 Mich 320, 330 

(2004); Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 478-479 (2008). 

 CAVANAGH, J. (dissenting). 

 I would affirm the Court of Appeals result. I agree with the order’s conclusion 

that plaintiff’s claim sounds in premises liability, and the Court of Appeals erred by 

reversing the circuit court’s ruling on the basis that it sounds in ordinary negligence. See 
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. 

 _________________________________________ 

 Clerk

May 21, 2010 

0512 

 

2

James v Alberts, 464 Mich 12, 18-19 (2001), and Bertrand v Alan Ford, Inc, 449 Mich 

606, 609-611 (1995). I would nonetheless affirm the Court of Appeals result because, on 

the facts of this case, summary disposition was improper. Plaintiff has raised a genuine 

issue of material fact regarding the open and obvious doctrine, and the issue should be 

submitted to a jury. See, generally, Bertrand, 449 Mich at 617-618. 

 KELLY, C.J., joins the statement of CAVANAGH, J. 

 HATHAWAY, J. (dissenting). 

 I respectfully dissent from the order of this Court which reverses the Court of 

Appeals and reinstates the Genesee County Circuit Court’s order granting summary 

disposition to the defendant. I believe the trial court’s grant of summary disposition was 

in error and that the Court of Appeals properly reversed that decision. Accordingly, I 

would affirm the Court of Appeals.