Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,

J ustices 

# Order

May 21, 2010

139794

PAUL KACHUDAS, Plaintiff-Appellee,

v SC: 139794 COA: 281411 Genesee CC: 06-084859-NO INVADERS SELF AU TO WASH, INC., Defendant-Appellant.

________________ _______________ __________/

On April 15, 2010, the Court heard oral argument on the appli cation 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 th e 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 re versing the circuit court’s ruling on the basis that the plaintiff’s claim s ounded in ordinary negligence. The plaintiff, who was allegedly injured by slipping on the icy surf ace of the defendant’s premises, claimed that he was injured by a condition of the land, a nd as such, the claim was one for premises liability, as the circuit cour t 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 owne r on his or her premises, Laier v Kitchen, 266 Mich App 482 (2005), the plaintiff in this case is alleging in jury by a condition of the land, and as such, his claim sounds exclusiv ely 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 lik elihood 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).

C AVANAGH , J. ( dissenting ).

I would affirm the Court of Appeals resu lt. 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 basi s that it sounds in ordi nary negligence. SeeI, 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.

_______________________________________ __ 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 affi rm the Court of Appeals result because, on the facts of this case, summary disposition wa s 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.

K ELLY , C.J., joins the statement of C AVANAGH , J.

H ATHAWAY , 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 tr ial 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.