Dean McMaster v. Dte Energy Company ( 2019 )

Order Michigan Supreme Court
Lansing, Michigan
September 27, 2019 Bridget M. McCormack,
Chief Justice
159062 & (45) David F. Viviano,
Chief Justice Pro Tem
Stephen J. Markman
Brian K. Zahra
DEAN McMASTER, Richard H. Bernstein
Plaintiff-Appellant/ Elizabeth T. Clement
Cross-Appellee, Megan K. Cavanagh,
Justices
v SC: 159062
COA: 339271
Oakland CC: 2015-147414-NO
DTE ELECTRIC COMPANY,
Defendant-Appellee/
Cross-Appellant,
and
FERROUS PROCESSING AND TRADING
COMPANY, d/b/a FERROUS PROCESSING
& TRADING CO.,
Defendant.
______________________________________/
On order of the Court, the application for leave to appeal the November 8, 2018
judgment of the Court of Appeals and the application for leave to appeal as
cross-appellant are considered and, pursuant to MCR 7.305(H)(1), in lieu of granting the
application for leave to appeal, we VACATE Part III of the opinion, titled
“Common-Law Duty.” The Court of Appeals erred when it applied the open and obvious
doctrine to this ordinary negligence case. The open and obvious doctrine is applicable to
a claim that sounds in premises liability: “the question is whether the condition of the
premises at issue was open and obvious . . . .” Lugo v Ameritech Corp, Inc, 464 Mich.
512, 523 (2001). Here, the cause of action does not sound in premises liability but rather
in ordinary negligence. Accordingly, we REMAND this case to the Court of Appeals for
application of the law of ordinary negligence and for consideration of the issues raised by
the parties on the question of the defendant’s legal duty. The application for leave to
appeal as cross-appellant is DENIED, because we are not persuaded that the question
presented should be reviewed by this Court.
I, Larry S. Royster, 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.
September 27, 2019
a0924
Clerk