Luwanna Harrington v. Regina Simpson

Order Michigan Supreme Court
Lansing, Michigan
June 24, 2011 Robert P. Young, Jr.,
Chief Justice
142546 Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
LUWANNA HARRINGTON, Mary Beth Kelly
Plaintiff-Appellee, Brian K. Zahra,
Justices
v SC: 142546
COA: 294365
Wayne CC: 08-123881-NS
REGINA SIMPSON,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the December 28, 2010
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
MARKMAN, J. (dissenting).
I would hold this case in abeyance for Hoffner v Lanctoe, 489 Mich ___ (2011), a
case in which oral arguments are to be scheduled. Both Hoffner and the instant case
involve the same “unavoidability” aspect of the “open and obvious” doctrine of Lugo v
Ameritech, 464 Mich 512 (2001). In Hoffner, the plaintiff fell on ice that she admittedly
saw before she fell as she was entering a fitness center. The Court of Appeals held that
the “open and obvious” doctrine did not bar the plaintiff’s claim because the danger was
“effectively unavoidable.” In the instant case, plaintiff slipped and fell on snow in her
friend’s driveway as she was retrieving a music CD from her parked vehicle. She
admitted that she saw the snow before she fell. Again, the Court of Appeals held that the
“open and obvious” doctrine did not bar plaintiff’s claim because the danger was
“effectively unavoidable.” In response, the Court of Appeals dissenting judge asserted,
“Plaintiff could have visited another day or informed defendant that she would not visit
unless and until defendant cleared her driveway. Plaintiff was neither forced to traverse
the slippery surface out of personal necessity . . . nor trapped without any alternative
means of escape . . . .” Because the “unavoidability” issue is directly implicated in both
of these cases, and because there is no apparent reason why the legal standards in these
cases should differ, I would abey for Hoffner.
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.
June 24, 2011 _________________________________________
t0621 Clerk