Harrington v. Simpson, Docket No. 142546.COA No. 294365.

• Decision Date: 24 June 2011
• Docket Number: Docket No. 142546.COA No. 294365.
• Citation: 798 N.W.2d 763,489 Mich. 964
• Parties: Luwanna HARRINGTON, Plaintiff–Appellee,v.Regina SIMPSON, Defendant–Appellant.
• Court: Michigan Supreme Court

489 Mich. 964

798 N.W.2d 763

Luwanna HARRINGTON, Plaintiff–Appellee,

v.Regina SIMPSON, Defendant–Appellant.

Docket No. 142546.COA No. 294365.

Supreme Court of Michigan.

June 24, 2011.

Prior report: 2010 WL 5383940.

Order

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. 877, 796 N.W.2d 50 (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, 629 N.W.2d 384 (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.