Pinsky v. Kroger Co. of Mich.

• Decision Date: 22 April 2022
• Docket Number: SC: 163430,COA: 351025
• Citation: 972 N.W.2d 256 (Mem)
• Parties: Renee PINSKY and David Pinsky, Plaintiffs-Appellants, v. KROGER CO. OF MICHIGAN, Defendant-Appellee.
• Court: Michigan Supreme Court

972 N.W.2d 256 (Mem)

Renee PINSKY and David Pinsky, Plaintiffs-Appellants,

v.KROGER CO. OF MICHIGAN, Defendant-Appellee.

SC: 163430

COA: 351025

Supreme Court of Michigan.

April 22, 2022

Order

On order of the Court, the application for leave to appeal the May 27, 2021 judgment of the Court of Appeals is considered. We direct the Clerk to schedule oral argument on the application. MCR 7.305(H)(1).

The appellants shall file a supplemental brief within 42 days of the date of this order addressing whether: (1) there is a question of fact concerning whether the cable used to close off the checkout lane was open and obvious; (2) there is a question of fact concerning whether the condition was unreasonably dangerous; (3) under Estate of Livings v Sage's Investment Group, LLC , 507 Mich. 328, 968 N.W.2d 397 (2021), Lugo v Ameritech Corp, Inc , 464 Mich. 512, 629 N.W.2d 384 (2001), and 2 Restatement Torts, 2d, § 343A, the open and obvious doctrine does not preclude relief where a land possessor should anticipate the harm; and (4) liability should be precluded in Michigan even if the danger posed by a condition on land is open and obvious without special aspects as defined by Lugo , or whether the open and obvious nature of a condition should be a consideration for the jury in assessing the comparative fault of the parties as set forth in the Restatement Torts, 3d. In the brief, citations to the record must provide the appendix page numbers as required by MCR 7.312(B)(1). The appellee shall file a supplemental brief within 21 days of being served with the appellants’ brief. A reply, if any, must be filed by the appellants within 14 days of being served with the appellee's brief. The parties should not submit mere restatements of their application papers.

We further direct the Clerk to schedule the oral argument in this case for the same future session of the Court when it will hear oral argument in Kandil-Elsayed v F & E Oil, Inc (Docket No. 162907).

Persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.