JAMES ELLIOTT V LEON J PERRIN
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STATE OF MICHIGAN
COURT OF APPEALS
JAMES ELLIOTT and TERESA ELLIOTT,
UNPUBLISHED
January 18, 2002
Plaintiffs-Appellants,
No. 222807
Shiawassee Circuit Court
LC No. 98-001639 - NO
V
LEON J. PERRIN, COUNTRY VILLAGE
APARTMENT COMPLEX, and LEE
McCARTHY, d/b/a MIDNIGHT SNOW
PLOWING,
Defendants-Appellees.
Before: K. F. Kelly, P.J., and White and Talbot, JJ.
WHITE, J. (dissenting).
I respectfully dissent. Defendants’ entitlement to summary disposition rests on the
proposition that it would have been unreasonable to apply salt before 7:30 because of the rain.
However, McCarthy’s testimony can be understood to state that it is appropriate to apply salt
even when it is raining, provided that there is something forming on the ground that the salt can
be applied to. Although defendants’ employees testified that there was no ice until shortly before
plaintiff’s fall, Ward’s testimony can be understood as stating that ice was beginning to form
shortly before 5:30 a.m. Thus, there was a question of fact regarding when the ice began to
form, and the jury could have concluded that Hasyn, an employee of Country Village responsible
for shoveling and salting, who claimed to have inspected the walks at 7:00 a.m., should have
discovered the condition and salted.
Further, there was testimony that defendant McCarthy had contracts with eight
complexes spread over a significant distance, and that although he had previously employed
helpers, he did not do so at the time of plaintiff’s fall. Depending upon when the ice began to
form, this might factor into the assessment of whether reasonable measures were taken within a
reasonable time.
Additionally, defendants’ motions were brought before the close of discovery. Plaintiff
asserted that the motions were premature and that plaintiff was “in the process of gathering
information to have an expert review and possibly render an opinion.” An expert may have
provided opinions regarding the application of salt in the rain, when the application is effective
in general, and whether, assuming Ward saw ice forming at 5:30 a.m., salt would have been
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effective if applied in the early morning hours. This was not a situation where there was no
reasonable chance that further discovery would result in support for plaintiff’s claims. The grant
of summary disposition was thus premature. Colista v Thomas, 241 Mich App 529, 537-538;
616 NW2d 249 (2000).
I would reverse and remand for further proceedings.
/s/ Helene N. White
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