RENEE MICKENS V HARRY SLATKIN BUILDERS INC
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STATE OF MICHIGAN
COURT OF APPEALS
RENEE MICKENS,
UNPUBLISHED
May 3, 2002
Plaintiff-Appellant,
v
DEXTER CHEVROLET COMPANY, a/k/a
HARRY SLATKIN BUILDERS, d/b/a
SHERWOOD HEIGHTS APARTMENTS, and
HARTMAN AND TYNER, INC., d/b/a
SHERWOOD HEIGHTS APARTMENTS,
Defendants-Appellees.
No. 208269
Wayne Circuit Court
LC No. 96-616853-NO
ON REMAND
Before: Sawyer, P.J., and Cavanagh and Fitzgerald, JJ.
SAWYER, P.J. (dissenting).
I dissent.
In our original opinion, we concluded, over my colleague’s dissent, that the trial court
correctly determined that there was no genuine issue of material fact regarding the applicability
of the open and obvious danger doctrine. Thereafter, the Supreme Court vacated our opinion and
remanded for reconsideration in light of their more recent decision in Lugo v Ameritech, 464
Mich 512; 629 NW2d 384 (2001).
On remand, the majority now reverses, concluding that there is a genuine issue of
material fact regarding plaintiff’s knowledge of the defective condition, a conclusion that is the
direct opposite of what this Court decided in our first opinion. However, the majority does not
reach this conclusion because of a change in the law announced in Lugo. Indeed, although the
Supreme Court remanded this case for reconsideration in light of Lugo, the majority spends little
time considering Lugo. In fact, the only consideration given to Lugo by the majority is to cite it
for the proposition that there is no duty to protect invitees from open and obvious dangers unless
the danger poses an unreasonable risk of harm. Ante, slip op at 2.
This case was not remanded to us to give plaintiff another bite at the apple on the
question whether our original decision was correct. It was remanded to us to determine if, in
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light of Lugo, a different result would be reached. It is clear from reviewing Lugo that it does
not mandate a justifiable reason to change our original result.
I therefore stand by our original decision and would affirm.
/s/ David H. Sawyer
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