PATRINA PICA-KRAS V COSTCO WHOLESALE INC
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STATE OF MICHIGAN
COURT OF APPEALS
PATRINA PICA-KRAS and RICHARD KRAS,
UNPUBLISHED
January 15, 2004
Plaintiffs-Appellants,
v
No. 242920
Oakland Circuit Court
LC No. 01-029803-NO
COSTCO WHOLESALE, INC.,
Defendant-Appellee.
Before: Wilder, P.J., and Griffin and Cooper, JJ.
COOPER, J. (dissenting).
I respectfully dissent from the majority in that I believe plaintiff is entitled to the benefit
of an inference of constructive notice because contrary to store policy, the mustard was removed
from the floor prior to any investigation or photograph of the accident scene. When considering
a motion based on MCR 2.116(C)(10), the trial court is required to take into account the
“pleadings, depositions, admissions, and documentary evidence then filed in the action or
submitted by the parties” to the extent that the content or substance of that evidence would be
admissible at trial.1
I believe that such an inference would be sufficient to defeat the MCR 2.116(C)(10)
motion and allow the case to proceed to the jury as there is a genuine issue of material fact as to
the length of time the mustard was on the floor and whether there was a sufficient amount of
time to give the defendant constructive notice of the existing condition.
I would reverse.
/s/ Jessica R. Cooper
1
MCR 2.116(G)(5)-(6).
-1-
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