ANN HERR V KEN MOSES
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STATE OF MICHIGAN
COURT OF APPEALS
ANN HERR and GARY HERR,
UNPUBLISHED
February 10, 2004
Plaintiffs-Appellants,
v
No. 242936
Oakland Circuit Court
LC No. 2001-033957-NO
KEN MOSES,
Defendant-Appellee.
Before: Owens, P.J., and Schuette and Borrello, JJ.
PER CURIAM.
Plaintiffs appeal by leave granted from an order granting summary disposition in favor of
defendant. We reverse and remand for further proceedings consistent with this opinion.
The sole issue presented by plaintiffs is whether the trial court erred by allowing
defendant to assert the open and obvious doctrine as a defense to plaintiff Ann Herr’s claim
when liability was premised on the defendant landlord’s duty to keep the premises in reasonable
repair as statutorily mandated by MCL 554.139. At the time of the trial court’s ruling, this Court
had not yet decided O’Donnell v Garasic, ____ Mich App _____; _____ NW2d _____ (2003).
We find this Court’s opinion in O’Donnell controlling on this case. Similarly to the case at hand,
the plaintiff in O’Donnell was aware of a problem with a staircase, admitted she had seen the
problem, and acknowledged that she knew the staircase presented difficulty if not properly
negotiated. Following a lengthy analysis of the development of a statutory duty exception to the
defense of open and obvious, this Court opined that “[t]he open and obvious doctrine is not
available to deny liability to an injured invitee on leased or licensed residential premises when
such premises presents a material breach of the specific statutory duty imposed on owners of
residential properties to maintain their premises in reasonable repair and in accordance with the
health and safety laws . . . . ” Id. at slip op 7. Furthermore, this Court held that the issue of a
statutory duty exception to the open and obvious doctrine “required both factual and legal
development . . . . ” We find that the similar factual pattern set forth in the present case
necessitates that we reverse the trial court’s ruling and remand for further proceedings in accord
with this Court’s opinion.
Also, because we are bound to view the evidence in the light most favorable to plaintiff,
we would be remiss not to reverse the trial court’s finding of fact that “it was not the stakes that
even caused her fall.” Review of deposition testimony indicates that plaintiff testified that the
stakes had led to her fall. Such findings are left to the jury and present a genuine issue of
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material fact regarding the nature of plaintiff’s fall, thus precluding the granting of summary
disposition under MCR 2.116(C)(10).
Reversed and remanded for further proceedings in accordance with this opinion. We do
not retain jurisdiction.
/s/ Donald S. Owens
/s/ Stephen L. Borrello
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