ANN HERR V KEN MOSES
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STATE OF MICHIGAN
COURT OF APPEALS
ANN HERR and GARY HERR,
UNPUBLISHED
February 10, 2004
Plaintiff-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.
SCHUETTE, J. (dissenting).
I respectfully dissent because remand is inappropriate where the trial court granted
summary disposition based in part on plaintiff’s failure to prove causation and plaintiffs have not
asserted on appeal that the trial court erred in ruling that the stake was not the cause of Ann
Herr’s fall.
Had the trial court granted summary disposition only based on its ruling that the open and
obvious defense precluded a finding of liability, I would agree with the majority that this Court’s
opinion in O’Donnell v Garasic, ____ Mich App _____; _____ NW2d _____ (2003) would be
controlling in this case. The majority would have been correct in their application of O’Donnell
and in noting 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.
However, in the present case, the trial court also determined that there was no genuine
issue of material fact on the element of causation. Plaintiffs have not asserted that the trial court
erred in its determination that “based on [p]laintiff’s own testimony, it was not the stakes that
even caused her fall.” Under MCR 7.205(D)(4), plaintiffs’ appeal is limited to the issues raised
in their application and their brief. Thus, plaintiffs have waived this issue because they did not
include it in their statement of questions presented. Caldwell v Chapman, 240 Mich App 124,
132; 610 NW2d 264 (2000). I would find that plaintiffs have waived any claim of error on both
these findings and that any determination by this Court as to the issue raised in plaintiffs’ brief
would not affect the outcome of the trial court’s grant of summary disposition.
-1-
I would affirm.
/s/ Bill Schuette
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