LAWRENCE J HOSTE V CHRYSLER CORP

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STATE OF MICHIGAN COURT OF APPEALS LAWRENCE J. HOSTE, UNPUBLISHED July 13, 2004 Plaintiff-Appellant, v No. 245804 Antrim Circuit Court LC No. 93-006013-NO CHRYSLER CORPORATION PLYMOUTH DIVISION, U.S. RECREATIONAL SKI ASSOCIATION, and SHANTY CREEK MANAGEMENT, Defendants, and RELIABLE RACING SUPPLY, Defendant-Appellee. Before: Fitzgerald, P.J., and Bandstra and Schuette, JJ. FITZGERALD, P.J., (dissenting.) I respectfully dissent. The trial court granted summary disposition in favor of defendant Reliable Racing Supply on the ground that plaintiff failed to present a genuine issue of fact with regard to the first element of a cause of action for negligent design based on a theory to warn: “actual or constructive knowledge of the claimed danger.” The majority disagrees, and concludes that a genuine issue of fact was presented concerning whether Reliable had actual or constructive knowledge of the danger presented by solid affixation of a banner between gate poles. Nonetheless, the majority affirms the grant of summary disposition on the alternative ground that Shanty Creek was a sophisticated user and, therefore, was in the best position to warn of the dangers associated with solidly affixing a banner between two gate poles. The majority holds that Shanty Creek is a sophisticated user and that, “Shanty Creek could be presumed by Reliable to be experienced in using and handling its products.” Defendant did not identify this issue as a basis for summary disposition, and it was not considered or addressed by the trial court. The record is not sufficiently developed to allow this Court to conclude as a matter of law that ski resorts, in general, recognize the hazard from solid affixation -1- of a banner between two gate poles. disposition in favor of Reliable.1 Thus, I would reverse the order granting summary /s/ E. Thomas Fitzgerald 1 Reliable is free to raise the issue of the sophisticated user doctrine below in a properly presented motion for summary disposition. -2-

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