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UNPUBLISHED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.
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