PAULA ZELENKO V DAVID STITES
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STATE OF MICHIGAN
COURT OF APPEALS
PAULA ZELENKO, Personal Representative of
the Estate of RICHARD PRINE, Deceased,
UNPUBLISHED
November 29, 2005
Plaintiff-Appellant,
v
No. 254691
Genesee Circuit Court
LC No. 02-074918-NO
DAVID STITES,
Defendant-Appellee.
Before: Fort Hood, P.J., and White and O’Connell, JJ.
WHITE, J. (dissenting).
The circuit court recognized that plaintiff sought recovery on both premises liability and
general negligence theories, and granted summary disposition as to both. The majority does not
address the claims separately. I conclude that there were questions of fact as to each.
As to the premises liability claim, the proper inquiry is not “whether the danger presented
by cutting trees with a chainsaw, and without a hardhat, was well-known,” but, rather, whether
the dangerous condition was open and obvious, Laier v Kitchen, 266 Mich App 482, 487-490;
702 NW2d 199 (2005), i.e., whether the dead tree branch in proximity to the tree being cut was
readily observable to a person of average intelligence upon casual inspection. Because the sole
basis for the circuit court’s dismissal of plaintiff’s premises liability claim was that the danger of
the activity, rather than the condition, was open and obvious, I would reverse.
As to the general negligence claim, there was evidence sufficient to create a question of
fact whether defendant was negligent. That defendant may also have failed to exercise due care
for his own safety, and plaintiff’s decedent may have been negligent as well, does not defeat this
claim.
/s/ Helene N. White
-1-
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