MAE HENDRIX V LAUTREC LTD (Concurring Opinion)
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STATE OF MICHIGAN COURT OF APPEALS MAE HENDRIX, UNPUBLISHED October 27, 2016 Plaintiff-Appellant, v LAUTREC, LTD, No. 328191 Oakland Circuit Court LC No. 2014-142087-NO Defendant-Appellee. Before: FORT HOOD, P.J., and GLEICHER and O’BRIEN, JJ. O’BRIEN, J. (concurring in part and dissenting in part). I write separately to express my disagreement with the majority’s conclusion that a genuine issue of material fact exists regarding whether Lautrec, Ltd., breached its duty to maintain pursuant to MCL 554.139(1)(a). In my view, Allison v AEW Capital Mgt, LLP, 481 Mich 419; 751 NW2d 8 (2008), controls. The majority finds Allison factually distinguishable, concluding that parking lots and driveways in apartment complexes differ as to whether they are “intended for pedestrian access to the garages and pedestrian access to the residential units.” However, here and in Allison, there can be no dispute that the pathway at issue, whether it be through a parking lot or through a driveway, was “intended for pedestrian access to the garages and pedestrian access to the residential units.” While it may be true that parking lots and driveways may have different “primary” uses, I do not think that it can be disputed that both are “intended for pedestrian access to garages and pedestrian access to the residential units.” Accordingly, I would affirm. Nevertheless, I do agree that the condition at issue was open and obvious as a matter of law. /s/ Colleen A. O’Brien
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