DANA MYERS V MCLAREN REGIONAL MEDICAL CTR
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STATE OF MICHIGAN
COURT OF APPEALS
DANA MYERS,
UNPUBLISHED
March 3, 2000
Plaintiff-Appellant,
v
No. 208264
Genesee Circuit Court
LC No. 96-045388 NO
MCLAREN REGIONAL MEDICAL CENTER,
Defendant-Appellee.
Before: Kelly, P.J., and Jansen and White, JJ.
KELLY, J. (dissenting).
I respectfully dissent.
I believe it is a question of fact whether the condition of the uneven pavement was open and
obvious under the lighting conditions alleged by plaintiff. This was a motion for summary disposition,
plaintiff alleged it was dark. An open and obvious condition is one that is visible and well known or can
be seen and appreciated. Glittenberg v Doughboy Ind, Inc., 436 Mich 673, 695; 462 NW2d 348
(1990). The parties do not dispute that plaintiff was an invitee on defendant’s premises. The invitor
owes a duty to “exercise reasonable care to protect invitees from an unreasonable risk of harm caused
by a dangerous condition of the land, that the invitor is aware of or should be aware of. Bertrand v
Alan Ford, Inc, 449 Mich 606, 609; 537 NW2d 185 (1995).
The majority says that although plaintiff testified at her deposition that it was well after sundown
when she fell and that the area was dimly lit, plaintiff was required to “establish that poor lighting
prevented her from seeing the uneven pavement.” It seems to me that is a classic invasion of the
responsibility of the trier of fact. Id. at 611; Riddle v McLouth Steel Products, 440 Mich 85,96; 485
NW2d 676 (1992). It is not incumbent upon plaintiff to establish anything to defeat summary
disposition except that there is factual support for her claim. Spiek v Michigan Dep't of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). It is up to the jury or trier
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of fact to determine the sufficiency of her evidence not the trial court on motion for summary disposition.
I would reverse.
/s/ Michael J. Kelly
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