NANCY TORRES V GOODWILL INDUSTRIES OF GREATER GRAND RAPIDS INC

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STATE OF MICHIGAN COURT OF APPEALS NANCY TORRES, UNPUBLISHED December 7, 2010 Plaintiff-Appellant, v No. 292138 Kent Circuit Court LC No. 08-008861-NO GOODWILL INDUSTRIES OF GREATER GRAND RAPIDS, INC., Defendant-Appellee. Before: GLEICHER, P.J., and ZAHRA and K.F. KELLY, JJ. GLEICHER, J. (concurring). I concur in the result reached by the majority, on the basis of our Supreme Court’s order in Janson v Sajewski Funeral Home, Inc, 486 Mich 934 (2010). An order of the Supreme Court constitutes binding precedent when the rationale that the Court employed can be understood. Evans & Luptak, PLC v Lizza, 251 Mich App 187, 196; 650 NW2d 364 (2002). The Supreme Court declared in Janson, 486 Mich at 935, that “wintry conditions by their nature would . . . alert[] an average user of ordinary intelligence to discover the danger upon casual inspection.” In my view, the reasonableness of an average user’s conduct should comprise a jury question under MCL 600.2958, which provides that in an action based on tort “a plaintiff’s contributory fault does not bar that plaintiff’s recovery of damages.” But for the Supreme Court’s order in Janson, I would hold that a jury should decide whether on casual inspection plaintiff reasonably perceived the damp spot on the pavement to be water rather than black ice. /s/ Elizabeth L. Gleicher -1-

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