TAMARA JESSEE V WALGREEN CO (Concurring Opinion)

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STATE OF MICHIGAN COURT OF APPEALS TAMARA JESSEE, UNPUBLISHED October 25, 2012 Plaintiff-Appellant, v No. 306563 Ogemaw Circuit Court LC No. 10-657752-NO WALGREEN CO., Defendant-Appellee, and FRANCIS FLOOR CARE, INC., Defendant, and PAUL C. HAGADONE, doing business as FLOOR PRO, Defendant-Appellee. Before: RONAYNE KRAUSE, P.J., and BORRELLO and RIORDAN, JJ. RONAYNE KRAUSE, P.J. (concurring in part and dissenting in part) I concur with the majority s conclusions regarding the open and obvious doctrine and the lack of special aspects in this case. However, I believe that plaintiff articulated a claim based on ordinary negligence. Because the open and obvious doctrine is not a valid defense to a claim based on ordinary negligence, I would reverse and remand on that issue. Plaintiff s complaint alleges that Defendant Hagadone owed a duty to use reasonable care in doing its work to protect the safety of invitees such as plaintiff shopping at the Walgreens Store[.] This language makes it clear that plaintiff is alleging that [d]efendant s conduct was thus an alleged basis of liability, independent of premises liability. Laier v Kitchen, 266 Mich App 482, 493; 702 NW2d 199 (2005) (emphasis in original). Furthermore, we have previously held that the open and obvious doctrine is inapplicable to claims based on ordinary negligence. Hiner v Mojica, 271 Mich App 604, 615-616; 722 NW2d 914 (2006). Thus, summary disposition is improper to the extent that it applies to plaintiff s claims based on ordinary negligence. I express no opinion about the merits of such a claim or the -1- strength of plaintiff s case. However, it is this Court s duty to determine whether a genuine issue of material fact exists, and in this case it does. I would affirm in part, and reverse the summary disposition regarding plaintiff s ordinary negligence claim. /s/ Amy Ronayne Krause -2-

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