Order                                                                                        Michigan Supreme Court
                                                                                                   Lansing, Michigan

  June 24, 2011                                                                                        Robert P. Young, Jr.,
                                                                                                                 Chief Justice

  142546                                                                                               Michael F. Cavanagh
                                                                                                             Marilyn Kelly
                                                                                                       Stephen J. Markman
                                                                                                       Diane M. Hathaway
  LUWANNA HARRINGTON,                                                                                      Mary Beth Kelly
          Plaintiff-Appellee,                                                                              Brian K. Zahra,
                                                                                                                      Justices
  v                                                                 SC: 142546
                                                                    COA: 294365
                                                                    Wayne CC: 08-123881-NS
  REGINA SIMPSON,
            Defendant-Appellant.

  _________________________________________/

        On order of the Court, the application for leave to appeal the December 28, 2010
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court.

        MARKMAN, J. (dissenting).

         I would hold this case in abeyance for Hoffner v Lanctoe, 489 Mich ___ (2011), a
  case in which oral arguments are to be scheduled. Both Hoffner and the instant case
  involve the same “unavoidability” aspect of the “open and obvious” doctrine of Lugo v
  Ameritech, 464 Mich 512 (2001). In Hoffner, the plaintiff fell on ice that she admittedly
  saw before she fell as she was entering a fitness center. The Court of Appeals held that
  the “open and obvious” doctrine did not bar the plaintiff’s claim because the danger was
  “effectively unavoidable.” In the instant case, plaintiff slipped and fell on snow in her
  friend’s driveway as she was retrieving a music CD from her parked vehicle. She
  admitted that she saw the snow before she fell. Again, the Court of Appeals held that the
  “open and obvious” doctrine did not bar plaintiff’s claim because the danger was
  “effectively unavoidable.” In response, the Court of Appeals dissenting judge asserted,
  “Plaintiff could have visited another day or informed defendant that she would not visit
  unless and until defendant cleared her driveway. Plaintiff was neither forced to traverse
  the slippery surface out of personal necessity . . . nor trapped without any alternative
  means of escape . . . .” Because the “unavoidability” issue is directly implicated in both
  of these cases, and because there is no apparent reason why the legal standards in these
  cases should differ, I would abey for Hoffner.




                           I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           June 24, 2011                       _________________________________________
           t0621                                                               Clerk
