Order                                                                     Michigan Supreme Court
                                                                                Lansing, Michigan

  March 8, 2019                                                                Bridget M. McCormack,
                                                                                              Chief Justice

  158038                                                                             David F. Viviano,
                                                                                     Chief Justice Pro Tem

                                                                                   Stephen J. Markman
                                                                                        Brian K. Zahra
  STEPHANIE SHERMAN, KAYLA                                                        Richard H. Bernstein
  ROLLEND, AMANDA ROLLEND,                                                        Elizabeth T. Clement
  by her Next Friend JACOB MARCINIAK,                                             Megan K. Cavanagh,
                                                                                                   Justices
  and EMILY ROLLEND, by her Next
  Friend JACOB MARCINIAK,
               Plaintiffs-Appellees,
  v                                                     SC: 158038
                                                        COA: 333514
                                                        Macomb CC: 2015-000040-NO
  ISRAEL BROS, INC.,
             Defendant-Appellant.
  ____________________________________/

        On order of the Court, the application for leave to appeal the May 24, 2018
  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 respectfully dissent from this Court’s order denying leave to appeal for the
  reasons set forth in my dissenting statement in Thompson v Gibson, ___ Mich ___ (2019)
  (MARKMAN, J., dissenting). This case, as with Thompson, concerns whether a landlord
  possessed constructive notice of a defect within leased premises that caused injury to a
  tenant. In my judgment, the Court of Appeals majority failed to recognize and address
  the proper legal inquiry as laid out in my Thompson dissent; i.e., it failed to examine
  whether the landlord knew or should have known of the defect before leasing the
  property. However, unlike in Thompson—in which this Court has already once
  remanded for reconsideration—in the instant case, the Court of Appeals has not had the
  opportunity to reconsider its conclusion in light of clearly applicable legal principles.
  Moreover, the proper application of these principles in the instant case is somewhat less
  clear than in Thompson, given that plaintiffs here provided expert testimony (although
  arguably of insufficient precision) regarding the duration of the alleged defect, and the
  specific nature of that defect—corrosion of a water heater—seems somewhat more likely
  to have arisen over a substantial period of time than the defect in Thompson. While I am
  unsure whether this evidence gives rise to a genuine issue of material fact that the
                                                                                                               2

landlord should have known of this defect when the lease was signed four years before
the injury occurred, the issue nonetheless is worthy of plenary appellate review under the
proper legal standard. Accordingly, I would remand to the Court of Appeals for
reconsideration in light of the legal framework set forth in my dissent in Thompson.




                         I, Larry S. Royster, 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.
                         March 8, 2019
       a0305
                                                                             Clerk
