Order                                                                          Michigan Supreme Court
                                                                                     Lansing, Michigan

  December 3, 2010                                                                            Marilyn Kelly,
                                                                                                  Chief Justice

  139294(32)                                                                           Michael F. Cavanagh
                                                                                         Maura D. Corrigan
                                                                                        Robert P. Young, Jr.
                                                                                        Stephen J. Markman
  SHERI SCHOOLEY,                                                                       Diane M. Hathaway
            Plaintiff-Appellee,                                                        Alton Thomas Davis,
                                                                                                       Justices
  v                                                         SC: 139294
                                                            COA: 291284
                                                            Wayne CC: 08-106910-NO
  CONSOLIDATED ROADHOUSE OF
  TAYLOR, LLC, d/b/a TEXAS ROADHOUSE,
             Defendant-Appellant.
  _________________________________________/

         On order of the Court, the motion for reconsideration of this Court’s May 21, 2010
  order is considered, and it is DENIED, because it does not appear that the order was
  entered erroneously.

           KELLY, C.J. (concurring).

         It is well-settled that “[a] denial of leave to appeal has no precedential value.”1
  Thus, the dissent can be reassured, this order and our May 21, 2010 order denying leave
  to appeal do not constitute a “conclusion” on which the “imposition of strict liability
  upon a business” can be premised.2

          It is undisputed in this case that defendant’s toilet paper dispenser broke plaintiff’s
  hand when she was using it in a normal manner while a patron in defendant’s restaurant.
  It is also undisputed that checking whether the dispensers were in the “locked” position
  was not part of defendant’s routine restroom inspections. Thus, if a jury concluded that
  the dispensers constituted a “dangerous condition,” it could certainly conclude that
  defendant’s inspections were insufficient to satisfy its duty to inspect the premises.



  1
    Tebo v Havlik, 418 Mich 350, 363 n 2 (1984) (opinion by BRICKLEY, J.); id. at 371 n 2
  (opinion by RYAN, J.); id. at 380 n 18 (opinion by LEVIN, J.).
  2
      Post at ___ (MARKMAN, J., dissenting).
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        By denying reconsideration of our denial of leave to appeal, this Court has not
decided whether plaintiff should recover damages from defendant. It has merely decided
that the Court of Appeals and the trial court were correct in allowing the case to continue.
As always, the burden will be on plaintiff at trial to show that her injury occurred because
the dispenser represented an unreasonable risk of harm. As always, she will be required
to show that defendant knew or should have known of the risk. It is not for this Court but
rather for the jury to decide if the dispenser that harmed her constituted a dangerous
condition.3

       It would be improper for this Court to rule that an ordinary instrument like a toilet
paper dispenser could never cause compensable harm for the mere reason that it is used
in people’s day-to-day lives. The dissenters would have us believe that great harm is
done to the rule of law by our denial here. My belief is that the great harm would be for
this Court to reverse both lower courts and alter settled law that holds that (1) “[t]he
landowner has a duty of care, not only to warn the ‘invitee’ of any known dangers, but to
also make the premises safe, which requires the landowner to inspect the premises and,
depending upon the circumstances, make any necessary repairs or warn of any discovered
hazards,”4 and (2) a lawsuit should not be dismissed on summary disposition where a
genuine issue of material fact has been shown to exist. MCR 2.116(C)(10).

       MARKMAN, J. (dissenting).

      I strongly dissent, and would grant defendant’s motion for reconsideration, vacate
this Court’s May 21, 2010 order, and reverse the trial court's denial of defendant's
summary disposition motion. I continue to believe that an ordinary, toilet paper
dispenser does not constitute a “dangerous condition” causing “an unreasonable risk of
harm” on a business premises. Lugo v Ameritech Corp, 464 Mich 512, 516 (2001).

       As already set forth in my statement dissenting from the denial of leave to appeal
in this case, Schooley, 486 Mich at 920, plaintiff alleges that, while she was using the
restroom at defendant’s restaurant, a plastic toilet paper dispenser fell open and injured


3
  The dissent concludes that the hazard in this case could not have reasonably been
anticipated as a matter of law. But that conclusion rests on speculation. There is no
evidence that defendant’s employees inspected its toilet paper dispensers to see if they
were closed. In fact, plaintiff argued before the trial court that defendant’s restaurant
manager conceded that the dispensers were not inspected even though he was aware that
customers tampered with them. Thus, it is proper to leave the determination of the truth
of the assertion to a jury, not to this Court.
4
 Wymer v Holmes, 429 Mich 66, 71 n 1 (1987), overruled on other grounds by Neal v
Wilkes, 470 Mich 661 (2004).
                                                                                            3

her hand. The trial court denied defendant's motion for summary disposition, and the
Court of Appeals and this Court denied defendant’s applications for leave to appeal.

       In its motion for reconsideration, defendant argues that if this Court’s order is
allowed to stand, there will be “no more negligence/premises liability law in the State of
Michigan.” While that assertion is perhaps slightly hyperbolic, it is hard to understand
the actions of the majority as anything other than the imposition of strict liability upon a
business for an accident occurring on its property. The law, at least as it has always
previously existed, has never imposed such an obligation upon a premises owner. Rather,
the law was clear that “[t]he duty a possessor of land owes his invitees is not absolute . . .
it does not extend to conditions from which an unreasonable risk cannot be anticipated.”
Williams v Cunningham Drug Stores, 429 Mich 495, 500 (1988) (emphasis added). The
law was clear that a plaintiff must show a “dangerous condition” that caused “an
unreasonable risk of harm” that the landowner “knows or should know invitees will not
discover, realize, or protect themselves against.” Bertrand v Alan Ford, 449 Mich 606,
609 (1995). Because a toilet paper dispenser hardly constitutes “a dangerous condition;”
because a toilet paper dispenser does not create “an unreasonable risk of harm” that
should be “anticipated;” because a toilet paper dispenser that may come open once every
3-4 years does not constitute “notice” of a dangerous condition; and because defendant
here was at least ordinarily diligent in fulfilling its duty to inspect its premises and warn
patrons of hazardous conditions, plaintiff cannot sustain her lawsuit.

       Indeed, defendant satisfied the exact standard that the concurring justice invokes.
Citing Wymer v Holmes, 429 Mich 66, 71 n 1 (1987), overruled on other grounds by Neal
v Wilkes, 470 Mich 661 (2004), the concurrence correctly states that “[t]he landowner has
a duty of care, not only to warn the invitee of any known dangers, but the additional
obligation to make the premises safe, which requires the landowner to inspect the
premises and, depending upon the circumstances, make any necessary repairs or warn of
any discovered hazards.” The concurrence fails to acknowledge, however, that the
defendant-restaurant here did inspect the premises—in fact, it inspected the restroom
regularly at 15-30 minute intervals—and did not discover any hazards. Thus, how could
it make any “necessary repairs” or “warn” its customers when there were no necessary
repairs to make and there were no hazards of which to warn? There is no genuine issue
of material fact on this question that would preclude summary disposition under MCR
2.116(C)(10).

       The majority’s contrary conclusion is inconsistent with the law of this state, which
has always recognized that liability should not attach for ordinary conditions on property
that persons must routinely negotiate in their day-to-day lives. If the toilet paper
dispenser at issue here serves to impose liability on a landowner, the number of ordinary
and innocuous things that will do the same is limitless. If the defendant restaurant’s
inspections in this case are insufficient to satisfy its duty, premise owners will be held to
an effectively strict-liability standard, under which they must inspect their premises for
                                                                                                               4

“conditions from which [even] an unreasonable risk cannot be anticipated.” Williams,
429 Mich at 500. Indeed, if I understand the concurring Justice correctly, it was not
enough for defendant to have inspected the restroom every 15-30 minutes for any hazards
that could reasonably have been anticipated, such as wet floors. Nor was it enough for
defendant to visually check that its toilet paper dispensers were in a proper position,
excluding presumably those dispensers located in stalls being utilized at the time. Rather,
defendant apparently also had a legal duty to inspect for hazards that could not
reasonably have been anticipated, such as a toilet paper dispenser opening unexpectedly
even when it appeared closed.

       According to the concurring Chief Justice, “there is no evidence” that defendant’s
employees inspected its toilet paper dispensers, and any such conclusion “rests on
speculation.” I disagree. In my view, this conclusion is inescapable as it derives from a
logical deduction from the uncontroverted evidence. The evidence established that
defendant’s employees inspected the restroom every 15-30 minutes. Common sense
would seem to dictate that these employees had their eyes open when they performed the
restroom inspections, and therefore that they would have seen if a toilet paper dispenser
had been in an improper and “hazardous” position. Such “speculation," in my judgment,
does not require that this case must be relegated “to a jury," and cannot be decided as a
matter of law.

        In sum, if the majority continues to abide by the understanding of premises
liability reflected in this case, the effect will be severely damaging upon even the most
responsible business and private landowners in this state. As correctly observed by the
defendant restaurant,

             When this Court [holds] that something as innocuous as a routine,
      toilet paper dispenser constitutes a “dangerous condition” causing an
      “unreasonable risk of harm,” without any evidence that the defendant
      business created, knew, or should have known that such an ordinary device
      on its premises constituted such a danger, then any accident that occurs on
      the premises of a business establishment in this state becomes
      compensatory.

      CORRIGAN and YOUNG, JJ., join the statement of MARKMAN, J.




                         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.
                         December 3, 2010                    _________________________________________
       d1130                                                                 Clerk
