Order                                                                                        Michigan Supreme Court
                                                                                                   Lansing, Michigan

  February 4, 2011                                                                                     Robert P. Young, Jr.,
                                                                                                                 Chief Justice

  140889                                                                                               Michael F. Cavanagh
                                                                                                             Marilyn Kelly
                                                                                                       Stephen J. Markman
                                                                                                       Diane M. Hathaway
  TIMOTHY JONES and CHRYSTAL JONES,                                                                        Mary Beth Kelly
           Plaintiffs-Appellees,                                                                           Brian K. Zahra,
                                                                                                                      Justices
  v                                                                 SC: 140889
                                                                    COA: 285099
                                                                    Macomb CC: 2007-001010-NO
  DAIMLERCHRYSLER CORPORATION,
          Defendant-Appellant.

  _________________________________________/

         On order of the Court, the application for leave to appeal the January 7, 2010
  judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in
  lieu of granting leave to appeal, we REVERSE that portion of the Court of Appeals
  decision reinstating one aspect of the plaintiffs’ premises liability claim and we
  REINSTATE the summary disposition ruling of the Macomb Circuit Court. The
  defendant premises owner did not have a duty to protect the injured plaintiff, an
  employee of an independent contractor hired to perform construction work on the
  owner’s premises, from the hazardous condition that contributed to the plaintiff’s injury,
  where the defendant delegated to the contractor the task of performing the construction
  work. Banaszak v Northwest Airlines, Inc, 485 Mich 1034 (2010); Young v Delcor
  Assoc, 477 Mich 931 (2006). Moreover, even if premises liability had applied, the
  injured plaintiff could not have recovered where he was aware of the hazard, and indeed
  had ordered its creation. Riddle v McLouth Steel Products Corp, 440 Mich 86 (1992).
  The Court of Appeals theory of liability based on the presence, location and design of the
  hinged metal floor hatch lacks legal and factual merit. The plaintiff, who ordered the
  hatch to be opened, was not injured by the presence, location and design of the hatch, but
  rather by falling through the hole that was created when the hatch was opened. An owner
  of property cannot be held liable under premises liability law for a design of the property
  that permits an invitee or person in control of the property to create a hazardous condition
  where none existed before.

         MARILYN KELLY, J., would grant leave to appeal.

         HATHAWAY, J., would deny leave to appeal.



                           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.
                           February 4, 2011                    _________________________________________
           0201                                                                Clerk
