Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  November 10, 2011                                                                 Robert P. Young, Jr.,
                                                                                              Chief Justice

  142965                                                                            Michael F. Cavanagh
                                                                                          Marilyn Kelly
                                                                                    Stephen J. Markman
                                                                                    Diane M. Hathaway
  SANDRA NYLAND and CHARLES NYLAND,                                                     Mary Beth Kelly
           Plaintiffs-Appellees,                                                        Brian K. Zahra,
                                                                                                   Justices
  v                                                      SC: 142965
                                                         COA: 295464
                                                         Muskegon CC: 09-046520-NO
  KMART,
               Defendant-Appellant,
  and
  WILSON-64, L.L.C.,
            Defendant.

  _________________________________________/

         On order of the Court, the application for leave to appeal the March 17, 2011
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the question should be reviewed by this Court prior to the completion of
  the proceedings ordered by the Court of Appeals.

        ZAHRA, J. (concurring).

         I concur in the order denying defendant’s application. I write separately because
  this case represents a unique scenario in which there exists a genuine issue of material
  fact in regard to whether an icy condition presents an unreasonable risk of harm that is
  not open and obvious to casual inspection.

         In March of 2007, plaintiff exited defendant’s store at about 9:00 a.m. and slipped
  on a patch of ice that was underneath dirt. There is no dispute that the ice itself was not
  visible. One of defendant’s employees reported that after the accident he found “ice just
  outside of the door [that] was covered by a layer of dirt.” There was also testimony that
  the dirt had not been intentionally placed over the ice but had accumulated naturally. In
  addition, the record reflects that it was sunny, had not snowed for several days, and the
  parking lot and the area around the entrance were otherwise clear of ice and snow.
  Importantly, these existing weather conditions did not suggest there was a slippery patch
  of ice outside the store. This is not a case where snow covers a walkway and itself warns
                                                                                                               2

invitees of the potential slipping hazard; there was absolutely nothing about the weather
conditions or the dirt patch to warn plaintiff of a potential ice hazard. Accordingly, I
agree with the Court of Appeals that there exists a genuine issue of material fact whether,
under these circumstances, a reasonably prudent person would foresee the icy condition
upon casual inspection and that summary disposition in this case was improper.




                         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.
                         November 10, 2011                   _________________________________________
       t1108                                                                 Clerk
