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158300 - Keith Smith v City of Detroit

Keith Smith,


Gerald Acker





(Appeal from Ct of Appeals)



(Wayne – Gibson, S.)


City of Detroit,









Merlo Construction Company, Inc.,


John Schutza










Rauhorn Electric, Inc.,












Parsons Brinckerhoff Michigan, Inc., and Poco, Inc,.







Plaintiff was riding his bicycle one evening in the city of Detroit and came upon an area of sidewalk where two slabs of concrete were missing, having been removed a few days earlier by defendant Merlo Construction Company as part of a sidewalk repair project. Plaintiff’s bicycle flipped, throwing him to the ground. He filed this lawsuit against the city of Detroit and additional defendants who were involved in the project. As to plaintiff’s claim against Merlo Construction, the trial court granted defendant’s motion for summary disposition, holding that plaintiff’s allegations constituted a premises liability claim and that the hazard was open and obvious. The Court of Appeals agreed that the case was based on premises liability, but concluded that a question of fact existed whether the hazard was open and obvious. Consequently, the appeals court reversed and remanded to the trial court for further proceedings. One judge dissented from the majority holding that there was a question of fact whether the hazard was open and obvious. The Supreme Court has ordered oral argument on plaintiff’s application for leave to appeal as cross-appellant to address whether defendant cross-appellee maintained possession and control over the sidewalk such that plaintiff’s claim is based on premises liability rather than ordinary negligence. Compare Orel v Uni-Rak Sales Co Inc, 454 Mich 564 (1997), and Finazzo v Fire Equipment Co, 323 Mich App 620 (2018), with Fraim v City Sewer of Flint, 474 Mich 1101 (2006).