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Hichey v. Adler's Foodtown3/27/2003
UNPUBLISHED
Plaintiff Geneva Hickey appeals by right from an order granting summary disposition to defendant Adler's Foodtown, Inc. ("Adler's") under MCR 2.116(C)(10). We affirm. This appeal is being decided without oral argument under MCR 7.214(E).
Plaintiff filed a complaint against Adler's on January 13, 2000, alleging that on September 7, 1998, she slipped and fell on an accumulation of water while shopping in Adler's store in Oakland County. The complaint alleged that the store's roof had been leaking " or some time prior to Plaintiff's entrance into Defendant's premises" and that "Defendant was aware of the leaking roof and knowingly failed" to direct customers away from the accumulated water, to warn customers of the dangerous condition, or to remove the dangerous condition. The complaint alleged that plaintiff incurred "serious and permanent injuries to her knees" and "other parts of her body" as a result of her fall. Plaintiff claimed three causes of action: negligence, gross negligence, and nuisance.
On December 2, 2000, Adler's filed a third-party complaint against its landlord, G & C Properties, Ltd. ("G & C"), claiming that G & C had been responsible for keeping the roof of the store in good repair and that it, not Adler's, should be liable for any damages incurred by plaintiff. On February 2, 2001, plaintiff filed an amended complaint adding G & C as a primary defendant in the case. Plaintiff claimed two causes of action with regard to G & C: negligence and gross negligence.
On May 16, 2001, an entity named "Highland Town Center Associates, Inc." ("Highland") later claimed that it, and not G & C, owned the premises in question on the date of the alleged accident. Although the record does not indicate that Highland was added as a party to the lawsuit, Highland nonetheless filed a counter-claim against Adler's on June 11, 2001, claiming that " t the time of the Plaintiff's alleged injury, Adler's and Highland were parties to a lease agreement which required Adler's to procure insurance for the benefit of Highland and to release and hold harmless Highland from claims of personal injury , such as the one described in the principal complaint."
On May 18, 2001, Adler's moved for summary disposition against plaintiff under MCR 2.116(C)(10), arguing that the accumulation of water on which plaintiff allegedly slipped and fell was open and obvious as a matter of law. Plaintiff filed a brief in response to Adler's motion on June 13, 2001, arguing that her cause of action was viable because Adler's admitted in a letter to Highland that the roof leak posed a risk to customers and because the puddle of water was not clearly visible to customers, given the clear color of the water, the light-colored floor, and the pole and display rack that impeded a view of the water.
Plaintiff attached three letters to her responsive brief. A letter from plaintiff's doctor dated August 14, 2000, indicated that plaintiff suffered damage to her knees because of the fall. In a March 18, 1999, letter from an agent of Adler's to Highland, the agent, Robert Roth, stated that "I once again cannot believe that you have not responded to our call to fix the leaking roof." In a March 8, 1999, letter from Roth to Highland, Roth states that "the roof is still leaking and we have had a customer slip & fall in our store. I think we have handled the customer properly, but someone will be hurt again and we have lost many potential customers because the leaky roof."
Plaintiff also attached to her brief excerpts from several depositions. Robert Cleveland, apparently an Adler's employee, testified that the area in which plaintif
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