STATE OF MICHIGAN

                            COURT OF APPEALS



SUSAN BLACKWELL,                                                   FOR PUBLICATION
                                                                   January 31, 2017
               Plaintiff-Appellant,

v                                                                  No. 328929
                                                                   Oakland Circuit Court
DEAN FRANCHI and DEBRA FRANCHI,                                    LC No. 14-141562-NI

               Defendant-Appellee.


Before: K. F. KELLY, P.J., and GLEICHER and SHAPIRO, JJ.

K. F. KELLY (dissenting).

       I respectfully dissent. The relevant inquiry is not whether the step was open and obvious,
but whether the dark room was open and obvious.

        I agree with the majority that plaintiff was a licensee for whom defendants had an
obligation to warn of hidden dangers. At the heart of this matter is what constituted the “danger”
to plaintiff – the unexceptional 8-inch step or the dark room? At oral argument, plaintiff’s
attorney conceded that there was absolutely nothing remarkable about the step. Counsel
specifically acknowledged that it was a normal 8-inch step that, had the room been properly lit,
would have been open and obvious. Plaintiff claims that the step was a danger because it was
“unknown.” However, it was unknown because plaintiff purposefully entered a dark room to
confront unidentified dangers. The danger was not the stairs, but the dark room itself, which
could have contained a variety of other unspecified and common-place “dangers,” such as
laundry baskets or toys. The fact that the room was not lit was open and obvious. Plaintiff
should have realized the danger entering a dark and unknown room posed. I would affirm
summary disposition in defendants’ favor.

                                                            /s/ Kirsten Frank Kelly




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