Garrett v. Sam H. Goodman Bldg. Co., Inc. , 706 N.W.2d 202 ( 2005 )

706 N.W.2d 202 (2005)

Garrett
v.
Sam H. Goodman Bldg. Co., Inc.

No. 128951.

Supreme Court of Michigan.

December 8, 2005.

Application for Leave to Appeal.

SC: 128951, COA: 251793.

On order of the Court, the application for leave to appeal the March 17, 2005 judgment of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of granting leave to appeal, we REVERSE the Court of Appeals affirmance of the trial court's grant of summary disposition in favor of defendant Goodman Building, and we REMAND this case to the Wayne Circuit Court for further proceedings. Summary disposition should not have been granted for defendant Goodman Building because it did not move for summary disposition. Further, summary disposition based on the "open and obvious" doctrine was improper because neither defendant was the premises possessor. Ghaffari v. Turner Constr. Co., 473 Mich. 16, 23, 699 N.W.2d 687 (2005). The Court of Appeals erred in applying Fultz v. Union-Commerce Associates, 470 Mich. 460, 683 N.W.2d 587 (2004), to defendant Goodman Building because it and plaintiff were in contractual privity.

In all further respects, leave to appeal is DENIED because we are not persuaded that the questions presented should be reviewed by this Court.

We do not retain jurisdiction.