Opinion
Nos. 136065 and 136096.
June 13, 2008.
Court of Appeals No. 274088.
Order Granting Oral Argument in Case Pending on Application for Leave to Appeal June 13, 2008.
We direct the clerk to schedule oral argument on whether to grant the applications or take other peremptory action. MCR 7.302(G)(1). At oral argument, the parties shall address (1) whether the decedent was a trespasser or an implied licensee and whether the plaintiff has established genuine issues of material fact on this question, (2) whether the defendants owed a duty to the decedent and, if so, whether they breached that duty, (3) whether the sand pile where the accident occurred was an attractive nuisance and whether the plaintiff has established genuine issues of material fact on this question, (4) whether the defendants engaged in willful and wanton misconduct and whether the plaintiff has established genuine issues of material fact on this question, and (5) whether the recreational land use act, MCL 324.73301(1), has any applicability in this case and, if so, whether it bars the plaintiffs claims. The parties shall file supplemental briefs within 42 days of the date of this order addressing the fifth question, and they may address the other issues in this case as well, but they should avoid submitting mere restatements of the arguments made in their application papers. The motion for stay of trial court proceedings is granted.
I concur in the decision to schedule oral argument on the application. But I dissent from that part of the order directing the parties to address "whether the recreational land use act, MCL 324.73301(1), has any applicability in this case and, if so, whether it bars the plaintiffs claims." Although this may be an interesting issue to address in the appropriate case, it is not properly before the Court because defendants have not raised the recreational land use act as a defense.
WEAVER, J. I join the statement of Justice KELLY.