Court of Appeals majority weighs facts and dismisses fall in parking lot

Stacey Coleman's shoe caught in a large crack in the asphalt of an Applebee's restaurant in Oakland, causing her to fall and break an ankle. She and two adult companions claimed that the lot was not adequately lit and that they could not see the crack as they approached it. They also returned to the location two days later and took photographs which did not depict any lighting in the area. In opposition, the Applebee's managers claimed that they checked for burned out lights on a weekly and daily basis and produced records suggesting that no bulbs had been replaced in this area of the lot over a two month period. Under the law, the judge is not allowed to weigh conflicting testimony in passing on a motion for summary disposition, however, that is precisely what occurred in Coleman's claim. The trial judge ruled that the crack must have been "open and obvious" to Coleman "on casual inspection" and dismissed her claim. Two judges of the Court of Appeals concurred in this assessment of the evidence, concluding that even if Coleman didn't see the crack while leaving the restaurant in the dark, she should have seen it on the way into the restaurant earlier. Judge Fort Hood dissented, noting the obvious: the dismissing judges were essentially weighing the conflicting testimony and choosing the testimony of the restaurant managers over the testimony of the three patrons.