Jogger's suit arising out of 6" deep hole in track is summarily dismissed

Vanessa Hill was jogging at the YMCA in Flint, when she stepped into a hole that was 8 inches wide and 6 inches deep.  She claimed that she didn't see the hole because her focus was out ahead of her stride and that there was sand spread around the hold that disguised it and made it less conspicuous.  The Defendants contradicted her claim, arguing that while they had identified the hole 12 hours before Hill was hurt, they did not fill it with sand until the following day.  Therefore, they argued, the hole was "open and obvious" and they owed no duty to Hill to correct it. 

The trial judge concluded that given the testimony of the Defendants' employees, a reasonable person would have observed the hole "on casual inspection" and summarily dismissed Hill's claim.  She appealed, arguing that given the conflict over the presence of sand and the conspicuity of the hole, the Judge erred by deciding a question of fact.  Two of the Court of Appeals' judges on the three-judge panel agreed with the Y and upheld the summary disposition of Hill's claim.  They apparently decided that no reasonable person could believe Hill and disbelieve the Y employees--and that no reasonable juror could conclude that the hole in the asphalt was not "obvious."  Under the law as it existed for a century, these decisions were reserved by our State Constitution to a jury of the parties' peers.