Anderson v. Brown Bros., Inc.

• Decision Date: 12 November 1975
• Docket Number: Docket No. 19023
• Citation: 65 Mich.App. 409,237 N.W.2d 528
• Parties: H. C. ANDERSON, as next friend of Donald J. Anderson, and H. C. Anderson, Individually, Plaintiffs-Appellants, v. BROWN BROTHERS, INC., a Michigan Corporation et al., Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 528

237 N.W.2d 528

65 Mich.App. 409

H. C. ANDERSON, as next friend of Donald J. Anderson, and H C. Anderson, Individually, Plaintiffs-Appellants, v. BROWN BROTHERS, INC., a Michigan Corporation et al Defendants-Appellees.

Docket No. 19023.

Court of Appeals of Michigan.

Nov. 12, 1975.

Rehearing Denied Jan. 6, 1976.

Released for Publication Jan. 30, 1976.

Anderson, Carr, Street & Hornbach by Cassius E. Street, Jr., Lansing, for plaintiffs-appellants.

Foster, Lindemer, Swift & Collins by John L. Collins, Denfield, Timmer & Seelye by George H. Denfield, II, John B. Brattin, Lansing, for defendants-appellees.

Before DANHOF, P.J., and D. E. HOLBROOK Jr. and O'HARA, ^* JJ.

D. E. HOLBROOK, Jr., Judge.

Jone 10, 1968, Donald Anderson, aged 14, and a group of friends went swimming in the lake of a gravel pit adjacent to the City of Lansing's Scott Woods Park. When they arrived at the lake there were approximately 50 or 60 people swimming and diving around the lake. They noticed there was a diving board and a raft in the lake. From appearances, they assumed it was part of the park since trails led from the park to the lake and they did not notice any fence or warning signs.

After swimming and diving in one part of the lake for awhile, Donald Anderson and his friends moved to a new area approximately 25 feet away when the area of the lake they were swimming in became crowded. At that point the bank rose approximately 10 feet out of the water. First, they checked the water depth around the bank at which they intended to dive to make sure that it was safe for diving. Discovering that the bottom dropped off sharply about four feet from the bank, Donald Anderson asked one of his friends to mark the drop-off by standing at the edge. He then climbed the bank in preparation for a dive. As he began his dive the bank crumbled beneath him causing him to lose the spring in his jump, and he fell head first into the shallow water.

As a result, Donald Anderson fractured several vertebrae and is almost totally paralyzed from the neck down. He suffers nearly constant physical distress but with the assistance of his family and friends he has been able to attend some college classes although he is virtually helpless as far as taking care of his personal needs.

Construction of the lake began in 1966 when Cheney and Rahfeldt, then owners of the property in question, contracted with Brown Brothers for the removal of gravel. The City of Lansing sought an injunction claiming injury to a public street. By a court order dated December 6, 1966, Cheney and Rahfeldt conveyed the property to the city. The order granted Cheney and Rahfeldt the right to contract for the removal of gravel from the property and to create a man-made lake for the City of Lansing within five years. Paragraph 8 of that order provided:

'IT IS FURTHER ORDERED, that Glen T. Cheney and Albert W. Rahfeldt and their contractor shall erect and maintain a farm type fence of a type to make climbing difficult around the excavation and to erect a gate, all under specifications determined by the Parks Department of the City of Lansing. This fence shall be completed and installed before excavation is done below water level at any point or any water collects in any excavated point on the property.'

The fence was erected but according to testimony, by June, 1968, the fence had broken down. There was also testimony that the gate was not always kept closed, even when there was no excavation work being done. Neighbors testified that they had complained to all the defendants concerning the use of the lake as a swimming area. However, no remedial action was taken before the accident.

The plaintiffs filed a three count complaint against the defendants. Count one alleged nuisance; count two alleged gross negligence or wilful and wanton misconduct; and count three alleged simple negligence. The City of Lansing and Brown Brothers, Inc., moved for summary judgment on counts one and three on the authority of M.C.L.A. § 300.201; M.S.A. § 13.1485. ¹ The City of Lansing also moved for summary judgment on count two on the grounds of governmental immunity. The trial court granted the motion on counts one and three as to all defendants, but denied the City of Lansing's motion for summary judgment on count two because of Maki v. City of East Tawas, 18 Mich.App. 109, 170 N.W.2d 530 (1969), Affirmed, 385 Mich. 151, 188 N.W.2d 593 (1971).

The parties proceeded to trial on the gross negligence or wilful and wanton misconduct count in September, 1973, after waiving jury trial. At the close of plaintiff's proofs the trial court granted defendant's motion for a judgment of no cause of action on count two. The trial court found no evidence of gross negligence or wilful and wanton misconduct. It concluded that defendants were not required to foresee that Donald Anderson would attempt to dive off a bank that would crumble underneath him. It also found that failure by the defendants to keep others out of the gravel pit was not so reckless as to constitute wilful and wanton misconduct. Plaintiffs appeal as of right.

Plaintiffs argue that the trial court erred in granting defendants' motion for summary judgment on the basis of M.C.L.A. § 300.201; M.S.A. § 13.1485, as the statute was not intended to apply to this type of case. Alternatively, plaintiffs argue that the statute is unconstitutional as a violation of due process, equal protection, and article 4, section 24 of the Michigan Constitution. Given our disposition of the first issue we do not reach this issue.

Plaintiffs also argue that the trial court erred in awarding defendants a judgment of no cause of action on the gross negligence count. From my review of the record, however, I cannot say that the trial judge's findings of fact and conclusions of law were clearly erroneous. I therefore would affirm the judgment of no cause of action on the gross negligence count. GCR 1963, 517.1. Ruemenapp v. National Food Stores, Inc., 385 Mich. 648, 189 N.W.2d 330 (1971).

I.

Plaintiffs first argue that they are not within the recreational property owners immunity statute, M.C.L.A. § 300.201; M.S.A. § 13.1485, as the acts that caused the injury, I.e., diving and swimming, are not within the statute. In Taylor v. Mathews, 40 Mich.App. 74, 198 N.W.2d 843 (1972), it was merely assumed that diving was within the statute since they affirmed the trial court's application of the statute. The trial court, however, in its opinion granting the motions for summary judgment in the present case, very logically stated the reason for including 'swimming' and 'diving' within the words 'similar outdoor recreational use'.

'It is the opinion of this court that swimming is the type of recreation that is a natural extension of many of the activities specifically enumerated in the statute and, in the absence of any reason to the contrary, should fall into the category of a 'similar outdoor recreational' activity. To construe the statute otherwise would be to say that a man who wades out in another's lake to fish has no cause of action for injuries, but he is not barred from suit if he changes his mind and goes swimming, and is injured. Equally untenable would be to bar from recovery a person who sustains injuries while he is merely sightseeing or hiking across the land of another and yet to allow the same trespasser to get into court if he should, in the course of his hike, pause for a swim, or if he should purposely go onto Defendants' property and go swimming, and sustain injuries.' (Citation omitted.)

However, to say that the activity of Nonald Anderson is within the statute does not necessarily make the statute applicable. Defendants also must come within the statute.

II.

It is undisputed that the City of Lansing is the legal owner of the land on which the gravel pit is located. While M.C.L.A. § 691.1407; M.S.A. § 3.996(107) (1964 P.A. 170, § 7), gave the City of Lansing complete immunity from its negligence in governmental functions, such was declared unconstitutional in Maki v. City of East Tawas, supra, because of a violation of article 4, section 24, of the Michigan Constitution. ²

Because Maki v. City of East Tawas, supra, eliminated the defense of governmental immunity, the City of Lansing must rely on the recreational property owners immunity statute. Because both statutes deal with a similar subject matter, I.e., immunity from tort liability, it is the duty of this Court to read these two statutes together to reach a consistent result. Rathbun v. Michigan, 284 Mich. 521, 545, 280 N.W. 35 (1938), People v. Martin, 59 Mich.App. 471, 229 N.W.2d 809 (1975). In reading statutes together, as a general rule, it is necessary to look at the state of the law when the second statute was enacted. Lakehead Pipeline Co. v. Dehn, 340 Mich. 25, 134, 64 N.W.2d 903 (1954), Brown v. Department of State, 45 Mich.App. 322, 325, 206 N.W.2d 481 (1973). However, in this case it is necessary to look to the state of the law when the first statute was passed since the second statute, the governmental immunity statute, was enacted as a response to the overruling of common law governmental immunity. ³ See Brown v. Department of State, supra.

When the recreational property owners immunity statute was passed in 1953, there was still common law immunity for municipal corporations from tort liability. Williams v. City of Detroit, 364 Mich. 231, 111 N.W.2d 1 (1961). Although the doctrine was under attack at the time in academic ⁴ and judicial ⁵ circles, the doctrine had continued vitality in 1953. Martinson v. City of Alpena, 328 Mich. 595, 44 N.W.2d 148 (1950).

It is also a rule of statutory construction that this Court will not presume that the Legislature intended to do a useless act. Klopfenstein v. Rohlfing, 356 Mich. 197, 202, 96 N.W.2d 782 (1959), Davis v. Imlay Township Board, 7 Mich.App. 231, 236, 151 N.W.2d 370 (1967). The recreational property owners immunity statute...