Randall v. Harrold

• Decision Date: 24 January 1983
• Docket Number: Docket No. 59995
• Citation: 121 Mich.App. 212,328 N.W.2d 622
• Parties: C. Donald RANDALL, individually and as the personal representative of the estate of Charles E. Randall, deceased, Plaintiff-Appellant, v. Jesse F. HARROLD and Virginia Harrold, Defendants-Appellees, and Delta Charter Township and Robert Elliot, Defendants. 121 Mich.App. 212, 328 N.W.2d 622
• Court: Court of Appeal of Michigan — District of US

Page 622

328 N.W.2d 622

C. Donald RANDALL, individually and as the personal representative of the estate of Charles E Randall, deceased, Plaintiff-Appellant, v. Jesse F. HARROLD and Virginia Harrold Defendants-Appellees and Delta Charter Township and Robert Elliot, Defendants.

Docket No. 59995.

121 Mich.App. 212, 328 N.W.2d 622

Court of Appeals of Michigan.

Submitted Aug. 17, 1982.

Decided Nov. 4, 1982.

Released for Publication Jan. 24, 1983.

[121 MICHAPP 213] Sinas, Dramis, Brake, Boughton, McIntyre & Reisig, P.C. by Kenneth G. McIntyre, Lansing, for plaintiff-appellant.

Foster, Swift, Collins & Coey, P.C. by James D. Adkins, Lansing, for defendants-appellees.

Before DANHOF, C.J., and J.H. GILLIS and KNOBLOCK, ^* JJ.

[121 MICHAPP 214] PER CURIAM.

Plaintiff appeals, by leave granted, from an order of partial summary judgment entered pursuant to GCR 1963, 117.2(1) in favor of defendants Jesse and Virginia Harrold.

Plaintiff commenced this wrongful death action for the loss of his five-year-old son who drowned in a lagoon located on property previously owned by the Harrolds. Count I of plaintiff's complaint alleged gross negligence and willful and wanton misconduct. Counts II and III alleged nuisance per se and nuisance in fact respectively. Count IV alleged ordinary negligence.

The trial court ruled that the recreational users Statute, M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485, barred all of plaintiff's claims except with respect to Count I. We granted plaintiff's application for leave to take an interlocutory appeal.

Plaintiff first claims that the trial court erred by ruling that the statute bars claims of ordinary negligence where the injury occurs to a person who is less than seven years of age. We disagree. M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485, provides the following:

"Sec. 1. No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use, with or without permission, against the owner, tenant, or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant, or lessee."

See also M.C.L. Sec. 317.176; M.S.A. Sec. 13.1482(6).

In Heider v. Michigan Sugar Co., 375 Mich. 490, 134 N.W.2d 637 (1965), plaintiff sought recovery for [121 MICHAPP 215] defendant's ordinary negligence after plaintiff's two sons, ages 8 and 12 1/2, were drowned in a pond on defendant's property. The Supreme Court held that the statute applies to minors and that plaintiff's complaint failed to state a cause of action. 375 Mich. 507, 134 N.W.2d 637. See also Taylor v. Mathews, 40 Mich.App. 74, 81, 198 N.W.2d 843 (1972).

Plaintiff seeks to avoid these holdings by claiming that the statute was intended only to be applied in those situations where plaintiff's own negligence could be considered in determining whether to impose liability. He claims that because the defense of contributory negligence did not apply to children under the age of seven, the statute has no application in this case. We find these claims to be without merit. In Thomas v. Consumers Power Co., 58 Mich.App. 486, 228 N.W.2d 786 (1975), rev'd in part 394 Mich. 459, 231 N.W.2d 653 (1975), the Court stated the following in discussing this statute:

"[T]his statute does not change the common-law duty of owners and occupiers of property owed to those who come upon such property as mere licensees, as were the plaintiffs in this case. The act is merely a codification of tort principles which are universally recognized in common-law jurisdictions.

" 'A licensee, as distinguished from an invitee, is one who enters another's land because personal benefit will be derived by so doing; and while there his presence is merely tolerated.' Cox v. Hayes, 34 Mich.App. 527, 192 N.W.2d 68 (1971).

The act in question has the undoubted purpose of furthering recreational activities in Michigan by making certain areas available for such purposes while clearly restating the common-law liability of owners to those who come gratuitously upon their land. Under these circumstances and to carry out the undoubted intention of the legislature, it would seem the statute should be liberally construed. Courts should lean toward[121 MICHAPP 216] that construction which will give the statute force and validity, not to that construction which would nullify it. Thomas Canning Co. v. Southern Pacific Co., 219 Mich. 388, 400, 189 N.W. 210 (1922); Pigorsh v. Fahner, 386 Mich. 508, 514, 194 N.W.2d 343 (1972). The statute neither restricts nor adds to the common-law rights of the plaintiffs." Thomas, supra, 58 Mich.App. at p. 492, 228 N.W.2d 786.

In Graves v. Dachille, 328 Mich. 69, 77, 43 N.W.2d 64 (1950), plaintiffs' 6 1/2-year-old son drowned in a pool located on defendants' property. The Court held that plaintiffs' failure to establish gross negligence on the part of defendants required reversal of the jury's verdict in favor of plaintiffs. Since the decision in Graves, supra, represented the common law which existed at the time the statute was enacted, it is clear that the fact that plaintiff's son was under the age of seven at the time he drowned does not deprive defendants of the statute's protection.

Also without merit is plaintiff's claim that the Supreme Court's adoption of the doctrine of comparative negligence in Placek v. Sterling Heights, 405 Mich. 638, 275...