Burnett v. Bruner, Docket No. 220039.

Citation247 Mich. App. 365,636 N.W.2d 773
Decision Date28 November 2001
Docket NumberDocket No. 220039.
PartiesR. Celestia BURNETT, Plaintiff-Appellee, v. Bernadine BRUNER, Defendant-Appellant.
CourtCourt of Appeal of Michigan (US)

Charles E. Kovsky, P.C. (by Charles E. Kovsky), Livonia, for plaintiff.

Rosati Associates, P.C. (by A.D. Rosati), West Bloomfield, for defendant.

Before K.F. KELLY, P.J., and SMOLENSKI and METER, JJ.

SMOLENSKI, J.

Defendant appeals as of right from a judgment entered after a jury verdict in this premises liability action. Defendant argues that the circuit court failed to properly instruct the jury regarding the duty of care owed by a landowner to a licensee. Further, defendant argues that the trial court erroneously denied her motion for judgment notwithstanding the verdict because plaintiff failed to prove the essential elements of her premises liability claim. We reverse and remand for a new trial before a properly instructed jury.

I. Factual and Procedural Background

This case arises out of plaintiff's slip and fall at defendant's home in December 1993. Plaintiff and her husband traveled from Florida to Michigan to visit their daughter, Martha Gordon. Defendant's son Michael, who had been dating Martha for several years, invited plaintiff and her husband to defendant's home. Upon arrival at defendant's home, plaintiff followed Michael across the snow-covered lawn toward defendant's front door. Plaintiff stepped on an unseen depression or elevation beneath the snow, causing her to fall and break her hip.

Plaintiff filed a premises liability action against defendant. The circuit court denied defendant's motion for summary disposition and the case proceeded to a jury trial. After the close of proofs, the jury awarded plaintiff $200,000 in damages, allocating eighty percent comparative fault to defendant and twenty percent comparative fault to plaintiff. The circuit court subsequently denied defendant's motions for new trial and for judgment notwithstanding the verdict. Defendant appeals as of right.

II. Duty of Care Owed to Licensees

Defendant first contends that the circuit court failed to correctly determine the duty of care owed by a landowner to a licensee. As our Supreme Court stated in Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 95-96, 485 N.W.2d 676 (1992):

The threshold issue of the duty of care in negligence actions must be decided by the trial court as a matter of law. In other words, the court determines the circumstances that must exist in order for a defendant's duty to arise (4)(27)

* * *

(4)(27) A negligence action may only be maintained if a legal duty exists which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm. [Citations omitted.]

In premises liability cases, the duty owed by the landowner is determined by the plaintiff's status at the time of injury. In Stitt v. Holland Abundant Life Fellowship, 462 Mich. 591, 596, 614 N.W.2d 88 (2000),1 our Supreme Court explained:

Historically, Michigan has recognized three common-law categories for persons who enter upon the land or premises of another: (1) trespasser, (2) licensee, or (3) invitee. Michigan has not abandoned these common-law classifications. Each of these categories corresponds to a different standard of care that is owed to those injured on the owner's premises. Thus, a landowner's duty to a visitor depends on that visitor's status. [Citations omitted.]

In the instant case, the parties agree that plaintiff was a licensee on defendant's property at the time of her injury. The parties also agree that Preston v. Sleziak, 383 Mich. 442, 175 N.W.2d 759 (1970), overruled in part in Stitt, supra, sets forth the duty of care owed by a landowner to a licensee.2 However, the parties hotly dispute the proper interpretation of Preston. Defendant argues that a licensee must accept the premises in the condition maintained by the landowner for his own use. Further, defendant argues that a licensee is not entitled to expect that the premises will be prepared for his reception or that precautions will be taken for his safety. Plaintiff rejects defendant's interpretation, arguing that a landowner owes a duty to his licensees either to remove dangerous conditions from the premises or to provide adequate warnings about those conditions.

In Preston, supra at 453, 175 N.W.2d 759, our Supreme Court adopted 2 Restatement Torts, 2d, § 342, p. 210, as the best expression of the duty owed by a landowner to his licensees. Section 342 of the Restatement provides:
A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have reason to know of the condition and the risk involved.

On its face, subsection 342(b), appears to support plaintiff's argument that a landowner owes licensees a duty to repair dangerous conditions in preparation for a licensee's visit. However, defendant points to another portion of the Preston holding to support her argument that a licensee must accept the premises in the condition maintained by the landowner for his own use. While discussing the distinction between the duty owed to a licensee and the duty owed to an invitee, the Preston Court quoted 2 Restatement Torts, 2d § 330, comment h, p. 175:

"The use of the premises is extended to [the licensee] merely as a personal favor to him. The explanation usually given by the courts for the classification of social guests as licensees is that there is a common understanding that the guest is expected to take the premises as the possessor himself uses them, and does not expect and is not entitled to expect that they will be prepared for his reception, or that precautions will be taken for his safety, in any manner in which the possessor does not prepare or take precautions for his own safety, or that of the members of his family." [Preston, supra at 451, 175 N.W.2d 759 (emphasis added).]

This language apparently contradicts the language of subsection 342(b), which subjects a landowner to liability if "he fails to exercise reasonable care to make the condition safe." In order to resolve this apparent conflict, we turn to the commentary that accompanies § 342. First, we note that comment d, p. 211, provides:

Inspection. A possessor of land owes to a licensee no duty to prepare a safe place for the licensee's reception or to inspect the land to discover possible or even probable dangers.
A licensee's privilege to enter is a gift, and the licensee, as the recipient thereof, is entitled to expect nothing more than a disclosure of the conditions which he will meet if he acts upon the license and enters, in so far as those conditions are known to the giver of the privilege.
A member of the possessor's family or his social guest is also entitled at most to knowledge of such dangers as the possessor knows or has reason to know. If the possessor knows of the existence of a condition, but has no reason to know that it is dangerous, then he is under no duty to make the disclosure. [Emphasis added.]

In addition, comment e, p. 212, provides, in pertinent part:

The liability of a possessor of land who invites or permits licensees to enter his land is not based upon a duty to maintain it in safe condition. It is based upon his duty to disclose to them the risk which they will encounter if they accept his invitation or permission.

Finally, comment f, p. 212, provides, in pertinent part:

Preparations for licensee's safety. A licensee, in whose visit the possessor has no [economic] interest, is not entitled to expect that special preparations will be made for his safety or that the possessor will warn him of conditions which are perceptible by his senses, or the existence of which can be inferred from facts within the licensee's knowledge. The possessor is entitled to expect that the licensee, realizing all this, will be on the alert to discover conditions which involve risk to him. [Emphasis added.]

A fair reading of the above commentary convinces us that the Restatement was neither intended nor designed to imply a duty owed by a landowner to his licensees to repair or to inspect his property. Rather, the landowner simply owes the licensee a duty to warn of unreasonably dangerous conditions, when the licensee neither knows nor has reason to know of the condition and the risk involved. We believe that this interpretation of § 342 comports with the reasoning utilized by our Supreme Court in Stitt, supra at 596, 614 N.W.2d 88:

A "licensee" is a person who is privileged to enter the land of another by virtue of the possessor's consent. A landowner owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved. The landowner owes no duty of inspection or affirmative care to make the premises safe for the licensee's visit. Typically, social guests are licensees who assume the ordinary risks associated with their visit. [Citations omitted, emphasis added.]

Further, both the Stitt and Preston Courts approved the following jury instructions read by the trial judge in Preston:3 "There is no duty on the part of the host to reconstruct or improve the premises for the purpose of making his house more convenient or more safe for those accepting his hospitality, gratuitously extended. The guest assumes the ordinary risks which attach to the premises.

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