Bragan ex rel. Bragan v. Symanzik, Docket No. 247287.

CourtCourt of Appeal of Michigan (US)
Citation263 Mich. App. 324,687 N.W.2d 881
Docket NumberDocket No. 247287.
PartiesValentine BRAGAN, a Minor, By his Next Friend, Robert BRAGAN, Plaintiff-Appellant, v. Eugene SYMANZIK, Carolyn Symanzik, and Symanzik's Berry Farms, Defendants-Appellees.
Decision Date13 October 2004

Mindell, Malin & Kutinsky (by Brian A. Kutinsky), Southfield, for the plaintiff.

Moblo & Fleming, P.C. (by Richard E. Moblo and Cheryl L. Ronk), Novi, for the defendant.

Before: MURPHY, P.J., and JANSEN and COOPER, JJ.


Plaintiff Valentine Bragan appeals as of right the trial court's order dismissing his claims of negligence, failure to supervise, and failure to warn against defendants Eugene and Carolyn Symanzik and Symanzik's Berry Farms, pursuant to MCR 2.116(C)(10) in this premises liability action. Plaintiff urges this Court to find that plaintiff's age is relevant to the determination that a dangerous condition is open and obvious. We find that landowners owe a special duty of care to child invitees, and therefore, reverse and remand for further proceedings.

I. Facts and Procedural History

Plaintiff, an eleven-year-old boy, was injured at defendants' facility when he fell from a "Jacob's Ladder."1 Defendants constructed the Jacob's Ladder in the "Fun Barn" by tying the top of the ladder to eaves ten feet in the air. The object of the Jacob's Ladder is to climb to the top and ring a bell, but 90% of climbers fall.2 Recognizing the danger of a fall from such a height, defendants placed bales of straw under the ladder in the beginning of the busy season. As the bales broke apart, defendants maintained piles of straw under the ladder two feet deep. Defendants testified that they checked the depth of the straw on an hourly basis to ensure the safety of the attraction.

On the day of the accident, plaintiff accompanied his parents, Robert and Suzanna Bragan, to the Symanzik Berry Farms. Unsupervised by his parents, plaintiff and a friend went into the barn to climb the Jacob's Ladder. After waiting in line, plaintiff climbed the ladder to the top and began to descend. About halfway down, plaintiff fell and fractured both wrists when he hit the barn floor. Plaintiff and his father testified that there was barely enough straw to cover the ground under the ladder. Furthermore, defendants had not posted an employee in the barn to supervise the children, and plaintiff and his father were unable to locate anyone for assistance.

Defendants moved for summary disposition of plaintiff's claims pursuant to MCR 2.116(C)(10), arguing that the danger from the ladder and the lack of straw underneath was open and obvious. Plaintiff contended that a child could either not appreciate such a danger or that defendants owed a special duty of care, as the ladder was created for their child business invitees. The trial court disagreed and granted defendants' motion. The trial court found that both the danger from the Jacob's Ladder and the lack of straw were open and obvious, and therefore not unreasonably dangerous. The court also declined to find that the use by children of the Jacob's Ladder was a special aspect removing the condition from the open and obvious doctrine.

II. Legal Analysis

We review a trial court's determination regarding a motion for summary disposition de novo.3 A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff's claim.4 "In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), we consider the affidavits, pleadings, depositions, admissions, or any other documentary evidence submitted in [the] light most favorable to the nonmoving party to decide whether a genuine issue of material fact exists."5 Summary disposition is appropriate only if there are no genuine issues of material fact, and "the moving party is entitled to judgment as a matter of law."6

A. Duty of Care to Minors

It is well-established under Michigan law that minors are not held to the same standard of care as adults. Minors are required only to exercise "that degree of care which a reasonably careful minor of the age, mental capacity and experience" of other similarly situated minors would exercise under the circumstances.7 Likewise, reasonable care requires a person to "exercise greater vigilance" when he knows or should know that children are nearby as "children act upon childish instincts and impulses."8

Landowners owe a heightened duty of care to known child trespassers. Normally, the only duty owed to a trespasser is to refrain from wanton and willful misconduct.9 Pursuant to the attractive nuisance doctrine, however, the landowner is liable for harm caused by a dangerous artificial condition located where children are known to trespass if children would not likely realize the danger and the owner fails to use reasonable care to eliminate a danger whose burden outweighs its benefit.10 In Taylor v. Mathews,11 this Court determined that "there is no fixed age at which a child does and can be expected to realize any particular risk, as a matter of law."12 Accordingly, it was a question for the jury whether the child trespasser could realize the risk of diving into the defendant's gravel pit.13

Landowners also owe a heightened duty of care to child licensees. Normally, "[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."14 In Klimek v. Drzewiecki,15 this Court found that landowners owe a duty of "reasonable or ordinary care to prevent injury to the child" licensee.16

This Court recently explained the necessity of imposing a heightened duty of care by landowners to child licensees as follows:

"If the licensees are adults, the fact that the condition is obvious is usually sufficient to apprise them, as fully as the possessor, of the full extent of the risk involved in it. On the other hand, the possessor should realize that the fact that a dangerous condition is open to the perception of child licensees may not be enough to entitle him to assume that they will appreciate the full extent of the risk involved therein."[17]

In Kosmalski v. St. John's Lutheran Church, the minor plaintiff was injured by shattered glass when a younger child opened a glass door against the plaintiff's extended arm.18 Whether the glass door presented an unreasonable risk of harm depended on the age of the licensee.

Because children could use this door to access the activity room and children are unlikely to appreciate the risk of harm that may result from the shattering of a nonsafety-glass door, we conclude that plaintiffs have established a genuine issue of material fact regarding whether the door at issue here involved an unreasonable risk of harm.[19]

Pursuant to the Restatement approach, landowners are liable to child licensees and invitees in any situation in which they would be liable to child trespassers.20 Comments b and c to § 343B are especially instructive:

b. Where the child is not upon the land as a trespasser, but is a licensee or an invitee, the possessor of the land is no less obligated to anticipate and take into account his propensities to inquire into or to meddle with conditions which he finds on the land, his inattention, and his inability to understand or appreciate the danger, or to protect himself against it. . . .
* * *
c. Because of his status as a licensee or an invitee, the child may be entitled to greater protection than that afforded to a trespasser. This Section is intended to say only that he is entitled to at least as much.[21]
B. Open and Obvious Doctrine

Our courts have never addressed whether child invitees are entitled to a heightened duty of care. As a general rule, "a premises possessor owes a duty to an invitee to exercise reasonable care to protect the invitee from an unreasonable risk of harm caused by a dangerous condition on the land."22 An invitor is protected from liability, however, if the danger is open and obvious.23 Michigan's open and obvious doctrine was initially based on the Restatement of Torts.24 Under the Restatement approach, a premises possessor is not liable for harm caused by known or obvious dangers "unless the possessor should anticipate the harm despite such knowledge or obviousness."25 A possessor must still warn or protect an invitee against open and obvious dangerous conditions when the possessor should anticipate the harm.26

However, in Lugo v. Ameritech Corp, our Supreme Court replaced the Restatement approach with a special aspects analysis as follows:

[T]he general rule is that a premises possessor is not required to protect an invitee from open and obvious dangers, but if special aspects of a condition make even an open and obvious risk unreasonably dangerous, the premises possessor has a duty to undertake reasonable precautions to protect invitees from that risk.[27]

A special aspect exists when the danger, although open and obvious, is unavoidable or imposes a "uniquely high likelihood of harm or severity of harm."28 Pursuant to Lugo, a court must "focus on the objective nature of the condition of the premises at issue, not on the subjective degree of care used by the plaintiff" or other idiosyncratic factors related to the particular plaintiff.29

The Supreme Court recently solidified this novel legal premise in Mann v. Shusteric Enterprises, Inc, where the plaintiff visited the defendant bar during a blizzard.30 After the defendant served the plaintiff nine drinks in a three-hour period, the visibly intoxicated plaintiff exited the bar.31 The plaintiff slipped, fell, and was injured on ice and snow that the defendant had allowed to accumulate in the parking lot.32 The Supreme Court held that courts must examine whether a danger is open and obvious, and whether special aspects render an open and...

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    ...approach is dead because Lugo , and only Lugo , is the law in Michigan." Id. at 336, 683 N.W.2d 573. See also Bragan v. Symanzik , 263 Mich. App. 324, 331, 687 N.W.2d 881 (2004) (stating that "in Lugo v. Ameritech Corp. , our Supreme Court replaced the Restatement approach with a special as......
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