Cheeseman v. American Multi-Cinema, Inc.

• Decision Date: 05 August 1981
• Docket Number: Docket No. 49420,INC,MULTI-CINEM
• Citation: 310 N.W.2d 408,108 Mich.App. 428
• Parties: Linda CHEESEMAN, as Guardian of the Estates of Bridget E. Cheeseman, Amaryllis M. Cheeseman, Collette Cheeseman, and William B. Cheeseman, Scott Hamilton and Richard Hamilton, By Their Next Friend, Plaintiffs-Appellants, v. AMERICAN, Defendant-Appellee. 108 Mich.App. 428, 310 N.W.2d 408
• Court: Court of Appeal of Michigan — District of US

Page 408

310 N.W.2d 408

Linda CHEESEMAN, as Guardian of the Estates of Bridget E Cheeseman, Amaryllis M. Cheeseman, Collette Cheeseman, and William B. Cheeseman, Scott Hamilton and Richard Hamilton By Their Next Friend, Plaintiffs-Appellants, v. AMERICAN MULTI-CINEMA, INC., Defendant-Appellee.

Docket No. 49420.

108 Mich.App. 428, 310 N.W.2d 408

Court of Appeals of Michigan.

Aug. 5, 1981.

Released for Publication Sept. 28, 1981.

[108 MICHAPP 430] Kenneth Laing, Jr., Lansing, for plaintiffs-appellants.

Philip J. Kessler, Bloomfield Hill, for defendant-appellee.

Before Chief Judge DANHOF, P. J., and MAHER and BEASLEY, JJ.

BEASLEY, Judge.

The six minor plaintiffs, whose ages range from 6 to 15, brought an action against defendant, American Multi-Cinema, Inc., alleging age discrimination under the Michigan Civil Rights Act. ¹ The following findings of fact by the trial judge were undisputed by the parties:

"On or about January 16, 1979, the four Cheeseman children who are plaintiffs in this lawsuit were denied admission to the defendant's theater in Meridian Mall where the movie 'Animal House' was showing. Their parents, William B. Cheeseman, Sr. and Linda Cheeseman, had accompanied them to the theater and attempted to purchase tickets for them. Since their parents did not intend to attend the movie with the Cheeseman children, the defendant denied admission to them because they were minors.

"On or about January 7, 1979, Mark Rilling purchased tickets for his two stepchildren, Scott Hamilton and Richard Hamilton, so that these minors might attend the movie 'Animal House' at defendant's theater in the Meridian Mall in Ingham County, Michigan. [108 MICHAPP 431] Scott Hamilton and Richard Hamilton were admitted to see the movie 'Animal House,' but upon the defendant's agents observing that they were not accompanied by an adult, Scott Hamilton and Richard Hamilton were ejected from the theater and not permitted to see the movie 'Animal House'.

"During its exhibition of 'Animal House' at the Meridian Mall theater, the defendant's admission policy was to admit persons under age 18 to see the film only if accompanied into the theater by a parent or an adult guardian. Defendant would have permitted the minors to see the movie 'Animal House' had they been accompanied by a parent or an adult guardian.

"There is no dispute as to these facts. The defendant refused six unchaperoned children, ages 6-15, inclusive, admission to sit through the film 'Animal House'. This is an 'R' rated film." (Citations omitted.)

Plaintiffs demanded an injunction enjoining defendant and its agents from denying the minor plaintiffs admittance to its theatres on the basis of age. In response to the complaint, defendant filed an answer and a motion for summary judgment. Prior to the hearing on defendant's motion, plaintiffs filed an answer to the motion and also moved for summary judgment.

After a hearing on the motions, the trial court issued a written opinion and entered an order granting summary judgment to defendant, denying plaintiffs' cross-motion, and awarding attorney fees to defendant. Plaintiffs appeal as of right.

On appeal, we hold that defendant theatre may deny admission to these six children to view the "R" rated movie "Animal House" when unaccompanied by a parent or legal guardian, even though consent was given by a parent or legal guardian, by virtue of the "except where permitted by law" exception in the statute.

Plaintiffs' claim for relief rests entirely upon the [108 MICHAPP 432] Michigan Civil Rights Act. No constitutional issue is raised or involved. Section 102 of the statute provides:

"The opportunity to obtain employment, housing and other real estate, to refuse polygraph, psychological stress evaluation, or similar tests in employment situations, and the full and equal utilization of public accommodations, public service and educational facilities without discrimination because of religion, race, color, national origin, age, sex, height, weight, or marital status as prohibited by this act is recognized and declared to be a civil right." (Emphasis added.) M.C.L. § 37.2102; M.S.A. § 3.548(102).

Section 301 defines the term "place of public accommodation" as follows:

"(a) 'Place of public accommodation' means a business, or an educational, refreshment, entertainment, recreation, health, or transportation facility, or institution of any kind, whether licensed or not, whose goods, services, facilities, privileges, advantages, or accommodations are extended, offered, sold, or otherwise made available to the public." (Emphasis added.) M.C.L. § 37.2301(a); M.S.A. § 3.548(301)(a).

Section 302 provides:

"Except where permitted by law, a person shall not:

"(a) Deny an individual the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service because of religion, race, color, national origin, age, sex, or marital status." (Emphasis added.) M.C.L. § 37.2302; M.S.A. § 3.548(302).

Thus, this civil rights legislation has a two-sided thrust. One relates to certain defined activities which are declared to be civil rights possessed by [108 MICHAPP 433] each of us. Relevant here is the civil right to be free from discrimination based on age, except where permitted by law.

The other side of the statute relates to limitations placed on each of us. A person is prohibited from denying to any one full and equal enjoyment of the facilities of a place of public accommodation because of age, except where permitted by law.

The latter emphasized portion is clear indication of the intent of the Legislature to retain and apply a practical rule of reason to the prohibition against discrimination on the basis of age. Otherwise, literal application of the prohibition against age discrimination would outlaw many regulations, rules, laws and policies designed to protect children. We believe it is clear that, by adding the words "except where permitted by law", the Legislature intended, among other things, to retain age discrimination as a protection to children.

In ascertaining and giving effect to the intention of the Legislature, we follow the teleological approach adopted in People v. McFarlin. ² As in Salas v. Clements, ³ we seek a construction of the statute that will avoid an absurd result.

In interpreting the words "except where permitted by law", we do not believe the Legislature intended to mean only "statutory law". If the Legislature had so intended, it could easily have so indicated. Rather, the Legislature intended "law" to mean the common law and the constitutional law in addition to statutory law. The cases support this conclusion. For example, in Dauer v. Zabel, ⁴ we said:

[108 MICHAPP 434] " 'The law of a state is to be found in its statutory and constitutional enactments as interpreted by its courts and, in the absence of statute law, in the rulings of its courts.' "

The common law forms an essential part of the "law" of this state. ⁵

At common law, owners of movie theatres are liable for foreseeable injuries to their patrons. ⁶ Furthermore, an owner who invites a minor onto his premises has a duty of due care which must take into account the immaturity and inexperience of the minor. ⁷

In Moning v. Alfono, ⁸ the Court said:

" 'One has no right to demand of a child, or of any other person known to be wanting in ordinary judgment or discretion, a prudence beyond his years or capacity, and therefore in his own conduct, where it may possibly result in injury, a degree of care is required commensurate to the apparent immaturity or imbecility that exposes the other to peril.' "

This recognition by the Court of children's limitations led to its holding that it was reasonable to deny them access to certain dangerous articles (for example, slingshots, in Moning). Also, producers and exhibitors of motion pictures have been faced with liability for allowing minors access to sexually[108 MICHAPP 435] explicit or violent films, even where such films were not obscene for minors. ⁹

Thus, it can be argued that refusing admission of unescorted children to motion pictures designed for mature audiences is not only "permitted" but may be actually required to avoid civil liability.

The dissimilarity between children and adults has been recognized and used as a basis for restricting children's access to certain materials. ¹⁰ In Ginsberg v. New York, ¹¹ the United States Supreme Court was faced with deciding whether a New York criminal obscenity statute, which prohibited sale to minors under 17 of material defined to be obscene, was constitutional. Defendant had argued that, since the material was not legally obscene for adults, constitutional freedom of expression could not be limited by a statute denying minors under 17 access to such material.

The Supreme Court rejected defendant's claims, finding no invasion by the New York statute of "minors constitutionally protected freedoms", saying, among other things:

"That the State has power to make that adjustment seems clear, for we have recognized that even where there is an invasion of protected freedoms 'the power of the state to control the conduct of children reaches beyond the scope of its authority over adults * * *.' * * *

"The well-being of its children is of course a subject within the State's constitutional power to regulate, and, in our view, two interests justify the limitations in § 484-h upon the availability of sex material to minors [108 MICHAPP 436] under 17, at least if it was rational for the legislature to find that the minors' exposure to such material might be harmful. First of all, constitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society. 'It is cardinal with us that the custody, care and nurture of the child...