Doran v. Combs, Docket No. 67081

• Decision Date: 19 September 1984
• Docket Number: Docket No. 67081
• Citation: 354 N.W.2d 804,135 Mich.App. 492
• Parties: Bertha DORAN and J.W. Doran, Plaintiffs-Appellants, v. Jan S. COMBS, Defendant-Appellee. 135 Mich.App. 492, 354 N.W.2d 804
• Court: Court of Appeal of Michigan — District of US

Page 804

354 N.W.2d 804

Bertha DORAN and J.W. Doran, Plaintiffs-Appellants, v. Jan S. COMBS, Defendant-Appellee.

Docket No. 67081.

135 Mich.App. 492, 354 N.W.2d 804

Court of Appeals of Michigan.

Submitted Nov. 7, 1983.

Decided June 19, 1984.

Released for Publication Sept. 19, 1984.

[135 MICHAPP 494] Sablich, Ryan, Bobay & Pollok, P.C. by Mark S. Farrell, Lansing, for plaintiffs-appellants.

Valenti, Winiemko & Bolger by Ronald C. Winiemko, Birmingham, for defendant-appellee.

Before HOOD, P.J., and R.B. BURNS and SHUSTER ^*, JJ.

PER CURIAM.

Plaintiffs appeal as of right from a jury verdict of no cause of action and the July 12, 1982, court order reflecting that verdict.

Plaintiff Bertha Doran, defendant's former mother-in-law, brought defendant's children home after her son's weekend visitation with them. Ms. Doran pulled into defendant's driveway, alighted from her car, fell, and broke her ankle. At the close of plaintiffs' proofs in this negligence action, defendant moved for a directed verdict, arguing in part that the Dorans failed to present any evidence that Bertha Doran was an invitee rather than a licensee. The trial court denied that part of defendant's motion stating,

[135 MICHAPP 495] "[I]t's the court's opinion that she was certainly an invitee. She had an invitation to deliver the children to her [defendant's] home, and to drop them off, and to go in and visit and return to her car and leave, and at any time that the father exercised visitation."

At the close of defendant's proofs, plaintiff moved for a directed verdict and requested a finding and instruction that, as a matter of law, Bertha Doran was an invitee on defendant's property at the time of the accident. Defendant renewed her motion for a directed verdict. Following a review of Leveque v. Leveque, 41 Mich.App. 127, 199 N.W.2d 675 (1972), the trial court stated:

"I think there are questions of fact that ought to be resolved as to whether she was an invitee, or a licensee. That is something the jury can mull over and decide for themselves."

The court went on to state that Bertha Doran's service to defendant in returning the children to defendant's home was mutually beneficial to the parties; Ms. Doran did not have to referee an altercation between her son and his ex-wife, and defendant was spared a trip and a possible altercation with her ex-husband.

Plaintiffs' sole issue on appeal is that the trial court erred by failing to find and instruct the jury that Bertha Doran was an invitee as a matter of law. We agree.

The duty owed by a landowner depends upon the status of the injured party at the time of the injury. Leep v. McComber, 118 Mich.App. 653, 657-658, 325 N.W.2d 531 (1982). A licensee is one who is on the premises of another because of some personal unshared benefit and is merely tolerated on the premises by the owner. Danaher v. Partridge [135 MICHAPP 496] Creek Country Club, 116 Mich.App. 305, 313, 323 N.W.2d 376 (1982); Socha v. Passino, 105 Mich.App. 445, 448, 306 N.W.2d 316 (1981). A property owner's duty to a licensee extends only (1) to liability for injuries caused by conditions the owner knows of and realizes involve an unreasonable risk of harm, (2) where the owner fails to exercise reasonable care to make the conditions safe or warn the licensee of the conditions or risks, and (3) where the licensee does not know or have reason to know of the risk. Preston v. Sleziak, 383 Mich. 442, 453, 175 N.W.2d 759 (1970); 2 Restatement Torts, 2d, Sec. 342, p. 210.

An invitee is one who is on the owner's premises for a purpose mutually beneficial to both parties. Danaher, supra, 116 Mich.App., p. 312, 323 N.W.2d 376. An owner or occupier of land owes an invitee the duty to exercise ordinary and prudent care to render the premises reasonably safe. Preston v. Sleziak, supra, 383 Mich. p. 447, 175 N.W.2d 759; Danaher, supra. Thus, a landowner's duty to an invitee is broader than that owed to a licensee.

In Leveque, supra, plaintiff was the defendants' sister-in-law. At defendants' request, she went to their home to pick up the defendants' children. While plaintiff was carrying defendants' infant child down the front stairs, plaintiff fell due to a defective porch step. The trial court granted defendants' motion for summary judgment after holding that plaintiff was a licensee as a matter of law. This Court reversed the summary judgment finding that plaintiff was an invitee as a matter of law. In doing so, this Court expanded the status of invitee to include a personal friend or family member, normally licensees, in instances where the predominant nature of the visit is not for social purposes, but rather for predominately beneficial purposes to the landowner. The Leveque [135 MICHAPP 497] Court did say that in most instances a finding of licensee/invitee status would be a question of fact. However, in that case, where the evidence showed that plaintiff's visit was not for a social purpose, the Court determined that plaintiff was an invitee as a matter of law.

In this case, the evidence did not show that Bertha Doran's sole purpose was to render services beneficial to defendant. She often visited socially with defendant on such occasions. Nevertheless, as the trial court found, Ms. Doran's presence on defendant's premises was mutually beneficial and primarily a service to defendant, a service defendant impliedly invited as it saved her a 24-mile round trip and a possible altercation with her ex-husband. Therefore, we find as a matter of law that Bertha Doran was an invitee. As this status affected the standard of care owed Ms. Doran, we find that the trial court caused reversible error by failing to find and instruct the jury that Ms. Doran was an invitee.

Reversed and remanded for a new trial.

SHUSTER, Judge (dissenting).

I respectfully dissent. In Leveque v. Leveque, 41 Mich.App. 127, 131, 199 N.W.2d 675 (1972), relied on by the trial court, this Court held that whether a person is an invitee or a licensee is normally a question of fact. Accordingly, the trial court correctly refused to charge that Bertha Doran (hereinafter "plaintiff") was an invitee as a matter of law unless reasonable...