Estate of Matthews by Matthews v. City of Detroit, Docket No. 77738

Decision Date22 May 1985
Docket NumberDocket No. 77738
Citation367 N.W.2d 440,141 Mich.App. 712
PartiesESTATE OF Malik MATTHEWS, Deceased, by Sandra MATTHEWS, Administratrix and Personal Representative, Plaintiff-Appellant, v. CITY OF DETROIT, a municipal corporation, Defendant-Appellee. 141 Mich.App. 712, 367 N.W.2d 440
CourtCourt of Appeal of Michigan — District of US

[141 MICHAPP 713] Rader, Eisenberg & Feldman, P.C. by Jeffrey H. Feldman, Detroit, and Gromek, Bendure & Thomas by Daniel J. Wright, Detroit, of counsel, for plaintiff-appellant.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. by Lamont E. Buffington and Rosalind H. Rochkind, Detroit, for defendant-appellee.

Before CYNAR, P.J., and BEASLEY and ROBINSON, * JJ.


On July 2, 1981, Malik Matthews, age 6, drowned in the water surrounding the Scott Fountain on the island of Belle Isle. His estate sued the City of Detroit for his wrongful death, alleging negligence, intentional nuisance, gross negligence, wilful and wanton misconduct, and attractive nuisance.

This appeal brings into question the propriety of the trial court's entry, pursuant to GCR 117.2(1), of a summary judgment as to all counts.

The negligence count was attacked by defendant under the recreational use act:

[141 MICHAPP 714] "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." M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485.

Plaintiff first seeks to avoid the restrictions of the statute by portraying decedent as an invitee, as contrasted to a licensee or trespasser.

So far as we can determine, none of the Michigan appellate cases decided under the recreational use act have been confronted with this approach, nor have any of them, in specific terms, found an invitee among the plaintiffs therein. This is not to say, however, that these decisions have ignored the possible status of a plaintiff as an invitee.

The Restatement of The Law defines a licensee as follows:

"Sec. 330. Licensee Defined

"A licensee is a person who is privileged to enter or remain on land only by virtue of the possessor's consent." 2 Restatement Torts, 2d, Sec. 330, p 172.

It also defines an invitee as follows:

"Sec. 332. Invitee Defined

"(1) An invitee is either a public invitee or a business visitor.

"(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public." 2 Restatement Torts, 2d, Sec. 332, p 176.

The Comments to Sec. 332 further clarify the difference between the two classes:

[141 MICHAPP 715] "Comment:

"a. Invitee. 'Invitee' is a word of art, with a special meaning in the law. This meaning is more limited than that of 'invitation' in the popular sense, and not all of those who are invited to enter upon land are invitees. A social guest may be cordially invited, and strongly urged to come, but he is not an invitee. * * * Invitees are limited to those persons who enter or remain on land upon an invitation which carries with it an implied representation, assurance, or understanding that reasonable care has been used to prepare the premises, and make them safe for their reception. Such persons fall generally into two classes: (1) those who enter as members of the public for a purpose for which the land is held open to the public; and (2) those who enter for a purpose connected with the business of the possessor. The second class are sometimes called business visitors; and a business visitor is merely one kind of invitee. There are many visitors, such as customers in shops, who may be placed in either class.

"b. Invitation and permission. Although invitation does not in itself establish the status of an invitee, it is essential to it. An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so." Restatement, supra.

Our research has failed to disclose a Michigan case adopting the notion of a public invitee.

The recreational use act has been held to be applicable to publicly owned lands. Burnett v. City of Adrian, 414 Mich. 448, 326 N.W.2d 810 (1982); Graham v. Gratiot County, 126 Mich.App. 385, 337 N.W.2d 73 (1983); Lucchesi v. Kent County Road Comm, 109 Mich.App. 254, 312 N.W.2d 86 (1981); Syrowik v. Detroit, 119 Mich.App. 343, 326 N.W.2d 507 (1982); McNeal v. DNR, 140 Mich.App. 625, 364 N.W.2d 768 (1985).

Our Courts have held that the recreational use [141 MICHAPP 716] act barred claims based on negligence in the following cases which involved either trespassers or licensees: Heider v. Michigan Sugar Co., 375 Mich. 490, 134 N.W.2d 637 (1965); Taylor v. Mathews, 40 Mich.App. 74, 198 N.W.2d 843 (1972); Thomas v. Consumers Power Co., 58 Mich.App. 486, 228 N.W.2d 786 (1975); affirmed on negligence count 394 Mich. 459, 231 N.W.2d 653 (1975); Anderson v. Brown Bros. Inc., 65 Mich.App. 409, 237 N.W.2d 528 (1975); Thone v. Nicholson, 84 Mich.App. 538, 269 N.W.2d 665 (1978); Randall v. Harrold, 121 Mich.App. 212; 328 N.W.2d 622 (1982); Burnett v. City of Adrian, unpublished per curiam opinion, docket no. 78-1692, affirmed on negligence count in Burnett v. City of Adrian, 414 Mich. 448, 326 N.W.2d 810 (1982). In some of the cases, the Courts have not defined the status of the user of the lands, and in others, where the Courts have found the user to be a licensee, there has been general agreement that the act merely codifies the common law as to licensees.

However, a more common thread running throughout the decisions is the gratuitous nature of the use, the Courts constantly reiterating, often without regard to the status of the user, that where there is no valuable consideration for the use there is no liability. This view is affirmed in the statute itself which makes no attempt to distinguish between licensees and invitees as such.

This Court, in Danaher v. Partridge Creek Country Club, 116 Mich.App. 305, 323 N.W.2d 376 (1982), found the act not applicable to recreational land where the public was invited for a fee to use the premises. Again the Court emphasized the valuable consideration aspect of the act.

In like vein, this Court held in Syrowik v. Detroit, supra, that the act applied to the plaintiff therein, who would fit the Restatement Torts, 2d, Sec. 322(2), supra, definition of a public invitee. The Court, without attempting to define the status of the user, based its decision on the gratuitous nature of the use.

There is thus an indication that our courts have been willing to go beyond their implied thought that the act applies to licensees. That they are correct in doing so is affirmed by the late Justice Moody writing in Burnett v. City of Adrian, supra, 414 Mich. p. 481, 326 N.W.2d 810:

"The specific and unmistakable statutory language overrides the courts' broad statements regarding the effect of the act upon the common law. Further, when the Legislature states '[n]o cause of action * * * unless', a court cannot engraft onto the proviso a cause of action not specified therein."

We hold that the recreational use act applies to a public invitee who uses a public recreation area without paying a valuable consideration for such use.

Turning to the other issues raised by plaintiff on appeal, by its express language, the recreational use statute does not protect landowners from liability for gross...

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