Forche v. Gieseler, Docket No. 100170

• Decision Date: 15 March 1989
• Docket Number: Docket No. 100170
• Citation: 174 Mich.App. 588,436 N.W.2d 437
• Parties: Richard G. FORCHE, Plaintiff-Appellant, v. Lawrence D. GIESELER and Helen Gieseler, jointly and severally, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 437

436 N.W.2d 437

174 Mich.App. 588

Richard G. FORCHE, Plaintiff-Appellant, v. Lawrence D. GIESELER and Helen Gieseler, jointly and severally, Defendants-Appellees.

Docket No. 100170.

Court of Appeals of Michigan.

Submitted May 10, 1988.

Decided Feb. 6, 1989.

Released for Publication March 15, 1989.

St. Amant & Nolen by Michael J. Nolen, Lansing, for plaintiff-appellant.

Fordney, Cady & Prine, P.C. by Andrew W. Prine, Saginaw, for defendants-appellees.

Before SULLIVAN, P.J., and WAHLS and JACKSON, ^* JJ.

JACKSON, Judge.

Plaintiff appeals as of right from an order of the Jackson Circuit Court granting defendants' motion for summary disposition.

Plaintiff was eighteen years of age on September 5, 1983, and while visiting the defendants' cottage as a social guest on Pleasant Lake in Jackson County, Michigan, he dove head first from a dock extended into the lake from defendants' property. His head hit the lake bottom at a depth of three feet and the subsequent injury rendered him a quadriplegic. On April 28, 1986, plaintiff filed a three-count complaint alleging willful and wanton misconduct, gross negligence, and intentional nuisance.

In response to plaintiff's complaint, the defendants denied negligence and wrongdoing and moved to dismiss. The trial court dismissed the nuisance claim, and that disposition is not challenged on appeal. Defendants moved for summary disposition on the remaining counts. Following discovery proceedings, the trial court heard arguments on defendants' motion for summary disposition brought pursuant to MCR 2.116(C)(8). The court recognized the mislabeling of the rule but found that plaintiff was sufficiently apprised of the basis for the motion and therefore allowed defendants' motion to be treated as if properly labeled pursuant to MCR 2.116(C)(10).

The trial court determined that the threshold issue was whether the defendants owed a duty to this plaintiff who was a social guest and, thus, had the legal status of a licensee. Concluding from plaintiff's deposition testimony that plaintiff's familiarity and knowledge of the lake defeated any duty by defendants, the circuit court granted defendants' motion for summary disposition.

We reverse.

Plaintiff's deposition testimony indicates that he was generally familiar with the Pleasant Lake area at the time of the accident. During his early childhood, plaintiff's parents had owned a cottage on the lake. When his parents sold the cottage after several years, plaintiff had continued to frequent the lake during summer weekend visits to his grandparents, who lived nearby. Plaintiff also had an uncle who owned a cottage on the lake, and he had swum at his uncle's dock on several occasions before the accident. Because of his general familiarity with the lake, plaintiff knew that the water depths vary at different points along the shore and that not all of the docks were suitable for diving.

It is undisputed that plaintiff was a nonpaying social guest at the time of the accident. At the time he made the dive, several persons were already in the water near the end of the dock, and plaintiff had not seen any of them stand up, or give any other indication that the water was shallow. Plaintiff testified that the wind created a rippling effect on the water which obscured its true depth. However plaintiff did not inquire as to the water's depth before he made the dive, and he had not seen anyone else enter the water.

Plaintiff announced his intention to dive through an inner tube positioned in the water while standing near the midpoint of the dock. Plaintiff then ran headlong off the end, his hands outstretched before him in a diving posture. Plaintiff was injured when his hands were caught by the tube, and his head passed through to the bottom.

When the circuit court issued its opinion and order of summary disposition, plaintiff's burden of pleading and proof was apparently governed by the recreational land use act (RUA), M.C.L. Sec. 300.201; M.S.A. Sec. 13.1485. See Yahrling v. Belle Lake Ass'n, Inc, 145 Mich.App. 620, 628-629, 378 N.W.2d 772 (1985), rev'd 429 Mich. 66, 80, 412 N.W.2d 213 (1987). The RUA states:

"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."

Plaintiff accordingly alleged willful and wanton misconduct and gross negligence based on defendants' failure to post depth markers, warning signs, or to give actual warning of a hazard.

It is undisputed that plaintiff was a nonpaying social guest, and the circuit court also assumed that plaintiff's cause of action was subject to the RUA. However, in ruling on the motion the court purported to apply the common-law standard of care applicable to a possessor of land in relation to a licensee. See Preston v. Sleziak, 383 Mich. 442, 175 N.W.2d 759 (1970). The court then ruled that the defendants' duty of care to plaintiff was vitiated by the irresponsible nature of plaintiff's own conduct in connection with the accident; in its written opinion, the court stated:

"If in fact the Plaintiff did not know or have reason to know of the condition and the risk involved when he dove from the defendants' dock, then some duty might have existed herein. But based on the Plaintiff's own testimony with regard to what he was attempting to do at the time of his injury, it is clear that the Defendants owed no duty to this particular Plaintiff.

"Plaintiff testified that he had spent time during the summer months at Pleasant Lake since he had been nine years old. He acknowledged that he was aware that the depth of the water at a point 50 feet from shore, would vary in places along the shoreline (he in fact described the manner in which the lake bottom at the end of one particular dock had been made more suitable for diving). On the day in question, the Plaintiff did not inquire as to the depth at the end of the dock and saw no other person diving; he admits that he could not see down into the water due to wind and boating activity--he merely assumed that the water was deep enough for the type of dive he was attempting.

"There is not evidence that the Plaintiff was injured by an unexpected hazard such as a large rock or an artificial improvement and none has been alleged.

"Whether the landowner's conduct, then, is characterized as gross negligence or wilful and wanton misconduct becomes unimportant. Based on the undisputed facts of this case, no duty was owed to this particular Plaintiff who had testified that he knew that some docks on Pleasant Lake were too shallow to permit diving."

Based on this analysis, the court granted defendants' motion under MCR 2.116(C)(10). We disagree.

After plaintiff filed his claim of appeal, our Supreme Court held the RUA inapplicable to premises liability claims brought by social guests for recovery of personal injuries which occur in urban and suburban areas. Wymer v. Holmes, 429 Mich. 66, 412 N.W.2d 213 (1987). Wymer upsets a number of prior rulings by this Court, and drastically eases plaintiff's burden of pleading and proof in the instant case. Cf. Hill v. Guy, 161 Mich.App. 519, 411 N.W.2d 757 (1987), and the cases cited therein; see also Wright v. Dudley, 158 Mich.App. 154, 404 N.W.2d 217 (1986) (held no cause of action for gross negligence principles which traditionally obtain between the landowner and a licensee at common law). In assessing the factual sufficiency of plaintiff's claim under MCR 2.116(C)(10), this Court is obliged to accord plaintiff the benefit of any reasonable view of the deposition testimony which supports his claim. Struble v. Lacks Industries, Inc., 157 Mich.App. 169, 172-173, 403 N.W.2d 71 (1986).

The circuit court's ruling confuses several principles of procedural and substantive law. Procedurally, the court's reliance on MCR 2.116(C)(10) is inappropriate, given its holding that defendants owed plaintiff no duty of care. If defendants owed plaintiff no duty of care, then plaintiff must have failed to state a claim upon which relief might be granted, and the appropriate basis for judgment was MCR 2.116(C)(8). See e.g. Simonds v. Tibbitts, 165 Mich.App. 480, 419 N.W.2d 5 (1987). As a matter of substantive law, the court's assumption that plaintiff had the burden of pleading gross negligence or wilful and wanton misconduct under the RUA is difficult to square with its use of ordinary negligence principles from Preston v. Sleziak. Moreover, the court's working assumptions that Preston defines the standard of care between a landowner and a licensee and that plaintiff was a licensee conflict with its holding that defendants owed no duty of care to plaintiff. Given these premises, plaintiff's status of a licensee must have given rise to the duty of care applicable to licensees as set forth in Preston.

The court's ruling that plaintiff's contributory negligence vitiated a defendant's duty of care is erroneous. A plaintiff's contributory negligence has never vitiated a defendant's duty of care. Even under prior common law, contributory negligence only barred a plaintiff's right of recovery, notwithstanding the defendants' negligence. See e.g. Vanderah v. Olah, 387 Mich. 643, 660, 199 N.W.2d 449 (1972) (Williams, J., concurring). Under present law, a plaintiff's contributory negligence decreases the right of recovery on a comparative percentage basis, but does not bar the claim altogether. Placek v. City of Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979), reh. den. 406 Mich. 1119 (1979). In any event, a plaintiff's contributory negligence had never operated to vitiate a...