Gilbert v. Sabin

• Decision Date: 07 June 1977
• Docket Number: Docket Nos. 27940,27941
• Citation: 256 N.W.2d 54,76 Mich.App. 137
• Parties: A. Bruce GILBERT and Karen Gilbert, next friend of Darwin Clay Gilbert, Plaintiffs-Appellees, v. Nelson SABIN and Hildred Sabin, Defendants-Appellants. 76 Mich.App. 137, 256 N.W.2d 54
• Court: Court of Appeal of Michigan — District of US

Page 54

256 N.W.2d 54

A. Bruce GILBERT and Karen Gilbert, next friend of Darwin Clay Gilbert, Plaintiffs-Appellees, v. Nelson SABIN and Hildred Sabin, Defendants-Appellants.

Docket Nos. 27940, 27941.

76 Mich.App. 137, 256 N.W.2d 54

Court of Appeals of Michigan.

June 7, 1977.

Released for Publication July 25, 1977.

[76 MICHAPP 138] Fortino, Plazton & Moskal by John J. Moskal, Alma, for defendants-appellants.

Henry G. Kubin, Ithaca, for plaintiffs-appellees.

Before DANHOF, C. J., and BASHARA and MAHER, JJ.

DANHOF, Chief Judge.

Plaintiff A. Bruce Gilbert brought suit to recover for medical expenses he incurred for the treatment of injuries sustained by his son Darwin Gilbert in a shooting incident. Plaintiff Karen Gilbert, as next friend of her son Darwin Gilbert, brought an action to recover damages for the same injuries. The two actions were heard together in a bench trial, and the trial judge found for plaintiffs, awarding $7,334.65 for medical expenses incurred and $120,000 in damages. Defendants appeal by right.

The shooting occurred on July 16, 1971. About two weeks previously a friend left a .22-caliber automatic rifle for Mr. Sabin to use while his own rifle was being adjusted. Mr. Sabin removed the clip and stored the rifle against the wall in his garage behind a number of barrels. Mr. Sabin did not engage the safety or check to see whether there was a round in the chamber. The rifle was visible only to a person standing at a point several feet inside the garage.

On the day of the shooting Mrs. Gilbert, and her three children, Rodney, Darwin and Linda, ages 4, 2, and 12, respectively, arrived to collect some raspberries which Mrs. Gilbert had ordered. Both Mrs. Sabin and Mrs. Gilbert testified that the Gilbert children had accompanied Mrs. Gilbert to the Sabin home on previous occasions. It was undisputed that customers did not normally enter the garage when purchasing raspberries. Instead, Mr. Sabin would place the berries on a table in the yard, as he had done on the day of the shooting before leaving home to run some errands.

Mrs. Gilbert and her children went into the Sabin home, where Mrs. Gilbert, Mrs. Sabin, and a Mrs. White engaged in social conversation. While the women were conversing, Rodney volunteered [76 MICHAPP 140] to take Darwin's empty baby bottle to the car. Accompanied by Darwin, Rodney left the house to do so. Within a short time, the women heard a "popping" noise and Linda Gilbert went out to check on the boys. Mrs. Gilbert testified that Mrs. Sabin called after Linda not to let the boys go into the garage, but Mrs. Sabin denied this. Mrs. Sabin testified that a few moments later she realized that the noise had been the sound of a gun discharging, and the women followed Linda outside, where they found Darwin, unconscious in Linda's arms, just outside the door to the garage that was roughly opposite the back door to the Sabin home. Linda had discovered Darwin on the floor inside the garage and carried him outside when the women emerged from the house. Later, at the hospital, it was determined that Rodney had shot Darwin with the rifle, apparently while playing with it. Darwin was permanently paralyzed from the waist down when the bullet severed or damaged his spinal cord.

In finding for plaintiffs the trial judge relied upon LeDuc v. Detroit Edison Co., 254 Mich. 86, 235 N.W. 832 (1931); Butrick v. Snyder, 236 Mich. 300, 210 N.W. 311 (1926); Anderson v. Newport Mining Co., 202 Mich. 204, 168 N.W. 523 (1918), and the leading case of Powers v. Harlow, 53 Mich. 507, 19 N.W. 257 (1884). The trial judge recognized that "a conservative view has prevailed as to the status of trespassers and the duty a landowner owes them", citing Petrak v. Cooke Contracting Co., 329 Mich. 564, 46 N.W.2d 574 (1951), but thought that "when children of tender years are injured by reason of an inherently dangerous instrumentality the court does not adopt the conservative approach to an owner's duty to trespassers". The trial judge thought that, "at worst" the boys "would be considered as technical trespassers" when they wandered[76 MICHAPP 141] into the Sabins' detached garage, but his opinion is ambiguous as to the boys' status.

It is apparent from an examination of the cases on which he relied that the trial judge premised liability upon application of the high duty of care owed to children by possessors of land under the doctrine of attractive nuisance, so-called, which was first recognized in this state in Powers v. Harlow, supra. In finding for plaintiffs, the trial judge said:

"It would appear to this Court that the garage in this case, like the shed in Powers, was a place where a young child would naturally enter out of curiosity and a firearm, within sight and reach would be an object to which the child would be attracted. There can be no question but what a loaded firearm is an inherently dangerous instrumentality."

On appeal, defendants contend that the trial judge erred as a matter of law in applying the doctrine of attractive nuisance to the facts of the instant case because there was no evidence that defendants knew, from prior trespasses, that children were likely to trespass in the garage, and because there was nothing about the garage itself that rendered it any more inviting to children than any other garage.

The Restatement of Torts (2d) provides the classic statement of the doctrine of attractive nuisance:

"A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

"(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and [76 MICHAPP 142] "(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

"(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

"(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

"(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children." 2 Restatement Torts, 2d, § 339, p. 197. ¹

Defendants appear to concede that all elements of the rule are satisfied in this case except subsection (a), which requires that "the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass". (Emphasis added.)

Before proceeding to consider this contention, we must first examine two initial considerations not raised by either party in the briefs. First, in Williams v. Primary School District # 3, 3 Mich.App. 468, 474, 142 N.W.2d 894, 896 (1966), this Court stated:

"Plaintiffs' claim based on an attractive nuisance is inapplicable to the facts of this case because trespass is the basic requirement of an attractive nuisance, and it is absent here, Royston v. City of Charlotte (1936), 278 Mich. 255, 270 N.W. 288."

[76 MICHAPP 143] This brief statement is only dictum, since the Court expressly stated that it was "not necessary to decision here". Williams, 3 Mich.App. at 473, 142 N.W.2d 894. Similar dictum, unsupported by any authority, appears in Pichette v. Manistique Public Schools, 50 Mich.App. 770, 773, 213 N.W.2d 784 (1973), a case involving the doctrine of governmental immunity. Thus the only authority supporting the rule that trespass is a basic requirement of an attractive nuisance is Royston v. City of Charlotte, 278 Mich. 255, 270 N.W. 288 (1936), decided during an era when the Michigan Supreme Court hewed to a decidedly conservative approach to claims founded on attractive nuisance. The Court in Royston did not hold that trespass was a basic requirement of an attractive nuisance, however; it merely held that no matter on what theory plaintiff's claim was grounded, it was barred by the doctrine of governmental immunity. ² Thus Williams' repetition of that dictum hardly constitutes binding precedent, and we decline to follow it, particularly since the great weight of authority is to the contrary. ³ We hold that if a child trespasser is within the protection[76 MICHAPP 144] of the rule, certainly a child licensee or invitee is similarly protected.

Secondly, we disagree with the trial judge's characterization of Darwin and Rodney's status as technical trespassers. The weight of authority holds that a child accompanying a business visitor on premises where business is conducted shares the business visitor's status as an invitee, and when the child strays from that portion of the business premises to which he is impliedly invited he becomes a mere licensee rather than a trespasser. See Anno.: Child Accompanying Business Visitor to Store, Shop, or the Like as Invitee or Licensee, 44 A.L.R.2d 1319, 1329-1336, 1337-1339. Since defendants admitted in their pleadings that the garage door was open, ⁴ Rodney and Darwin were at least licensees when they strayed into an area not customarily open to business visitors on the Sabin property.

This brings us to the principal questions raised by this appeal. Defendants contend that because there was no proof that children had entered the garage in the past the doctrine of attractive nuisance is inapplicable to this case, because plaintiffs have failed to show that defendants knew or had reason to know from past experience that children [76 MICHAPP 145] were likely to trespass in the garage. Facially, this claim has some merit. It is true that in many cases involving the doctrine of attractive nuisance the courts have focused on the question of whether the defendant possessor of land had knowledge that children had trespassed previously. In the absence of...