Kosmalski v. St. John's Lutheran Church, Docket No. 240663.

CourtCourt of Appeal of Michigan (US)
Citation261 Mich. App. 56,680 N.W.2d 50
Docket NumberDocket No. 240663.
PartiesJoseph KOSMALSKI and Kathy Kosmalski, on behalf of Marilyn Kosmalski, a Minor, Plaintiffs-Appellants, v. ST. JOHN'S LUTHERAN CHURCH, Defendant-Appellee.
Decision Date26 May 2004

McAlpine & Associates, P.C. (by Mark L. McAlpine and Mary A. Kosmalski), Auburn Hills, for the plaintiffs.

Bigler, Berry, Johnston, Sztykiel & Hunt, P.C. (by Witold Sztykiel and Mary Jo Boerman), Zeeland, for the defendant.



In this premises liability action, plaintiffs Joseph and Kathy Kosmalski, on behalf of their daughter Marilyn Kosmalski, a minor, appeal as of right the trial court's order granting defendant St. John's Lutheran Church's motion for summary disposition and dismissing the case. We affirm in part, reverse in part, and remand.

Annually, St. John's holds a vacation bible school at its church facility and volunteers are used to help conduct the vacation bible school. Marilyn Kosmalski, who is the granddaughter of a church member, but is not herself a member of St. John's, accepted her grandmother's invitation to be a volunteer during the vacation bible school and was assigned the job of a playground helper. While supervising the playground during the week of the vacation bible school, Marilyn had an encounter with one of the children that resulted in the child's running away toward the church building. Marilyn followed after the child and as the child pulled open a glass door, Marilyn's extended arm came into contact with it. As a result, the glass shattered, cutting Marilyn's forearm from her wrist to her elbow and causing nerve damage.

Plaintiffs filed the instant premises liability action against St. John's, alleging that Marilyn was an invitee on St. John's premises at the time she was injured and that St. John's was negligent and breached its duty to maintain the premises in a reasonably safe condition by failing to replace the glass in the door with safety glass or otherwise warning or taking other precautions to protect Marilyn from unreasonably dangerous conditions. Ultimately, St. John's responded by filing a motion for summary disposition. In its motion, St. John's maintained that Marilyn was a licensee, rather than an invitee, and that it did not breach its duty to her as a licensee because the glass door was not an unreasonably dangerous condition and, in any event, St. John's was unaware of the condition of the door. Further, St. John's argued that the negligence elements of proximate cause and duty are absent.

The trial court determined that Marilyn was a licensee because St. John's vacation bible school was primarily conducted for the purpose of evangelism and not for a commercial purpose. Further, the trial court concluded that the mere fact that the glass door of St. John's building broke and caused injury did not, by and of itself, show that it was an unreasonably dangerous condition. The trial court also stated that the door was not an unreasonably dangerous condition simply because the most recent safety code requires that glass doors contain safety glass. Finally, the trial court declined to address St. John's argument regarding proximate cause because it was moot. This appeal ensued.

We review a trial court's ruling on a motion for summary disposition de novo. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). Although the trial court did not identify the particular subrule under which it granted summary disposition, it is apparent that the motion was decided under MCR 2.116(C)(10), because the trial court's consideration went beyond the parties' pleadings. A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Veenstra v. Washtenaw Country Club, 466 Mich. 155, 163, 645 N.W.2d 643 (2002).

In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10), (G)(4). Quinto v. Cross & Peters Co., 451 Mich. 358, 547 N.W.2d 314 (1996). [Maiden v. Rozwood, 461 Mich. 109, 120, 597 N.W.2d 817 (1999).]

On appeal, plaintiffs first argue that the trial court erred in holding that Marilyn's status at the time she was injured was that of a licensee rather than an invitee. Specifically, plaintiffs contend that the trial court improperly focused on the evangelizing purposes of the vacation bible school rather than the child-care service that Marilyn was invited onto the church property to provide. Plaintiffs maintain that, when analyzed from this perspective under the controlling authority of Stitt v. Holland Abundant Life Fellowship, 462 Mich. 591, 614 N.W.2d 88 (2000), Marilyn was performing a commercial purpose and must be accorded invitee status, or at a minimum her status must be left to a jury to determine. We disagree. To establish a prima facie case of negligence, a plaintiff must prove: (1) the defendant owed a duty to the plaintiff, (2) the defendant breached that duty, (3) the defendant's breach caused the plaintiff's injuries, and (4) the plaintiff suffered damages. Case v. Consumers Power Co., 463 Mich. 1, 6, 615 N.W.2d 17 (2000). With regard to the first element, the duty owed to a visitor by a landowner depends on whether the visitor is classified as a trespasser, licensee, or invitee. Stitt, supra at 596, 614 N.W.2d 88.

In Stitt, supra, our Supreme Court addressed the legal framework for determining whether a person who enters upon the land or premises of another is a licensee or an invitee. The Court's discussion of this issue arose in the context of whether the category of public invitee found in § 332 of 2 Restatement Torts, 2d, should be adopted in Michigan. Id. at 602-603, 614 N.W.2d 88. Ultimately, the Court rejected the definition of public invitee in § 332, but in doing so the Court specifically held that "persons on church premises for other than commercial purposes are licensees and not invitees." Id. at 607, 614 N.W.2d 88. Thus, the question before us in the present case is whether the evidence presented to the trial court, considered in a light most favorable to the plaintiffs, presents a genuine issue of material fact regarding whether Marilyn was on St. John's premises for a commercial purpose.

This Court's resolution of that issue is further informed by the discussion in Stitt concerning what constitutes a commercial purpose. In Stitt, the Court stated:

[W]e conclude that the imposition of additional expense and effort by the landowner, requiring the landowner to inspect the premises and make them safe for visitors, must be directly tied to the owner's commercial business interests. It is the owner's desire to foster a commercial advantage by inviting persons to visit the premises that justifies imposition of a higher duty. In short, we conclude that the prospect of pecuniary gain is a sort of quid pro quo for the higher duty of care owed to invitees. Thus, we hold that the owner's reason for inviting persons onto the premises is the primary consideration when determining the visitor's status: In order to establish invitee status, a plaintiff must show that the premises were held open for a commercial purpose. [Id. at 604, 614 N.W.2d 88 (emphasis in original).]

In light of this language, we agree with plaintiffs' contention that in determining that Marilyn was a licensee the court below improperly relied on evangelism, rather than finances, as being the primary purpose for St. John's vacation bible school. Pursuant to Stitt, the focus of the analysis for determining a visitor's status is "the owner's reason for inviting persons onto the premises...." Id. Although presumably St. John's invited the children to attend the vacation bible school for purposes of evangelism, Marilyn's reason for being there was to volunteer as a playground supervisor, or in other words, to facilitate the vacation bible school by providing child care. Thus, in the context of the facts of this case, the question ultimately is whether a volunteer child-care provider at a church's vacation bible school is on the premises for a commercial purpose.

Again, we find the Court's opinion in Stitt instructive on the proper framework with which to answer this question, even though the factual predicate in Stitt is different from the one presented here. In Stitt, a woman accompanied her friend to her friend's church to attend bible study and sustained injury when she tripped and fell in the parking lot. In determining whether the woman was an invitee or a licensee, the Court adopted the following quotation from the Florida Supreme Court's opinion in McNulty v. Hurley, 97 So.2d 185, 188 (Fla., 1957):1

"[A]n invitation to enter and worship, whether it be either express or implied, does not constitute one who accepts the invitation an invitee in the legal sense. In order for such relationship to arise the person entering onto the premises, i.e. the invitee, must have done so for purposes which would have benefited the owner or occupant of the premises, i.e. the invitor, or have been of mutual benefit to the invitee and the invitor. And as we view it this benefit must be of a material or commercial rather than of a spiritual, religious, or social nature." [Stitt, supra at 605, 614 N.W.2d 88.]

In the present case, Marilyn, at the time she was injured, was a teenage girl who was visiting her grandmother during her summer vacation. The grandmother, who was a member at St. John's, invited Marilyn, who was a member of a...

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