Kreiner v. Yezdbick, Docket No. 6866

• Decision Date: 25 March 1970
• Docket Number: No. 2,Docket No. 6866,2
• Parties: Earl KREINER, Individually and as Administrator of the Estate of Leslie Kreiner, Deceased, Plaintiff-Appellant, v. Joseph YEZDBICK and Louis Yezdbick, Individually and d/b/a Parkhurst Mobile Home Park and Parkhurst Trailer Court & Sales, Inc., a Michigan corporation, jointly and severally, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 629

177 N.W.2d 629

22 Mich.App. 581

Earl KREINER, Individually and as Administrator of the Estate of Leslie Kreiner, Deceased, Plaintiff-Appellant, v. Joseph YEZDBICK and Louis Yezdbick, Individually and d/b/a Parkhurst Mobile Home Park and Parkhurst Trailer Court & Sales, Inc., a Michigan corporation, jointly and severally Defendants-Appellees.

Docket No. 6866.

Court of Appeals of Michigan, Division No. 2.

March 25, 1970.

Leave to Appeal Denied May 20, 1970.

Released for Publication June 26, 1970.

Carl M. Riseman, Riseman, Lemke & Piotrowski, Detroit, for plaintiff-appellant.

Richard B. Kramer, Detroit, for defendants-appellees.

Before FITZGERALD, P.J., and BRONSON and T. M. BURNS, JJ.

T. M. BURNS, Judge.

The plaintiff brought this action under the Wrongful Death Act M.C.L.A. § 600.2922 (Stat.Ann.1969 Cum.Supp. § 27A.2922). The plaintiffs, father of the deceased 16 year old boy, as administrator seeks to recover for deprivation of mutual society, companionship and support of the deceased; and also in his own right for the ambulance, funeral, and burial expenses incurred by him as the result of his son's death. The total damages claimed by the plaintiff for all items is $10,000.

The plaintiff appeals the trial court's granting of defendants' motion for summary judgment under GCR 1963, 117.

When defendant makes such a motion, he concedes as true for the purposes of his motion all that the plaintiff may rightfully claim from the evidence. Murphy v. Roux (1958), 352 Mich. 97, 102, 89 N.W.2d 532. The facts as stated by the plaintiff in his memorandum in opposition to the motion for summary judgment which the trial court must assume to be true in its consideration of the motion, were:

'Leslie Kreiner had been a guest of his sister who rented a space at defendants' trailer park in 1966. The defendants possessed a large trailed park with a lake and swimming facilities enclosed. On June 30, 1966, Leslie Kreiner went to the lake for a swim; he swam out to a raft which was not anchored and was in the company of two other residents of the trailed park. The raft drifted out into deep water and the other two parties, the Sterns, jumped off the raft. The deceased had appeared a little frightened about swimming back. After the Sterns had departed from the raft, they heard a splash and upon looking around, they saw the Kreiner boy in the water. He was 16 years old at the time. After swimming for a ways he appeared to be in trouble and both Mr. and Mrs. Stern went back to assist him. Mr. Stern had almost reached the shore prior to the time that the drowning began.

'They both struggled to assist the boy for a considerable period of time (Mrs. Stern testified from 20--45 minutes), but eventually the boy drowned. The Sterns testified that no one from the shore rendered any assistance to the boy during this period and that there were neither lifeguards nor lifesaving equipment on the shore. Neither Mr. nor Mrs. Stern had any lifesaving training. After the struggle was over, another resident jumped in the lake from the shore and attempted to assist. Shortly thereafter the fire department brought out a motor launch but it was too late. Kreiner has brought suit against the defendants based on their failure to supply lifeguards, lifesaving equipment and for failure to anchor the raft.'

Given these facts, the trial court said in granting the defendants' motion for summary judgment:

'I have read the briefs and the pleadings and, of course, I have read the pertinent part of the depositions.

We have here a trailer park. And on this trailer park, there is a place where the occupants of the trailer park may go swimming.

The decedent was a teen-aged person who knew how to swim; that is evident. In fact, it is evident that he swam out to the raft in this pool, which in a sense is a natural pool. After being there for a while and in fact having clambered on the raft. And it is true, factually, that the raft was untethered. The group started to swim back and the decedent--one of those things that is so difficult to understand, whether by cramp or otherwise, no one will ever know--he couldn't make it back. There was even an attempt at assistance on the part of the ones swimming with him. He drowned.

And, as I said, this teen-aged person was a guest of a registered trailer park occupant.

Now, I know of no statute, I know of no law that gives rise to a duty on the part of the trailer park owner to supply lifeguards and to have tethered the raft or to have put up a high fence. In fact, the high fence idea would be almost ridiculous with this teen-aged person.

I fail to see any liability here as a matter of law. And I have looked for it conscientiously, having in mind that this is the Defendants' motion. I am also reluctant because human life was lost. But every incident in human life, no matter how sad or how distressing, does not give rise to a cause of action.

Therefore, once again, your motion is granted.'

The issue before this Court is whether the trial judge erred in not submitting the question of defendants' alleged negligence in not having lifeguards or lifesaving equipment such as flotation rings on hand, and in not having the raft secured so that it could not be untied, to a jury for determination.

The defendants assert that Glesner v. Jones (1962), 368 Mich. 510, 118 N.W.2d 378 is almost identical to the case at bar and 'flies in the face of the cases cited by plaintiff' and that '* * * the case of Glesner supra, clearly establishes that the cases cited by plaintiff are not the law in the State of Michigan * * *' The defendants further assert that they '* * * were not operating a bathing resort or swimming pool under any stretch of the imagination.'

Having examined the Glesner case with great care, we find that it does not support defendants' assertion, nor does it 'fly in the face' of Schweitzer v. Gilmore (CA2, 1958), 251 F.2d 171, or the other cases relied on by the plaintiff. In Glesner, an action was brought on the basis of a resort operator's alleged negligence in failure to post signs warning that the water around his dock was not deep enough for diving. The plaintiff in Glesner stated at trial however, that even if such signs had been posted, he would have made his dive as he knew how deep the water was and had decided that he was a sufficiently experienced diver to clear the bottom.

As to defendants' assertion that they are not operating a bathing resort or swimming pool by any 'stretch of the imagination', we find it impossible to believe the location they chose for their trailer park just happened to have a small lake completely enclosed upon it. We find that any attempt to distinguish the defendants' lake resort trailer park from a hotel or other similar public resort in this regard would verge on ridiculous. It seems quite obvious that the private lake on defendants' property was its primary attraction rather than some mere coincidental feature as defendants would have us believe.

The defendants are not and should not be considered to be insurers against all possible injury as the keepers of a place of public resort. They had a duty, however, to see to it that such place was reasonably safe. Gray v. Briggs (1932), 259 Mich. 440, 243 N.W. 254; Mikulski v. Morgan (1934), 268 Mich. 314, 256 N.W. 339; See Marietta v. Cliffs Ridge, Inc. (1969), 20 Mich.App. 449, 174 N.W.2d 164.

The obligation owed to the plaintiff's decedent was the same obligation owed to all the persons who were actual tenants, at least, as regards the use of the swimming facilities which defendants offered for their use.

The plaintiff's decedent as the social guest of a tenant in defendants' trailer park was an invitee to whom defendants owed the obligation of reasonable care. See also Blakeley v. White Star Line (1908), 154 Mich. 635, 118 N.W. 482; Torma v. Montgomery Ward & Company (1953), 336 Mich. 468, 58 N.W.2d 149; Kroll v. Katz (1965), 374 Mich. 364, 371, 132 N.W.2d 27; Chamberlain v. Haanpaa (1965), 1 Mich.App. 303, 136 N.W.2d 32; Genesee Merchants Bank & Trust Company v. Payne (1967), 6 Mich.App. 204, 148 N.W.2d 503.

Since the plaintiff's decedent was an...