Leep, by Frenak v. McComber

Citation118 Mich.App. 653,325 N.W.2d 531
Decision Date09 November 1982
Docket NumberNo. 56699,56699
PartiesRichard LEEP, By his mother and natural guardian, Janet FRENAK, Plaintiff-Appellant, v. Michael McCOMBER, Defendant-Appellee. 118 Mich.App. 653, 325 N.W.2d 531
CourtCourt of Appeal of Michigan (US)

[118 MICHAPP 655] Sommers, Schwartz, Silver & Schwartz, P.C. by Richard D. Toth, Southfield, for plaintiff-appellant.

Sullivan, Hamilton, Ryan & Schulz, Battle Creek, for defendant-appellee.

Before WALSH, P.J., and CYNAR and HOOD, * JJ.

CYNAR, Judge.

This litigation arises from a personal injury sustained by plaintiff while on the property of defendant. A jury trial commenced on February 10, 1981. On February 11, 1981, the plaintiff having rested his case, the trial judge granted defendant's motion for a directed verdict, based upon the plaintiff's failure to establish grounds for recovery. Plaintiff appeals as of right from this judgment. We affirm.

Plaintiff was born on April 16, 1968. On January 27, 1976, he suffered the injury which is the subject of this suit. Plaintiff and John McComber, defendant's son, were playmates who walked to and from school together about 99 percent of the time. Plaintiff often completed his walk home by transiting[118 MICHAPP 656] defendant's property--specifically by walking down the driveway along one side of defendant's house. On the day of the injury, plaintiff and John McComber had left school together but had become separated along the way and plaintiff continued walking alone. Plaintiff claims that he got to defendant's house, heard a noise, looked up, and was struck in the eye by an icicle. The resultant injury necessitated removal of plaintiff's eye, which was replaced by an artificial eye.

Plaintiff testified at trial that he was walking along the side of the house "without the porch" when the injury occurred. Plaintiff testified that he did not know the height of the icicles but if he jumped, he could not touch the icicles. Herold Reuss, the chief of police for the City of Marshall, who had responded to plaintiff's screams, seemed to recollect, although he was not positive, that he thought the child told him that he reached up and touched the icicle prior to its falling.

Michael McComber acknowledged that he was aware of plaintiff's habit of traversing his property when returning home from school. Defendant indicated the date, and stated that at the time the plaintiff was injured, he and his wife were away from their home pursuant to their employment. He assumed that his son and plaintiff walked down the driveway side of his house, although he admits that he did not specifically tell them not to go on the other side. He stated that during the winter the icicles accumulated around his home and all houses on the block. Defendant indicated that icicles accumulate on the porch side of the house but most icicles accumulated on the driveway side of his house. He testified that on certain occasions he would knock down the icicles, either because he figured that they were "too long" or to [118 MICHAPP 657] prevent the children from playing with them. He kept a wash broom with a handle 13 feet long which he used to knock down the icicles. Defendant claims that he had previously warned the children not to play around icicles and that he had repeated those warnings as often as three times a month. He testified that the reason he warned the children about icicles was that they might get bumped in the head, though he never anticipated a serious injury. He further testified that he had specifically warned plaintiff about the icicles.

After plaintiff had completed his proofs, defendant moved for a directed verdict, which was granted.

Plaintiff argues that the trial court erred in directing a verdict for the defendant because a private homeowner is liable for natural accumulation of snow or ice upon his own property if he knows or reasonably should know that the presence of such conditions creates a risk of harm to child licensees.

It is easy enough to walk into a maze, however the intricate network often causes confusion before one finally finds the pathway to the exit. So it is with the review of the law relating to the question before us. In Shaw v. Wiegartz, 1 Mich.App. 271, 273, 135 N.W.2d 565 (1965), Judge Fitzgerald remarked:

"Courts, in their efforts to refrain from imposing undue burdens on injured parties or landowners, have set up categories and categories-within-categories to designate the 'status' of the injured and the 'knowledge' of the landowner."

Since the duty owed by the landowner depends upon the status of the injured party at the time of the injury, it is necessary to ascertain the status of [118 MICHAPP 658] plaintiff in the instant case. Defendant acknowledges that the proofs viewed in the most favorable light toward the plaintiff place plaintiff in the status of a bare or mere licensee.

A licensee has been defined as a person who enters on or uses another's premises with the express or implied permission of the owner or person in control thereof. Cox v. Hayes, 34 Mich.App. 527, 192 N.W.2d 68 (1971). The Restatement definition is similar: 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. 72. The words "consent" or "permission" indicate that the possessor is in fact willing that the other shall enter or remain on the land, or that his conduct is such as to give the other reason to believe that he is willing that he shall enter, if he desires to do so. Id., Comment e. It is reasonable to accept that the plaintiff could be characterized as a licensee by implied permission. In defendant's view, Michigan jurisprudence recognizes certain classes of licensees, not all of which are entitled to the same degree of care by a landowner. One who is on premises by reason of the acquiescence or sufferance of the landowner, he argues, is considered a "mere" or "bare" licensee. Defendant has the opinion that a landowner's duty regarding such a mere licensee is considerably less than that duty owed other forms of licensees, notably the social guest. Examination of earlier Michigan cases raises a question for the basis of defendant's classification.

In Hargreaves v. Deacon, 25 Mich. 1, 5 (1872), the plaintiff's decedent, a small child, was killed by falling into a cistern on the premises of the defendants. It had been revealed that the plaintiff was on the property of the defendant landowner not by [118 MICHAPP 659] any special permission, but rather by tacit acquiescence.

Under Hargreaves, a landowner owed no duty to such licensees other than to refrain from wantonly or willfully injuring them. Id., 4. This view was reiterated in Formall v. Standard Oil, 127 Mich. 496, 502, 86 N.W. 946 (1901): "[t]acit permission is not enough to establish liability for negligent conditions on one's own premises." The plight of child licensees was once again considered in Peck v. Adomaitis, 256 Mich. 207, 239 N.W. 278 (1931). In that case the defendant left a bonfire unattended on her property even though she was aware that children often went upon the premises. The Court held that there was no legal duty on the part of the defendant to guard the child against the danger of coming into contact with the fire:

"Defendant was under no obligation to trespassers or licensees to keep her premises safe for use of children as a playground." Id., 210, 239 N.W. 278.

The Peck case was cited with approval in Morris v. Lewis Mfg. Co., 331 Mich. 252, 49 N.W.2d 164, 28 A.L.R.2d 214 (1951). In Morris, the defendants owned a lot on which was situated a partially completed house and sundry piles of building materials. The plaintiff's complaint charged that the defendants knew that the area was being used by neighborhood children as a playground, but took no steps to warn or otherwise to protect the children. The plaintiff's decedent was killed by falling lumber while playing on defendants' property. The Court affirmed defendants' motion to dismiss, holding that its opinion in Peck, supra, was controlling.

Another line of cases recognized a heightened duty on the part of a landowner when the latter [118 MICHAPP 660] was cognizant of the immediate presence of a licensee upon his property. The Michigan Supreme Court in Schmidt v. Michigan Coal & Mining Co., 159 Mich. 308, 311-312, 123 N.W. 1122 (1909), held:

"The weight of authority would appear to be that after the owner of premises is aware of the presence of a trespasser or licensee, or if in the exercise of ordinary care he should know of their presence, he is bound to use ordinary care to prevent injury to them arising from active negligence."

See also Polston v. S.S. Kresge Co., 324 Mich. 575, 37 N.W.2d 638 (1949). An additional duty arises when, as in the instant case, a licensee habitually uses the same route or path through the landowner's property. As stated in Morrison v. Carpenter, 179 Mich. 207, 217, 146 N.W. 106 (1914):

"If a licensee has been using a well-defined path openly and continuously, we think he takes only such risks as have existed during the time of using the same * * * [and] if the licensor interferes with said path by making it more dangerous, he should give notice to the licensee, or guard the dangerous place so made."

Defendant argues that this is the state of the law today--that a landowner owes no duty to a mere licensee other than to refrain from injuring him through willful or wanton conduct, active negligence when the licensee's presence is known, or by making the licensee's habitual path or route more dangerous. No duty exists, he contends, with regard to passive negligence, e.g., failure to warn of or remedy a hazardous condition on the premises. Defendant has not properly interpreted the more recent case law. In Preston v. Sleziak, 383 Mich. 442, 453, 175 N.W.2d 759 (1970), a case involving...

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