Lyshak v. City of Detroit

Decision Date01 April 1957
Docket NumberNos. 27,28,s. 27
Citation88 N.W.2d 596,351 Mich. 230
PartiesWilliam Peter LYSHAK, an Infant, by Peter Paul Lyshak, his Guardian, Plaintiff-Appellant, v. CITY OF DETROIT, a Municipal Corporation, and Richard Clyde Hayman, John Dalrymple, Stanley Jawar and Louis E. Powers, jointly and severally, Defendants-Appellees. Peter Paul LYSHAK, Plaintiff-Appellant, v. CITY OF DETROIT, a Municipal Corporation, and Richard Clyde Hayman, John Dalrymple, Stanley Jawar and Louis E. Powers, jointly and severally, Defendants-Appellees. ,
CourtMichigan Supreme Court

Walter Lyshak, Detroit, Jacob A. Tolonen, Detroit, of counsel, for appellants.

Paul T. Dwyer, Corporation Counsel, Leo E. LaJoie, Alfred Sawaya, Assts. Corporation Counsel, Detroit, for City of Detroit.

Before the Entire Bench.

SMITH, Justice.

Here we consider the case of a small boy whose eye was put out when he was struck by a golf ball as he played, with other boys, on the Redford golf course. He was 7 years old at the time, in the second-grade at school. He, by his father, is the plaintiff in one case, and his father is plaintiff in the other. (The cases were consolidated for trial.) We will, for purposes of simplicity, use the term plaintiff in the singular in most places in the opinion. The City of Detroit was one of the defendants and is the sole appellee.

The plaintiffs, joining as defendants three of the 'foursome' playing the thirteenth hole (one of whom had driven the ball which blinded the infant plaintiff), the City of Detroit, and one Louis E. Powers, claimed a joint and several liability arising out of an alleged agency relationship and concurrent negligence. The status of Powers should be explained. He, by assignment, and the city, had entered into a contract for the operation of what the agreement terms a 'concession.' Powers was to provide golf instruction and sell golf merchandise and accessories at the Detroit golf courses. The city was to get a percentage of the gross receipts. Defendant Dalrymple was Power's assistant for this purpose at the Redford course, defendant Jawar his assistant at the Rouge course, and others performed similar services elsewhere. Both Dalrymple and Jawar were members of the 'foursome' above described and were joined as defendants.

At the close of plaintiff's proofs the trial court granted defendants' motion for directed verdicts as to two of the players, defendants Jawar, Dalrymple, and as to defendant Powers, from which decision no appeal was taken. After all proofs were in the jury returned a verdict of no cause for action in favor of defendant Hayman (the other player of the foursome), and awarded damages to the infant plaintiff in the sum of $50,000 and to his father in the sum of $3,000, both against the City of Detroit. The trial court thereafter granted defendant city's motion for judgment non obstante veredicto as against both plaintiffs, from which judgment entered plaintiffs have taken a general appeal.

The main thrust of plaintiff's argument on appeal is devoted to the proposition that defendant city knew that children 'were constantly coming onto the golf course during the summer months, just as they had been doing for over a long period of time * * *.' From this knowledge, says plaintiff, there arose 'a duty on the part of defendant City of Detroit to keep a lookout for such children who might be on the golf course and, in the exercise of ordinary care, to discover their presence and the presence of infant plaintiff in a dangerous situation as presented itself on the day infant plaintiff was injured and exposed to the danger and peril of being struck by a flying golf ball.' Plaintiff's conclusion is that the city breached this duty of care owed plaintiff and hence must respond in damages for injuries proximately caused thereby. The city counters with the primary assertion that 'there most certainly can be no negligence where there is no duty,' and that defendant city was under no obligation to trespassers or licensee to keep its premises safe for the use of children as a playground.

It is very disturbing to the peace of mind of appellate judges to read many cases. Indeed, it is often disturbing to read what the appellee has to say about a case that seemed so clear, so lacking in complexities, from the appellant's statement. And so it is here. This case, we are told, concerns merely a trespassing child. And, as all know, a trespasser has no rights. A licensee has a few, and an invitee more, but as to a mere trespasser there is no duty of care. There being no duty there can be no negligence, and there being no negligence there can be no recovery by a trespassing child, though grievously hurt.

And yet, if a defendant baits traps with stinking meat and thus lures a trespassing dog to destruction, the defendant has been held liable (Townsend v. Wathen, 9 East 277, 103 Eng.Rep. 578). There seems to be here a valid (and perplexing) analogy. The theory is that one is liable if he lures something to its destruction. In the case before us, a great city maintained, in a densely populated residential section, a park-like area, a golf course, with ample lawn, trees, and 'a little creek.' Upon this area, in the summer, children entered daily. They were drawn to it for purposes of play as naturally as the dog to the bait. The City of Detroit knew this, knowing it the only way a 'city' can know anything, through the knowledge of its employees, servants, and agents. The professional at Redford knew it. The supervising greens keeper, who had charge of all men working on the golf course, and the repair and control of the fence, knew it. The official in charge of the Redford course knew it. However, knowing of the daily entrance of children onto the course, for purposes of childish play, the city, it is asserted, nevertheless continued to conduct thereon an enterprise of such character as to subject these children to risk of grave bodily injury, resulting in infant plaintiff's loss of one eye.

We will assume that the infant plaintiff, like the dog, was a trespasser. The dog's owner, nevertheless, recovered for his loss. The boy, according to the trial court, is to get nothing. What kind of law is this? Is there a real difference in the cases? In the trespassing dog case Lord Ellenborough, C. J., said that the defendant (who had baited the trap) must be considered as having contemplated the probable consequences of his act, that he had influenced 'the instinct of those animals' and had, in effect, drawn them 'irresistibly to their destruction.' In fact, said the Chief Justice, the dog 'might scent the bait, without committing any trespass,' so near was it placed to where the dog had a right to be without committing any trespass whatsoever. It takes great legal skill to distinguish the trespassing boy, having viewed the allurements of the park-like area across the crowded city street, where he had the right to be, from the trespassing dog that followed his instincts to his destruction, denying recovery to the trespassing boy, but granting it to the owner of the trespassing dog. We are not sure we possess the skill required.

We would be the last to deny, however, that there are real differences in the two cases. Thus the child has responsible parents. They have, as we pointed out in denying recovery to a trespassing child in Ryan v. Towar, 128 Mich. 463, 87 N.W. 644, 650, 55 L.R.A. 310, both a natural and a legal 'duty of care and watchfulness,' and it is often because of a parental lack of care that the trespassing child is injured. In other words, the parents must keep the children in. It is not up to the adjoining landowner to keep them out. But again the reported cases disturb our complacency, the logic of our reasoning. For this was also the common law with respect to trespassing cattle. Yet in 1848, the Supreme Court of Illinois (Seeley v. Peters, 5 Gilman 130, 10 Ill. 130) reversed the common law precedent. It thus became a landowner's responsibility to keep trespassing cattle out. Why the change? The Court recognized that the environment for cattle had changed, hence the rule as to their trespasses should also change. 'Cows on treeless and sparsely settled prairies required,' it was reasoned, 'different treatment from that given to cows in suburban * * * communities.' Seavey, Cogitations on Torts, 37; 19 N.A.C.C.A.L.J., 278. Do children, likewise, in the densely populated and industrialized areas of today, utilizing as their 'playgrounds,' city streets, piles of lumber, steel I-beams, vacant lots, even golf courses, require different treatment (meaning that as to them a landowner must exercise reasonable care) from the children of our frontier communities, even from the children of feudal times? This, simply stated, is our problem.

The issue relating, then, to an alleged trespass, we will consider in some detail the established facts bearing upon this point.

The record shows that the City of Detroit owns and operates the Redford golf course, where this accident occurred. It had, the city concedes, 'been open during the winter months for winter sports,' at which time children were permitted to enter for the purpose of play upon the skating rink and toboggan slide provided for their use. There would be 'maybe three or four hundred at a time tobogganing and sledding.' Infant plaintiff himself was often among this number and his usual method of gaining entrance to what was at this season of the year a playground was to crawl 'under these holes,' in the fence, rather than going around to the admission gate. (One witness testified that 'there were close to thirty holes around the entire golf course through which children could get onto the golf course. The largest hole is about four feet by six feet.' In addition, near the thirteenth fairway, 'We have a ditch running through, and, of course, when there is not water in there, it is quite a hole.' Finally, as another witness...

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