Magerowski v. Standard Oil Company

• Citation: 274 F. Supp. 246
• Decision Date: 26 September 1967
• Docket Number: Civ. A. No. 5453.
• Parties: Ingeborg MAGEROWSKI, Administratrix of the Estate of Nicholas Magerowski, Deceased, Plaintiff, v. STANDARD OIL COMPANY, a Division of American Oil Company, a foreign corporation, Defendant.
• Court: U.S. District Court — Western District of Michigan

274 F. Supp. 246

Ingeborg MAGEROWSKI, Administratrix of the Estate of Nicholas Magerowski, Deceased, Plaintiff, v. STANDARD OIL COMPANY, a Division of American Oil Company, a foreign corporation, Defendant.

Civ. A. No. 5453.

United States District Court W. D. Michigan, S. D.

September 26, 1967.

Marcus, McCroskey, Libner, Reamon, Williams & Dilley, Muskegon, Mich., for plaintiff, Vernon D. Kortering, Muskegon, Mich., of counsel.

Cholette, Perkins & Buchanan, Grand Rapids, Mich., for defendant, Don V. Souter, Grand Rapids, Mich., of counsel.

OPINION

FOX, District Judge.

In a wrongful death action, defendant Standard Oil Division of American Oil Company moves for dismissal, or in the alternative summary judgment against plaintiff Ingeborg Magerowski, adminisstratrix of the estate of Nicholas Magerowski, on the ground that plaintiff has failed to state a claim upon which relief can be granted.

The facts can be summarized as follows: Around October 17, 1963, plaintiff's decedent, Nicholas Magerowski, while attempting to fish from defendant's dock fell and drowned. Nicholas was nine years old at the time of his death. Defendant claims that Nicholas was a trespasser, present on its property without either its express or implied consent.

Count I of plaintiff's complaint alleges negligence, and Count II asserts gross negligence.

Michigan Statutes Annotated 13.1485, Comp.Laws 1948, § 300.201, provides:

"No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, or other similar outdoor recreational use, with or without permission, against the owner, tenant or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant or lessee."

In 1965, the Michigan Supreme Court in Heider v. Michigan Sugar Co., 375 Mich. 490, 134 N.W.2d 637 (1965), cert. den. 383 U.S. 905, 86 S.Ct. 892, 15 L.Ed.2d 661 (1966), held that the above statute is applicable to infants. Accordingly, Count I of plaintiff's complaint must be dismissed.

Count II alleges substantially that defendant was guilty of willful and reckless misconduct in that, knowing infants used its facilities, defendant failed to guard against their entry onto its property.

Section 339, Restatement of Torts, 2d, provides:

"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

(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."

Defendant asserts that it can be stated as an almost universal rule that the doctrine of attractive nuisance is not applicable to ponds, lakes, and reservoirs, unless they contain a latent danger or condition.

A landowner in Michigan is not per se immune from liability to a child injured by an open and natural condition.

In Lyshak v. City of Detroit, 351 Mich. 230, 88 N.W.2d 596 (1958), Justice Talbot Smith in a landmark opinion, set forth the general principles which Michigan courts must follow in analyzing the rights and duties of landowners to trespassing children. Although not specifically deciding the issue, Justice Smith indicated...