Miller v. Miller

• Decision Date: 02 September 1964
• Docket Number: No. 48,48
• Citation: 129 N.W.2d 885,373 Mich. 519
• Parties: Lillian MILLER, Plaintiff and Appellant, v. Donald MILLER and Norma Miller, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 885

129 N.W.2d 885

373 Mich. 519

Lillian MILLER, Plaintiff and Appellant, v. Donald MILLER and Norma Miller, Defendants and Appellees.

No. 48.

Supreme Court of Michigan.

Sept. 2, 1964.

John W. Piggott, Bay City, for plaintiff and appellant.

Walter J. Barkey, Flint, for defendants and appellees.

Before the Entire Bench, except BLACK, J.

KELLY, Justice.

Appellant brought suit against her son and his wife, appellees herein, to recover damages for personal injuries allegedly suffered as a result of defendants' negligence.

Plaintiff had gone to her son's home for a social visit and to deliver clothing for his children. As she attempted to leave, she discovered the front porch screen door was stuck and would not open. She tried pushing against the door with a basket she was carrying and when this did not open the door, she tried unsuccessfully to push the door open with her right hand. Plaintiff was then advised by her son to 'give it a kick, it sticks sometimes,' wherupon the door opened suddenly, hurtling plaintiff out the door and down the steps with the result that she suffered injuries to her back.

Plaintiff filed her declaration on June 7, 1962, alleging that defendants owed to plaintiff a duty to maintain the premises in a reasonably safe condition, to warn of any existing dangerous conditions, and to refrain from creating and maintaining any trap-like conditions, including the sticky porch door.

Depositions of plaintiff and her son, Donald Miller, were taken in February, 1963. Plaintiff testified that the porch door stuck as she attempted to leave; that she was carrying a basket in her hands and so first gave the door a kick after having unsuccessfully pushed against the door with the basket, and then with her right hand; that as a result of her kick the door opened quickly and she tumbled out through the door.

On February 26, 1963, defendants filed motion for summary judgment arguing that plaintiff was a social guest in their home; that 'if a door which sticks is considered to be a 'trap' or 'hidden defect' plaintiff was warned by the defendants and had actual knowledge at the time of the accident, of the condition of the door', and, therefore, that defendants are 'entitled to a summary judgment as a matter of law.'

The trial court in a written opinion filed June 25, 1963, granted defendants' motion for summary judgment, agreeing with defendants' contention that the plaintiff was a social guest and, under Michigan law, a licensee with respect to whom the owner of the premises has the duty to use ordinary care to prevent injury arising from said owner's active negligence, and to warn of hidden perils. The court determined that viewing the facts in a light most favorable to plaintiff, it could not be said that defendants were guilty of active negligence, nor could it be said that if the porch door was a trap that plaintiff was not aware of such. The court also held plaintiff guilty of contributory negligence as a matter of law.

On July 19, 1963, judgment was entered in favor of defendants.

Plaintiff now appeals, conceding 'that she was a social guest, and that defendants owed to her only ordinary care; to warn of hidden perils; to refrain from wilfully and wantonly causing her harm; and to refrain from injuring her through active negligence.' Plaintiff contends however that the sticky door, because of its proximity to the edge of the porch, and the fact that it opened outward was a "trap-like' condition' and that under these circumstances, coupled with the instruction from her son to 'kick the door' and her prior lack of knowledge of the sticky condition, a fact question was presented for the jury as to defendants' negligence and plaintiff's contributory negligence.

Plaintiff also argues that for the trial court to rule on the motion based on discovery depositions alone that plaintiff was guilty of contributory negligence as a matter of law without considering all of the factors, is a deprivation of plaintiff's right to a jury trial.

By her foregoing concessions, plaintiff has placed upon her host that duty which is set forth in 25 A.L.R.2d 600 as follows:

'The results of the cases display a commendable unanimity in holding that a social guest injured by a defect in the premises may not recover against his host in the absence of evidence establishing something more than ordinary negligence in the maintenance of the premises. More specifically, it has been held that a guest can recover only where his injury is the result of active and affirmative negligence of the host while the guest was known to be on the premises, or of the failure of the host to remove or warn against defects amounting to a trap or pitfall known by the host to prersent a danger to the guest, and which he also knows the guest will not, in the exercise of reasonable care, discover and avoid for himself.'

See, also, 38 Am.Jur., Negligence, § 117, p. 778.

The depositions of plaintiff and defendant Donald Miller clearly support the trial court's finding that defendants were not guilty of active negligence, nor were they guilty of wilfully or wantonly causing plaintiff harm, or of failure to warn of hidden perils. We also agree with the trial court's finding that absent the question of defendants' negligence, the plaintiff is guilty of contributory negligence as a matter of law. The deposition of plaintiff clearly indicates that she knew the door was difficult to open and yet she persisted in attempting to kick it open while holding a basket in her hands.

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