Preston v. Sleziak

• Court: Court of Appeal of Michigan
• Writing for the Court: R. B. BURNS
• Citation: Preston v. Sleziak, 167 N.W.2d 477, 16 Mich.App. 18 (Mich. App. 1969)
• Decision Date: 24 February 1969
• Docket Number: 4293,No. 3,Docket Nos. 4292,3
• Parties: Anthony PRESTON and Eleanor Preston, Plaintiffs-Appellants, v. Raymond SLEZIAK and Dorothy Sleziak, Defendants-Appellees

Page 477

167 N.W.2d 477

16 Mich.App. 18

Anthony PRESTON and Eleanor Preston, Plaintiffs-Appellants, v. Raymond SLEZIAK and Dorothy Sleziak, Defendants-Appellees.

Docket Nos. 4292, 4293.

Court of Appeals of Michigan, Division No. 3.

Feb. 24, 1969.

Released for Publication May 15, 1969.

Walter J. Russell, Dunn, Russell & Dunn, Grand Rapids, for appellants.

Don V. Souter, Cholette, Perkins & Buchanan, Grand Rapids, for appellees.

Before R. B. BURNS, P.J., and J. H. GILLIS and CORKIN, ^* JJ.

R. B. BURNS, Presiding Judge.

Plaintiffs were spending a weekend as invited guests at defendants' hilltop cottage. Access to the cottage was by either a 113-step stairway or an elevator. The elevator consisted of a car that was raised or lowered along railed tracks by means of cables and an electric winch. Injuries to plaintiffs occurred when the car on which they were descending crashed to the bottom of the hill. The elevator was of the homemade variety and the defendant-husband repeatedly assured plaintiffs that it was safe. Plaintiffs claim their injuries were caused by defendants' negligence in constructing, maintaining, and operating the elevator. They appeal the entry of a judgment upon a jury verdict of no cause of action and denial of their motion for a new trial.

The decisive issue on appeal is whether defendants exercised that degree of care required for the safety of social guests while on defendants' property. The trial judge in his opinion on the motion for new trial stated:

'The plaintiffs were social guests at the defendants' cottage. The court gave instructions to the jury based upon the fact that the plaintiffs were licensees and as such were gratuitous invitees and that the hosts had only the duty not to injure by active or affirmative negligence and to warn of any dangers which the guests were not likely to discover.'

Plaintiffs contend that under Michigan authority they were invitees to whom defendants owed the duty of exercising ordinary care to render the premises reasonably safe for their visit.

The rule in a majority of jurisdictions is similar to that stated by the trial judge. See Annotation, Liability for injury to guest in home or similar premises, 25 ALR 2d 598.

However, Michigan cases involving invitees have been uniform in approval of the following statement from Cooley on Torts, page 605:

'One is under no obligation to keep his premises in safe condition for the visits of trespassers. On the other hand, when he expressly or by implication invites others to come upon his premises, whether for business Or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit.' (Emphasis supplied.) See Blakeley v. White Star Line (1908), 154 Mich. 635, 637, 118 N.W. 482, 19 L.R.A.,N.S., 772; Torma v. Montgomery Ward & Company (1953), 336 Mich. 468, 476, 477, 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, 310, 136 N.W.2d 32; and Genesee Merchants Bank & Trust Company v. Payne (1967), 6 Mich.App. 204, 208, 209, 148 N.W.2d 503. See also Lauchert v. American S.S. Co. (W.D.N.Y.1946), 65 F.Supp. 703, 709.

In Genesee, supra, this Court, commenting on defendants' claim that social guests are licensees under the contemplation of the law, said:

'Michigan does not follow this rule (See Polston v. S. S. Kresge Co. (1949), 324 Mich. 575, 578, 37 N.W.2d 638.) In Michigan when one expressly or by implication invites others to come upon his...