Preston v. Sleziak, 3

Citation383 Mich. 442,175 N.W.2d 759
Decision Date13 April 1970
Docket NumberNo. 3,3
PartiesAnthony PRESTON, Plaintiff-Appellee, v. Raymond SLEZIAK and Delores Sleziak, Defendants-Appellants. Eleanor PRESTON, Plaintiff-Appellee, v. Raymond SLEZIAK and Delores Sleziak, Defendants-Appellants.
CourtSupreme Court of Michigan

Russell & Ward, by Walter J. Russell, Grand Rapids, for plaintiffs.

Cholette, Perkins & Buchanan, Grand Rapids (Edward D. Wells and Don V. Souter, Grand Rapids, of counsel), for defendants-appellants.

Before the Entire Bench.

T. M. KAVANAGH, Justice.

Plaintiffs, both adults, were spending the weekend as social guests at defendants' hilltop cottage overlooking the State Park at Grand Haven, Michigan. Access to the cottage was by either a 113-step stairway or a lift consisting of a car which was raised or lowered along railed tracks by means of cables and electric winch. The lift was of the home made variety, but the defendant husband repeatedly assured plaintiffs that it was safe. The parties entered the lift, and as the car was descending a shaft broke causing the car to crash to the bottom, injuring plaintiffs.

Plaintiffs filed an action alleging defendants were negligent in constructing, maintaining and operating the lift. The jury returned a verdict of no cause of action. Upon appeal, the Court of Appeals held that the trial judge did not properly instruct the jury as to the duty of a host to his guests, and reversed and remanded the cause for a new trial. 16 Mich.App. 18, 167 N.W.2d 477.

Defendants, here on leave granted (382 Mich. 755), state as the sole question on appeal:

Is the duty owing by a host to an adult social guest the same as that owing to a business invitee?

The trial judge charged the jury in part as follows:

'Now, in this particular case there is an unusual relationship between the plaintiffs and the defendants. It is clear that the plaintiffs were the guests of the defendants in the defendant's home. This brings us to what is their status and and how can we consider this.

'It has sometimes been said that a guest in a home such as this is a gratuitous invitee and that the host's only duty is not to injure by active or affirmative negligence a guest whose presence is known, not to set a trap or pitfall for the guest, to warn against or remove any defects which the host knows are likely to cause harm to the guest and which he has reasonable grounds to believe the guest is not likely to discover for himself, and generally not to cause injury by gross negligence, recklessness or wanton and willful misconduct.

'I should, therefore, inform you at this very point that there is no evidence in my opinion of any gross negligence, recklessness or wanton and willful misconduct, so that if you find liability you will have to find it on one of the other grounds, and I will discuss that more carefully with you.

'I should further inform you that a gratuitous invitee, which is the status of Mr. and Mrs. Preston, who goes upon his host's land, the host has the duty to advise--excuse me; strike that--that the host must exercise reasonable care to disclose to the guest the dangerous defects which were known to him and were likely to be undiscovered by the guest.

'I should further inform you that with regard to this status that 'a social guest injured by a defect in the premises cannot 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 present 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.'

"There is no duty on the part of the host to reconstruct or improve the premises for the purpose of making his house more convenient or more safe for those accepting his hospitality, gratuitously extended. The guest assumes the ordinary risks which attach to the premises.'

'Now, the reason for this rule is that a host merely offers his premises for enjoyment by his guests with the same security that the host and the members of his family who reside with him have in that particular home.'

The Court of Appeals acknowledged that the rule in a majority of jurisdictions is as stated by the trial judge. See 25 A.L.R.2d 598. The Court, however, relying upon the case of Genesee Merchants Bank & Trust Company v. Payne (1967), 6 Mich.App. 204, at 208, 148 N.W.2d 503, as a specific rejection of the general rule indicated that the Michigan cases have uniformly cited with approval Cooley on Torts, p. 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 Blakely v. White Star Line (1908), 154 Mich. 635, 637, 118 N.W. 482; 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." (16 Mich.App. 20, 167 N.W.2d 479)

It, therefore, reversed and remanded for a new trial on the grounds that Michigan law classifies the social guest as an invitee. Such construction erroneously departs from the well-established rule of law in this State respecting social guests.

It is true that Cooley's oft-quoted statement on torts accurately expressed the law in this State. But a careful reading of Cooley's work 1 indisputably discloses that the enunciated rule applies solely to invitees. Every authority cited and illustration given concern a business invitee or general public invitee. To seize upon the words 'or for any other purpose' as justification for equating an invited social guest and a legally defined 'invitee' is unwarranted. It should be noted that Justice Cooley, expressing this rule in Samuelson v. Cleveland Iron Mining Company (1882), 49 Mich. 164, at 170, 13 N.W. 499, himself deleted this overly broad phraseology. Furthermore, to attribute a legally synonymous meaning to social guest and invitee discordantly blurs the distinction so carefully preserved by the author at pp. 193, 194:

'An invitation may be inferred when there is a common interest or mutual advantage, a license when the object is the mere pleasure or benefit of the person using it. 'To come under an implied invitation, as distinguished from a mere license, the visitor must come for a purpose connected with the business with which the occupant of the premises is engaged, or which he permits to be carried on there. There must be some mutuality of interest in the subject to which the visitor's business relates, although the particular business which is the object of the visit may not be for the benefit of the occupant.

"The distinction between a visitor who is a mere licensee and one who is on the premises by invitation turns largely on the nature of the business that brings him there, rather than on the words or acts of the owner which precede his coming. Permission involves lease and license, but it gives no right." 3 Cooley on Torts, § 440 (4th Ed.).

Consonant with the above distinction and more in keeping with the factual circumstances surrounding the case of a social guest is the statement found at p. 198:

"The owner or occupant of premises is not under any legal duty to keep them free or safe from the danger of obstructions, pitfalls, excavations, trapdoors or openings in floors for persons who go upon, into, or through the premises, Not by his invitation, express or implied, but for their own pleasure or convenience, though by his acquiescence or permission, and who, therefore, are mere licensees. Such a visitor enjoys the license subject to the attendant risk." (Emphasis supplied.)

The cases cited by the Court of Appeals, Of course support the rule given by Cooley. With the exception of one case discussed more fully, Infra, each decision cited was based upon the fact that the possessor of the land was the operator of a business and the injured party was present as a business invitee. 2 They do not, however, support the rule pertaining to social guests, discussed Infra, and are wholly inapposite.

The single case cited by the Court of Appeals touching upon the issue before us--although admittedly dicta 3--is Genesee Merchants Bank & Trust Company v. Payne, Supra, (hereafter referred to as Payne).

In Payne the Court of Appeals properly assayed the historical 'distinction between an invitee and a licensee, and the duties owed to each' (as turning) 'on whether the invitor had expectation of gaining pecuniary benefit from the invitation.' (6 Mich.App. p. 208, 148 N.W.2d p. 506) The Court likewise correctly implied that in this State the status of an invitee is tested not only by the theory of economic benefit, but also upon the concept of invitation. See Hargreaves v. Deacon (1872), 25 Mich. 1, 5; Nezworski v. Mazanec (1942), 301 Mich. 43, 59, 60, 2 N.W.2d 912; see, also, 2 Harper & James, Torts, § 27.12.

But the Court of Appeals in Payne committed the identical error as did the Court of Appeals in the instant case when it failed to distinguish between one who is invited and one who is De jure an invitee, and then attempted to support its extrapolated...

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  • Kreski v. Modern Wholesale Elec. Supply Co.
    • United States
    • Supreme Court of Michigan
    • 1 May 1987
    ...must be on the premises for a purpose directly or indirectly related to the owner's or occupant's business. Preston v. Sleziak, 383 Mich. 442, 450, 175 N.W.2d 759 (1970), citing with approval 2 Restatement Torts, 2d, Sec. 332. However, fire fighters and police officers enter the property no......
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    ...risk involved, and(c) the licensees do not know or have reason to know of the condition and the risk involved." [ Preston v. Sleziak , 383 Mich. 442, 453, 175 N.W.2d 759 (1970), quoting Restatement Torts, 2d, § 342, p. 210, overruled in part on other grounds by Stitt v. Holland Abundant Lif......
  • Quinlivan v. Great Atlantic & Pacific Tea Co., Inc., 12
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    • 25 November 1975
    ...for a general discussion of the duty owed an invitee and distinction between such duty and the duty owed a licensee, Preston v. Sleziak, 383 Mich. 442, 175 N.W.2d 759 (1970), and compare Torma, supra--a case which recognizes this rigorous duty--and the cases cited above which discuss and re......
  • Kreski v. Modern Wholesale Elec. Supply Co., Docket Nos. 80629
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    • 4 August 1986
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