Reetz v. Tipit, Inc.

• Decision Date: 04 August 1986
• Docket Number: Docket No. 81702
• Citation: 390 N.W.2d 653,151 Mich.App. 150
• Parties: Laura REETZ, Plaintiff-Appellant, v. TIPIT, INC., Defendant-Appellee. 151 Mich.App. 150, 390 N.W.2d 653
• Court: Court of Appeal of Michigan — District of US

Page 653

390 N.W.2d 653

Laura REETZ, Plaintiff-Appellant, v. TIPIT, INC., Defendant-Appellee.

Docket No. 81702.

151 Mich.App. 150, 390 N.W.2d 653

Court of Appeals of Michigan.

Submitted Nov. 14, 1985.

Decided Jan. 24, 1986.

Released for Publication Aug. 4, 1986.

[151 MICHAPP 151] Harvey, Kruse, Westen & Milan, P.C. by Michael F. Schmidt and Terry J. Pawlowski, Detroit, for plaintiff-appellant.

Holahan, Malloy, Maybaugh & Monnich by J. Michael Malloy, III, Troy, for defendant-appellee.

Before BEASLEY, P.J., and V.J. BRENNAN and CYNAR, JJ.

PER CURIAM.

The plaintiff filed a negligence action against the defendant, Tipit, Inc., doing business as Tipit Lounge, on July 22, 1983. The complaint alleged that the plaintiff was a police officer for the City of Detroit on Sunday, October 3, 1982. On that date, the plaintiff was summoned [151 MICHAPP 152] to the Tipit Lounge in the City of Detroit to investigate a breaking and entering which had been reported. The plaintiff arrived at the Tipit Lounge at approximately 10:30 a.m. While in the interior of the lounge investigating the report, the plaintiff fell through an open trapdoor in the floor and landed approximately ten feet below on a concrete floor in the basement. The fall caused the injuries for which she brought suit.

In her complaint, the plaintiff alleged that she was a business invitee while she was discharging her duties as a police officer in the Tipit Lounge. The plaintiff further alleged that the defendant was negligent in failing to exercise reasonable care for her protection, to warn her of any dangers of which the defendant was aware or had created, to inspect its premises to discover possible dangerous conditions and to take any precautions to protect the plaintiff.

The defendant moved for summary judgment under both GCR 1963, 117.2(1) and 117.2(3) arguing that, as a matter of law, plaintiff was not a business invitee as she was a police officer in the discharge of her duties at the time of her injury. The trial court granted defendant's motion in an order dated September 17, 1984, after ruling that plaintiff's status was that of a licensee and the defendant did not owe a duty of care as plaintiff alleged in her complaint. In an order dated November 5, 1984, the trial court reaffirmed its prior ruling, denied plaintiff's motion for rehearing and denied plaintiff's request to amend her complaint. Plaintiff appeals from these orders as of right.

The first issue for our consideration is whether the trial court erred in its determination that plaintiff was a licensee on defendant's premises while acting in discharge of her duties as a police officer.

[151 MICHAPP 153] In Michigan, the courts have determined that the duty a landowner or occupier owes to a visitor who is injured while on the land or premises depends upon the status of the injured party at the time of the injury. Leep v. McComber, 118 Mich.App. 653, 657, 325 N.W.2d 531 (1982), lv. den. 417 Mich. 1005 (1983). Three common law status categories are recognized in Michigan for persons who enter upon the land or premises of another: (1) trespasser; (2) licensee; or (3) invitee. See Polston v. S. S. Kresge Co., 324 Mich. 575, 37 N.W.2d 638 (1949). Michigan has not abandoned these common law classifications.

Although Michigan has not addressed the question of the legal status of a police officer who enters upon the lands or premises of another in the performance of an officer's duties, half of our sister jurisdictions have decided the question without achieving any uniformity in the results reached. A large number of courts have treated police officers as licensees. Others have granted officers invitee status and a minority of the courts have created a special classification or status entitled "sui generis" rather than trying to fit an officer into the common law classifications. Another minority trend has been to abandon the traditional status classifications and treat status as nondeterminative of any duty owed to a visitor. These courts have established a common duty of reasonable care to all visitors lawfully on the premises of another. See 30 A.L.R.4th 81 (1984).

The Restatement Torts, 2d, Sec. 345, describes the status of police officers who enter the land of another in the exercise of a privilege (conferred by law), independent of the consent of the possessor of the land. Under most circumstances, an officer is treated as a licensee. However, when the officer enters upon a premises held open for the use of [151 MICHAPP 154] the public, at a time when the premises is open to the public, the officer will be considered an invitee, because the officer "may reasonably assume that reasonable care has been used to prepare the land for the reception of the public, and to make it safe for them". Comment e to 2 Restatement Torts, 2d, Sec. 345(2), p. 229.

2 Restatement Torts, 2d, Sec. 345, p. 226-227 states:

"(1) Except as stated in Subsection (2), the liability of a possessor of land to one who enters the land only in the exercise of a privilege, for either a public or a private purpose, and irrespective of the possessor's consent, is the same as the liability to a licensee.

"(2) The liability of a possessor of land to a public officer or employee who enters the land in the performance of his public duty, and suffers harm because of a condition of a part of the land held open to the public, is the same as the liability to an invitee."

Traditionally, both firemen and police officers "have been held to be mere licensees, entering under a privilege conferred by legal authority". Prosser & Keeton On Torts (5th ed), Sec. 61, pp 429-430 (1984). Comment c to 2 Restatement Torts, 2d, Sec. 345 clearly differentiates between public officers and employees such as building and safety inspectors who are accorded invitee status and firemen and police officers who are generally given only licensee status:

"c. The rule stated in Subsection (1) applies where there is entry only under a privilege to enter, without any additional factors which may increase the obligation of the possessor to the visitor. Those who enter land in the exercise of a privilege conferred by authority of law, irrespective of the [151 MICHAPP 155] possessor's consent, may have the status of invitees, as stated in Sec. 332, if they come for a purpose directly or indirectly connected with the business of the possessor. In that event they are entitled to the greater protection afforded to invitees * * *. Thus a building, sanitary, or safety inspector who enters business premises to perform his public duty is an invitee, since his presence is closely connected with the business conducted there, and may even be indispensable to it. The same is true of public employees who enter a private residence for the purpose of some business with the possessor, as in the case of a garbage collector, or the reader of a city water meter. It is not necessary that the presence of the visitor be in any way of pecuniary advantage to the possessor, and a tax or customs collector who enters to perform his public duty is an invitee.

"On the other hand firemen and policemen entering under authority of law, without any such element of business dealing, are commonly held by the courts to stand on the same footing as licensees. Occasionally they are called licensees; sometimes they are said to be sui generis, but on the same footing as licensees. One explanation for this lies in the fact that firemen and policemen are likely to enter at unforeseeable times, upon unusual parts of the premises, and under circumstances of emergency,...