Rodriguez v. Detroit Sportsmen's Congress, Docket No. 88537
| Decision Date | 23 June 1987 |
| Docket Number | Docket No. 88537 |
| Citation | 159 Mich.App. 265,406 N.W.2d 207 |
| Parties | Ynderso RODRIGUEZ, and Albert Rodriguez and Rosa Rodriguez, as Guardians for Ynderso Carlos Rodriguez, a Minor, Plaintiffs-Appellants, v. DETROIT SPORTSMEN'S CONGRESS, a Michigan corporation, Order of Alhambra, Michigan Council of Caravans, a Michigan corporation, International Order of Alhambra, a non-profit organization, Russell Agosta, Richard Sosin, and Ronald Suwinski, Jointly and Severally, Defendant. 159 Mich.App. 265, 406 N.W.2d 207 |
| Court | Court of Appeal of Michigan — District of US |
[159 MICHAPP 267] Thurswell, Cheyet & Weiner by Harvey Cheyet, Southfield, for plaintiffs-appellants.
Dickinson, Brandt, Hanlon, Becker & Lanctot by David J. Lanctot, Detroit, for defendant Russell Agosta.
Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. by Deanna E. Hazen, Detroit, for defendant Detroit Sportsmen's Congress.
Natinsky, Jaffa, Katchke & Makrover by Leonard Natinsky, Southfield, for defendant Richard Sosin.
Carl W. Dengel, Syracuse, N.Y., for defendant Order of Alhambra.
Before BRONSON, P.J., and BEASLEY and HORN, * JJ.
Plaintiffs appeal as of right from a Wayne Circuit Court order which granted defendants' motions for summary disposition of plaintiffs' negligence action pursuant to MCR 2.116(C)(8) and (10). Plaintiffs Albert and Rosa Rodriguez are guardians of the minor son of the principal plaintiff, Ynderso Rodriguez, and are joined in this suit based on the child's loss of [159 MICHAPP 268] companionship of his father. For convenience, use of the word plaintiff or Rodriguez in this opinion will refer solely to the principal plaintiff, Ynderso Rodriguez.
The basic facts necessary for the resolution of this appeal are essentially undisputed. On April 6, 1982, the Order of Alhambra, Malaga Caravan No. 188, entered into a short-term lease agreement with the Detroit Sportsmen's Congress to use Warsaw Park for a fund-raising picnic to be held on July 18, 1982. Warsaw Park is owned by Detroit Sportsmen's Congress and is located on the Clinton River in Shelby Township. The Clinton River is not owned or controlled by the Detroit Sportsmen's Congress, and swimming in the river is prohibited. The land across the river is owned by the State of Michigan, Department of Natural Resources (DNR).
Plaintiff, along with several friends, attended the picnic sponsored by the Order of Alhambra at Warsaw Park and paid an admission fee of approximately three dollars. Rodriguez and his friends set up a picnic table about fifty feet from the river. At about 1:30 p.m., Rodriguez went swimming in the Clinton River. There were about ten to twenty other people also swimming in the river.
Later that day, Rodriguez again went into the water. He entered the river from an access point in Warsaw Park, swam across the river, approximately thirty feet, and climbed onto the opposite bank onto the real property owned by the DNR. Rodriguez got in line with approximately six other people waiting to climb into a tree on the DNR side of the river that angled out over the water for purposes of diving from the tree into the water. Rodriguez proceeded to jump from the tree into the water about five times. Other people were also using the tree as a diving board into the river. [159 MICHAPP 269] Plaintiff then climbed the tree for a sixth time and stood on a branch preparing to jump. However, the branch cracked and gave way, causing him to fall off-balance into shallow water. As a result of the fall, Rodriguez hit his head on the bottom and sustained permanent paralysis.
At the time of the accident, plaintiff was twenty-nine years old and weighed 185 to 190 pounds. He was a strong swimmer and had previously been the captain of his high school swim team. Plaintiff also had some diving experience. Rodriguez said that on the day of the accident, he did not see any signs warning him that swimming was not allowed, nor did anyone tell him that swimming in the Clinton River was dangerous. Further, the record indicates that plaintiff claimed that Detroit Sportsmen's Congress was aware that, prior to the accident, the "no swimming" signs it had posted were torn down, and that people using the park often swam and waded in the Clinton River. No guards, walls or barriers prevented this practice. It was also asserted that the Sportsmen's Congress knew that people often used the tree on the opposite bank as a diving board into the river.
Following his fall and injury, Rodriguez instituted the present action, alleging that defendants were negligent in failing to provide a safe place for recreation or in failing to provide appropriate warnings and signs prohibiting swimming in the river. Defendant Sportsmen's Congress promptly moved for summary disposition, asserting that plaintiff had failed to state a claim because they (Sportsmen's Congress) owed no duty to plaintiff to warn of dangers on property under the ownership and control of another. Defendant Sportsmen's Congress also argued that, since plaintiff's injury was caused by the shattering of a tree limb not located on defendant's property, his injuries were [159 MICHAPP 270] not foreseeable and any acts or omissions of defendant were not the proximate cause of plaintiff's injuries. The other defendants subsequently joined in the Sportsmen's Congress' motion asserting similar basis for dismissal.
The trial court granted defendants' motions for summary disposition, reasoning that defendants had no duty to plaintiff with respect to land situated across the river from the land defendants owned and/or controlled. The court also reasoned that summary disposition was appropriate because it was not reasonably foreseeable that plaintiff would be injured as a result of falling off a broken tree limb situated across the river from defendant Sportsmen's Congress' premises and on the land of another.
On appeal, plaintiff argues that the trial court clearly erred when it decided that defendants' duty to protect plaintiff from the dangers inherent in swimming in the river ceased at the time plaintiff crossed the river and reentered on the opposite shore on the real property of another. According to plaintiff, defendants had a duty to restrict, prohibit or warn plaintiff, a business invitee, of the dangers associated with swimming and diving in the river and that duty existed regardless of the location of the accident. We do not find plaintiff's reasoning persuasive or supported by the cases.
The determination of whether a legal duty exists is a question of whether the relationship between the actor and the plaintiff gives rise to any legal obligation on the actors part to act for the benefit of the subsequently injured person. 1 Further, a legal duty is essentially an obligation recognized by law which requires an actor to conform to a certain standard of conduct for the protection of [159 MICHAPP 271] others against unreasonable risk. 2 Thus, the determination of whether a duty should be recognized in any individual case is based on a balancing of the societal interest involved, the severity of the risk, the burden upon the defendant, the likelihood of occurrence and the relationship between the parties. 3 The element of duty in a negligence action is a question of law for the court to decide. 4
It is well settled in Michigan that the owner or possessor of land is required to take reasonable precautions to protect an invitee from dangers that are foreseeable. 5 However, the law does not ordinarily impose a duty of care upon the occupier of land beyond the area over which he has possession or control. 6 Where the occupant of one parcel of land has been held responsible for the condition of an adjoining parcel to which another has title or possession, such responsibility is predicated on the fact that he exercised...
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