Shaw v. Wiegartz
| Decision Date | 21 June 1965 |
| Docket Number | No. 214,No. 2,214,2 |
| Citation | 135 N.W.2d 565,1 Mich.App. 271 |
| Parties | Mr. Allan SHAW and Eve M. Shaw, Plaintiffs, v. Mr. and Mrs. Albert WIEGARTZ, Defendants. Cal |
| Court | Court of Appeal of Michigan — District of US |
Evans & Shipper, Keego Harbor, for plaintiffs.
John K. Irwin, Jr., Pontiac, for defendants.
Before QUINN, P. J., and FITZGERALD and KAVANAGH, JJ.
No single human act has been so torturned by the law as the simple deed of going onto the property of another and being injured. Courts, in their efforts to refrain from imposing undue burdens on injured parties or landowners, have set up categories and categories-within-categories to designate the 'status' of the injured and the 'knowledge' of the landowner.
The tangled skein created by the law can only be unravelled by close inspection and this saga is no exception to this precept.
Plaintiff, Eve M. Shaw, is an aunt of defendant Dorothy Wiegartz. The husbands of each party, though named in the suit, figure little in the statement of events. Plaintiff suffered a fall down a basement stairs in defendants' home on August 24, 1963. Trial, on June 9, 1964, without a jury, resulted in a no cause of action on the ground of lack of knowledge of the hazardous stairs on the part of defendant. Plaintiff brings this appeal.
From time to time, previous to the accident, plaintiffs had lived with defendants in Royal Oak, contributing part of the food but paying no rent. Defendants purchased a new home at Walled Lake during the summer of 1963 and were scheduled to move on August 24. Sometime around August 22, the parties had a conversation relative to the cleaning-up and moving process. Plaintiff claims defendant asked her to come out and help her. Defendant claims that Mrs. Shaw volunteered for duty. At any rate, there was no discussion regarding compensation for Mrs. Shaw's services.
On August 24, Mrs. Shaw went to the premises for the first time with two other ladies and arrived some 15 minutes before defendant. The prior owners had moved out the day before. While getting ready to go to work, Mrs. Shaw walked to a darkened area in a normal manner and speed, thinking it was a hall (she asked specifically, 'What is this, a hall?') and fell down the basement stairs, breaking bones in both ankles.
Meanwhile, Dorothy Wiegartz, who had arrived on the scene, was talking on the telephone and had no chance to answer plaintiff Shaw's question. Neither had she told Mrs. Shaw of the nature of the stairs, described in testimony as the 'well-type,' being an opening cut out of the floor. There was no door as such, and the opening was mostly concealed by the outside door to the kitchen when that door was open. The walls were a continuation of the kitchen walls, the floor was a continuation of the kitchen floor. There was a light switch and a leght in the stairwell, but at the time of the fall, the light was not on. There was no hand rail. The ceiling was a continuation of the kitchen ceiling and the wall paint of the stairwell and the kitchen were the same.
The defendant had been on the premises three times before the day of the accident: one trip she had not been in the house; one trip she had not gone to the basement; her other trip included a visit to the basement in the company of the prior owners and while it was lighted. She testified she saw nothing unusual or hazardous at that time.
Thus, the relationships of the parties and the treacherous conditions bring us directly to the issues: What was the legal status of Mrs. Shaw and what duty of care was owed her and did defendant have sufficient knowledge of a hazardous condition to be charged with a legal duty to warn of the stairs?
A trespasser Mrs. Shaw was not, and we can reject that she was a business invitee on the premises since it was neither urged by counsel nor carried out by proofs. About the best that can be said for her is that she was a licensee, as befits the conflicting testimony as to whether she was asked to help in the cleaning or whether she volunteered her services.
Authorities have universally agreed that the 'licensee' is not entitled to the same degree of wariness for his safety on the premises of another as the 'business invitee.' If the family relationship is close, as is the case here, the most common term applied to such a visitor is a 'gratuitous licensee' and this is borne out by the American Law Institute's Restatement of Torts, § 331.
But what of the visitor who confers a benefit on the host during the course of the visit? It is well stated in 25 ALR2d 607 that minor services performed by the guest for the host during the course of the visit will not be sufficient to interrupt his status as a guest. The weight of authority for the duty owed licensees is likewise set out in 25 ALR2d 602 where it states 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 defects which the landlord knows are likely to cause harm to the guest, and which he has reason to believe the guest is not likely to discover for himself * * *' (Emphasis supplied.)
The court in its opinion found that the stairs in question were hazardous, but further...
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...finally finds the pathway to the exit. So it is with the review of the law relating to the question before us. In Shaw v. Wiegartz, 1 Mich.App. 271, 273, 135 N.W.2d 565 (1965), Judge Fitzgerald "Courts, in their efforts to refrain from imposing undue burdens on injured parties or landowners......
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