Shears v. Pardonnet, Docket No. 31516
| Decision Date | 06 December 1977 |
| Docket Number | Docket No. 31516 |
| Citation | 80 Mich.App. 358,263 N.W.2d 373 |
| Parties | Lorn Eugene SHEARS, Plaintiff-Appellant, v. George PARDONNET and Margaret Pardonnet, Kenneth Haughton and Avco Corporation, a Delaware Corporation, doing business in Michigan, Defendants- Appellees, and John McConnell, d/b/a McConnell Equipment Co., Defendant. 80 Mich.App. 358, 263 N.W.2d 373 |
| Court | Court of Appeal of Michigan — District of US |
[80 MICHAPP 360] Church, Wyble, Kritselis & Tesseris by Thomas H. Hay, Lansing, for plaintiff-appellant.
Fraser, Trebilcock, Davis & Foster by Robert W. Townsend and Michael H. Perry, Lansing, for Pardonnet and Haughton.
Smith, Haughey, Rice & Roegge by David O. Haughey and Lance R. Mather, Grand Rapids, for defendants-appellees.
Before QUINN, P. J., and V. J. BRENNAN and BOSMAN, * JJ.
Plaintiff appeals a judgment entered on a jury verdict for defendants. This action arises out of an incident in which plaintiff, a 15-year-old boy, sustained injuries on defendant Pardonnets' farm. On December 29, 1970, plaintiff, having heard that defendants Pardonnet and Haughton, partners in a dairy farm, were hiring, went to defendants' farm seeking employment. When told that there were no job openings plaintiff, instead of leaving the farm, went to visit his step-uncle who lived on defendant Pardonnets' farm and worked there as a tenant farmer.
After spending the afternoon in his step-uncle's [80 MICHAPP 361] house, plaintiff and his step-cousin left the house after supper to look around the barnyard. Plaintiff, feeling the need to urinate, headed toward a dark area of the barnyard where his leg became entangled in an underground feed auger resulting in severe permanent injuries to his leg. Defendant Avco Corporation was the manufacturer of the auger which was installed on the farm in 1964.
Plaintiff claims defendant Avco's failure to cover the auger with adequate plates, and to install a cut-off switch to make the auger inoperative when the protective cover was out of place, constituted negligence. Plaintiff's first claim of error is the trial court's instruction to the jury that they could find the plaintiff either an invitee, a licensee or trespasser. It was defendant Pardonnet's claim that previously he had forbidden the tenant cousin from going in the area of the premises where plaintiff was injured.
The status of a person on the land of another is ordinarily a question of fact for the jury. Nezworski v. Mazanec, 301 Mich. 43, 2 N.W.2d 912 (1942); Hranach v. Proksch Construction Co., 69 Mich.App. 540, 245 N.W.2d 345 (1976). It cannot be said that the evidence demonstrated plaintiff was a licensee or invitee as a matter of law.
Since hiring an employee is part of a business enterprise, plaintiff could be deemed to be an invitee if defendant Pardonnets had made any type of overture to the general public regarding the hiring of employees.
"A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land." 2 Restatement Torts, 2d, § 332(3), p. 176.
However, upon being advised that there was no [80 MICHAPP 362] work available plaintiff did not leave the property but remained for the purpose of visiting his step-uncle and cousin. His status of invitee would last only as long as he remained on the property within the scope of that status.
2 Restatement Torts, 2d, § 332, Comment 1, p. 181.
If plaintiff was a guest or licensee of his cousin he could gain no better right to enter the defendants' property than his cousin. Thus, a jury could find that plaintiff's cousin was forbidden to be in the area where plaintiff was injured and plaintiff through this relationship could be considered a trespasser.
We conclude that the status of plaintiff is one dependent on the facts to be determined by the jury and find that the trial court did not err in instructing the jury on this point.
Plaintiff also contends that the court committed error in giving defendant Avco's requested instruction No. 10 following the giving of SJI 25.21 and 25.23 on implied warranty. Avco's requested instruction No. 10 reads as follows:
The first paragraph of requested instruction No. 10 is a clear misstatement of the law in Michigan. The test for assessing a manufacturer's liability to persons injured by their product is whether the risk to the plaintiff is unreasonable and foreseeable by the manufacturer, not whether the risk is patent or obvious to the plaintiff. Casey v. Gifford Wood Co., 61 Mich.App. 208, 218, 232 N.W.2d 360, 364-365 (1975). Coger v. Mackinaw Products Co., 48 Mich.App. 113, 210 N.W.2d 124 (1973).
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