Socha v. Passino
| Decision Date | 23 February 1981 |
| Docket Number | Docket No. 50072 |
| Parties | Thomas SOCHA, Plaintiff-Appellee, v. Jack PASSINO and Jaclyn Passino, Defendants-Appellants. |
| Court | Court of Appeal of Michigan — District of US |
Nathaniel W. Stroup, Petoskey, for defendants-appellants.
Jerry L. Sumpter, Cheboygan, for plaintiff-appellee.
Before T. M. BURNS, P. J., and ALLEN and WALSH, JJ.
Plaintiff brought a suit to recover damages for injuries sustained in a fall from the balcony of defendants' house. 1 The jury rendered a verdict in favor of the plaintiff in the amount of $10,000. Defendants' motions for new trial and for judgment notwithstanding the verdict were denied.
The suit arose from an accident which occurred as plaintiff was moving a bed which had been given to plaintiff's aunt by defendants. While lowering the mattress from a second story balcony, plaintiff leaned against a railing constructed by defendant Jack Passino. The railing gave way and plaintiff fell approximately 15 feet.
Over defendants' objection, the trial court allowed the jury to decide whether plaintiff was an invitee or a licensee. In finding for plaintiff, the jury stated on the special verdict form that both defendants were negligent "(without their knowledge)".
Defendants argue that the trial court erroneously instructed the jury on the standard of care owed to an invitee because there was no evidence that plaintiff was an invitee. We agree and remand for a new trial.
A trial judge is required to give instructions so that the jury is fully and properly apprised of the applicable law. Berlin v. Snyder, 89 Mich.App. 38, 279 N.W.2d 322 (1979). Consequently, it is error to give an instruction when there is no testimony in the record to support it. Campbell v. Charles J. Rogers Construction Co., 58 Mich.App. 411, 419, 228 N.W.2d 398 (1975).
An invitee has been defined as one who is on the owner's premises for a purpose mutually beneficial to both parties. Kucken v. Hygrade Food Products Corp., 51 Mich.App. 471, 474, 215 N.W.2d 772 (1974); Dobbek v. Herman Gundlach, Inc., 13 Mich. 549, 554, 164 N.W.2d 685 (1968). In Preston v. Sleziak, 383 Mich. 442, 450-451, 175 N.W.2d 759 (1970), the Court adopted the following Restatement definition of the term invitee:
"(3) 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." Restatement Torts, 2d, § 332, p. 176.
An individual can be an invitee if the visit may reasonably be said to confer or anticipate a business, commercial, monetary, or other tangible benefit to the occupant. Leveque v. Leveque, 41 Mich.App. 127, 130, 199 N.W.2d 675 (1972).
On the other hand, a licensee is one who desires to be on the premises because of some personal, unshared benefit and is merely tolerated on the premises by the owner. Dobbek, supra, 554, 164 N.W.2d 685. Typical examples illustrating a licensee include an individual who enters the premises to recover an item of personal property or to obtain some article of value given to the licensee by the occupant. 62 Am.Jur.2d, Premises Liability, § 52, p. 293.
In the present case, plaintiff was on defendants' premises to obtain a bed given to plaintiff's aunt. Although the discussion concerning this item of furniture took place at a garage sale, it is undisputed that the bed was not connected with the sale in any way and that no money exchanged hands. Plaintiff's claim in his theory of the case that defendants were benefited by their being relieved of the obligation of disposing of the items is unsupported by the record. The testimony established that the new purchaser of defendants' house had already agreed with defendants to accept any furniture that was left behind after they had moved. Defendants were under no...
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...to both parties, Danaher v. Partridge Creek Country Club, 116 Mich.App. 305, 312, 323 N.W.2d 376 (1982); Socha v. Passino, 105 Mich.App. 445, 447, 306 N.W.2d 316 (1981). An individual is an invitee if his or her visit may reasonably be said to confer or anticipate a business, commercial, mo......
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...("[A]n invitee is one who is on the owner's premises for a purpose mutually beneficial to both parties"); Socha v. Passino, 105 Mich.App. 445, 447-448, 306 N.W.2d 316 (1981) ("An individual can be an invitee if the visit may reasonably be said to confer or anticipate a business, commercial,......
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Danaher v. Partridge Creek Country Club
...has defined an invitee as one who is on the owner's premises for a purpose mutually beneficial to both parties. Socha v. Passino, 105 Mich.App. 445, 306 N.W.2d 316 (1981); Kucken v. Hygrade Food Products Corp., 51 Mich.App. 471, 215 N.W.2d 772 The duty which an occupier of land owes an invi......
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