Taylor v. Mathews

• Decision Date: 25 April 1972
• Docket Number: No. 2,Docket No. 10522,2
• Citation: 198 N.W.2d 843,40 Mich.App. 74
• Parties: Delmar TAYLOR, a minor, by his next friend, William Taylor, et al., Plaintiffs-Appellants, v. Harvey C. MATHEWS et al. Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 843

198 N.W.2d 843

40 Mich.App. 74

Delmar TAYLOR, a minor, by his next friend, William Taylor et al., Plaintiffs-Appellants, v. Harvey C. MATHEWS et al. Defendants-Appellees.

Docket No. 10522.

Court of Appeals of Michigan, Division No. 2.

April 25, 1972.

Released for Publication June 30, 1972.

Leave to Appeal Denied June 28, 1972.

Arnold M. Gordon, Weinstein, Kroll & Gordon, Detroit, forplaintiffs-appellants.

Gault, Davison & Bowers, Flint, for defendants-appellees.

Before McGREGOR, P.J., and HOLBROOK and VanVALKENBURG ^*, JJ.

HOLBROOK, Judge.

This cause of action results from injuries sustained by plaintiffs' minor son when he dove from a board attached to a tree and struck his head on the bottom of a gravel pit. The pond is located in Genesee County and owned by defendant Irene C. Earle. The area has been under lease since February 1963, to defendants Harvey C. Mathews, Benjamin F. Mathews, Harry E. Mathews, and Earl L. Mathews, doing business as Mathews Gravel Company. Earl L. Mathews is now deceased.

The mishap took place on September 19, 1965, when Delmar Taylor, then 15 years of age, accompanied by three companions, went to the abandoned pit to swim. The pond had not been used for its intended purpose of a gravel pit for a number of years but was frequently used as a recreational swimming place for more than 25 years.

On September 18, 1968, suit was started in the Circuit Court for Genesee County charging the defendants with negligence. On May 20, 1970, defendants moved for summary judgment contending plaintiffs failed to state a cause of action. The motion was founded upon M.C.L.A. § 300.201; M.S.A. § 13.1485, which is set out below:

'No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other person a valuable consideration for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing or other similar outdoor recreational use, with or without permission, against the owner, tenant or lessee of said premises unless the injuries were caused by the Gross negligence or Wilful and wanton misconduct of the owner, tenant or lessee.' (Emphasis supplied.)

The trial court reserved its decision and allowed plaintiffs 30 days to file an amended complaint. Plaintiffs amended by adding Count II to their complaint which alleged gross negligence and wilful and wanton misconduct by defendants which caused injuries to Delmar Taylor.

The main allegations of Count II ¹ of plaintiffs' amended complaint were (1) that defendants maintained a gravel pit which contained water on a particular portion of the property; that the level of the water of the gravel pit varied during different periods of the year; that the gravel pit was used by youngsters and others to swim in; that there was a diving board placed on a tree which extended over the water, which was used by the youngsters to dive from; that the maintenance of the gravel pit and the permitting of the diving board to remain in place and to be used constituted a dangerous condition which required the use of ordinary care and diligence to avoid an injury to one of the youngsters using the same; and further that all of these facts were known to the defendants; (2) that defendants were capable of averting the injury to the plaintiff by ordinary care in using the means available to them; and (3) that defendants' failure to use such care resulted in the injury to the plaintiff and that defendants were aware of such possible injury.

In considering the motion for summary judgment, the trial court had before it the pleadings, answers to interrogatories, and depositions of three of the named defendants, together with six depositions of witnesses including the plaintiff Delmar Taylor.

Upon renewal of defendants' motion, the trial court rendered an opinion striking Count I of the amended complaint and granted summary judgment (miscalled an accelerated judgment) for the defendants on Count II of the amended complaint. From that ruling, and the court's refusal to grant a rehearing, plaintiffs appeal.

Plaintiffs raise the following issue on appeal to this Court:

Have the plaintiffs set forth sufficient facts to state a cause of action in their amended complaint?

As to Count I of plaintiffs' complaint charging defendants with ordinary negligence, the trial court's dismissal in favor of defendants is upheld because plaintiffs admit there was no consideration paid by plaintiffs to defendants for the recreational use of defendants' premises, M.C.L.A. § 300.201; M.S.A. § 13.1485, and because our Supreme Court has ruled in the case of Heider v. Michigan Sugar Company, 375 Mich. 490, 134 N.W.2d 637 (1965), that the statute is applicable to minors.

We now come to the vital question of whether Count II of plaintiffs' complaint when considered with the depositions and answers to interrogatories previously mentioned, presents sufficient grounds to entitle plaintiffs to a jury trial on plaintiffs claim that defendants were guilty of gross negligence or wilful and wanton misconduct.

2 Restatement Torts, 2d, § 339, p. 197 provides:

'A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

'(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

'(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

'(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

'(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

'(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.'

One of the opinions for reversal of Genesee Merchants Bank & Trust Company v. Payne, 381 Mich. 234, 242--243, 161 N.W.2d 17, 22 (1968), states as follows:

'Since original section 339 was adopted and promulgated by the American Law Institute that section has been broadened beyond 'young' children. Restatement 2d, Torts 2d (1966), advises under § 339 at p. 129:

"This section has been changed from the first Restatement in the following respects:

"1. By eliminating the limitation to 'young' children. There seems now to be general agreement that the age of the child is important only as it bears on whether he does, and can be expected to, realize the risk. There are now a considerable number of decisions in which the rule stated has been applied to children over the age of 13 years:' (Here follow some 4 pages of recent citations).'

Among these citations appear the following:

'17 years * * *

'The question was considered at length in Hoff v. Natural Refining Products Co., 38 N.J.Super. 222, 118 A.2d 714 (1955), with the conclusion that the question is not whether the child is to be classified as 'young,' but whether he is, and may be expected to be, too young to appreciate the risk; there is no fixed age limit.'

The statute M.C.L.A. § 300.201; M.S.A. § 13.1485 permits plaintiffs to recover in this action provided defendants are guilty of gross negligence or wilful and wanton misconduct.

Gross negligence or wilful and wanton misconduct has been defined to exist when the following conditions are present:

'The elements necessary to characterize the injury in the case at bar as wantonly or wilfully inflicted are:

"(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) the omission to use such care and diligence to avert the threatened danger, when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another." Willett v. Smith, 260 Mich. 101, 104, 244 N.W. 246, 247 (1932); McLone v. Bean, 263 Mich. 113, 115, 248 N.W. 566 (1933); Gibbard v. Cursan, 225 Mich. 311, 322, 196 N.W. 398 (1923).

Defendants assert that plaintiffs have failed to state in their pleadings or establish under the answers to the interrogatories and depositions sufficient facts to raise a valid question of gross negligence.

Summary judgment herein was granted by the trial court as to Count II of plaintiffs' complaint under GCR 1963, 117.2. In 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), pp. 360, 362, it is stated under authors' comments:

'In negligence cases, even though there may be no dispute as to the quantitative or physical facts, summary judgment will almost always be inappropriate because the qualitative issue of whether defendant exercised reasonable care will be in dispute and must be left for the jury, unless on the undisputed physical facts a judge would say that a directed verdict would be required--which is to say that there really is no negligence issue for the jury. In such cases summary judgment has been allowed in negligence cases and should be. See 3 Barron and Holtzoff, Federal Practice and Procedure, § 1232.1 (p. 106).

'It has been said that the test is the same as that used in deciding whether to grant a directed verdict or judgment notwithstanding the verdict. See 3 Barron and Holtzoff, Federal Practice and Procedure, § 1234 at p. 133 (numerous cases cited at note 75). If the record as a whole is such that reasonable minds could not differ, there is no issue and summary judgment should be granted. The idea is useful, but it must be applied with appreciation for the fact that the motion for summary judgment is made at a time when there is no evidence, so to speak, and before the record has been made. The motion for summary...