Thomas' Estate v. Consumers Power Co.

Decision Date11 February 1975
Docket NumberDocket No. 18925--6,No. 3,3
PartiesThe ESTATE of Gary M. THOMAS, Deceased, by Aldonna F. Thomas, Administratrix, Plaintiff-Appellant, v. CONSUMERS POWER COMPANY, a Michigan Corporation, and Saginaw County Agricultural Society, a Michigan Corporation, jointly and severally, Defendants-Appellees. The ESTATE of James J. THOMAS, Deceased, by Helen H. Thomas, Administratrix, Plaintiff-Appellant, v. CONSUMERS POWER COMPANY, a Michigan Corporation, and Saginaw County Agricultural Society, a Michigan Corporation, jointly and severally, Defendants-Appellees
CourtCourt of Appeal of Michigan — District of US

Peter F. Cicinelli, Cicinelli, Mossner, Majoros, Harrigan & Alexander, Saginaw, for plaintiff-appellant.

Webster Cook, Smith & Brooker, P. C., Saginaw, for Consumers Power.

John D. Dougherty, Plunkett Cooney, Rutt & Peacock, Detroit, for Bombardier, Ltd.

William C. Hoffman, Chaklos, Jungerheld, Hoffman & O'Neill, Saginaw, for Saginaw County.

Before QUINN, P.J., and V. J. BRENNAN and CARLAND, * JJ.

CARLAND, Judge.

Actions are here brought alleging the wrongful deaths of Gary and James J. Thomas on January 19, 1971, arising as a result of the negligence of defendants. The deaths occurred between the hours of 9 p.m. and 9:30 p.m. at a time when James J. Thomas, are 30, was operating a 1971 SkiDoo snowmobile on property owned by the Saginaw County Agricultural Society. Gary Thomas, age 24, was a passenger on the vehicle driven by his brother.

The property, commonly referred to as the 'fairgrounds', was located in the City of Saginaw and plaintiffs allege that for many years the owners had permitted snowmobiles to be operated on the premises as a recreational activity.

Certain utility poles had been located upon the property by Consumers Power Company under an easement granted to it by the feeholder. One of these poles was anchored to the ground through the use of three 'guy wires'. The shortest of these guy wires extended from the top of the pole to a point some 31 feet from the base of the pole. This guy wire was equipped with no shield, guard or other protective device.

It is alleged that the guy wires were not visible during the nighttime because as stated in plaintiff's complaint 'they blended in with the darkness and with the surroundings and background' and were 'completely camouflaged by the conditions then and there existing'.

In the course of the operation of the snowmobile, it was driven between the pole and the guy wire, striking the guy wire and resulting in the death of both the driver and his passenger.

The Agricultural Society was charged with negligence in encouraging and permitting the use of its property for snowmobiling at a time when it was aware of the presence of hazardous and dangerous obstructions (poles and guy wires) upon its property and in failing to warn the public of the existence of these hazards and in failing to properly light the premises. It was alleged that Consumers was negligent in erecting poles in places where recreational vehicles were known to travel, in failing to properly guard or shield the guy wires, in failing to mark the presence of the guy wires by the use of reflective or illuminating devices and in failing to place fences around the poles and guy wires.

By an amended complaint it is alleged that the acts and omissions of these two defendants constituted gross negligence or wilful and wanton misconduct.

After answers to the complaints were filed and before the complaints were amended, Consumers filed a motion for accelerated or summary judgment alleging that no cause of action existed in favor of the plaintiffs by virtue of the provisions of M.C.L.A. § 300.201; M.S.A. § 13.1485, on the grounds that plaintiffs were upon the land of another without having paid a valuable consideration for the purpose of out-door recreational use. The statute reads as follows:

'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.'

Upon the filing of the amended complaint in each case, Consumers filed an amended motion for summary judgment incorporating by reference the allegations of the original motion and went on to allege that plaintiffs had not stated any facts which would support a claim for gross negligence or wilful and wanton misconduct.

No formal written motion was filed by the Agricultural Society but it orally joined in Consumers' motion. After argument and the filing of briefs, the trial court entered an 'order granting defendants Consumers Power Company and Saginaw County Agricultural Society's motion for summary judgment on Count I (ordinary negligence) and on Count II (gross negligence or wilful and wanton misconduct)'. On November 28, 1973, the trial court issued an 'amended order granting summary judgment and final judgment' as to defendants Saginaw County Agricultural Society and Consumers Power Company only. (Bombardier Ltd. had been joined as a party defendant under a products liability claim, which claim was not affected by the judgment entered.) Plaintiffs appeal as a matter of right.

It is first claimed by the plaintiffs that the trial court committed reversible error in holding that M.C.L.A. § 300.201; M.S.A. § 13.485 could be invoked by defendant Consumers Power Company. This issue is wholly one of statutory interpretation, towit: Is it true as plaintiffs argue that the statute does not apply to an easement holder because he has no right in the property as an 'owner, tenant or lessee'? Plaintiffs contend that such limitation of the force and effect of the statute is necessary because 'the statute in question here, being in derogation of the common law, must be interpreted strictly and narrowly and should not be stretched beyond its plain and unambiguous meaning'.

Thus the plaintiffs argue, without proving, that the statute is in derogation of the common law. However, as the trial judge noted in his opinion, this statute does not change the common-law duty of owners and occupiers of property owed to those who come upon such properly as mere licensees, as were the plaintiffs in this case. The act is merely a codification of tort principles which are universally recognized in common-law jurisdictions. 'A licensee, as distinguished from an invitee, in one who enters another's land because a personal benefit will be derived by so doing; and while there, his presence is merely tolerated.' Cox v. Hayes, 34 Mich.App. 527, 192 N.W.2d 68 (1971).

The act in question has the undoubted purpose of furthering recreational activities in Michigan by making certain areas available for such purposes while clearly restating the common-law liability of owners to those who come gratuitously upon their land. Under these circumstances and to carry out the undoubted intention of the legislature, it would seem the statute should be liberally construed. Courts should lean toward that construction which will give the statute force and validity, not to that construction which would nullify it. Thomas Canning Co. v. Southern Pacific Co., 219 Mich. 388, 400, 189 N.W. 210 (1922); Pigorsh v. Fahner, 386 Mich. 508, 514, 194 N.W.2d 343 (1972). The statute neither restricts nor adds to the common-law rights of the plaintiffs.

It was held specifically in Peaslee v. Saginaw County Drain Commissioner, 365 Mich. 338, 344, 112 N.W.2d 562 (1961), that an easement is an interest in land and must be recorded with the register of deeds in the same manner as a fee simple estate if it is to give notice to future purchasers. Likewise, in Ladd v. Teichman, 359 Mich. 587, 597, 103 N.W.2d 338, 343 (1960), it was determined 'an easement is a property right in real estate'. Therefore, upon the acquisition of the easement here involved, Consumers became the owner of an interest in land.

Plaintiffs' contention that Consumers may not invoke the statute's protection because it could not accept the 'valuable consideration' mentioned in the statute is an inference which does not follow from the premise because the invocation of the statute is not specifically based upon an ability to accept the consideration. By this argument the plaintiffs attempt to convert the consideration clause which actually establishes their own cause of action into a proviso clause against Consumers' immunity under the statute. Such a construction is completely unwarranted. Clearwater Township v. Board of Supervisors of Kalkaska County, 187 Nich. 516, 153 N.W. 824 (1915).

We therefore hold that as holder of an easement across the land in question Consumers Power Company was an 'owner of property' within the meaning of the statute.

Plaintiffs next maintain that 'snowmobiling' is not 'a similar outdoor recreational use' within the meaning of the statute. Again plaintiffs urge a strict construction of the statute and would have us define the word similar as meaning 'exactly alike or identical'. To do so would be to do violence not only to the wording of the statute but to the intent of the Legislature. Such a definition would make the words 'or other similar outdoor recreational use' absolutely meaningless. We must conclude that the Legislature intended these words to have some meaning. No other recreational activity can be exactly alike or identical to the specific activities set forth in the statute. After naming certain specific recreational activities, the Legislature then used a broad general term in order to cover any recreational activity which might be imposed on the lands of another. We believe that 'similar' is...

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