Thone v. Nicholson

• Decision Date: 06 July 1978
• Docket Number: Docket No. 77-3102
• Citation: 84 Mich.App. 538,269 N.W.2d 665
• Parties: Roger THONE, Plaintiff-Appellant, v. Elmer J. NICHOLSON and Sima A. Nicholson, husband and wife, and Chicago and North Western Transportation Company, a Foreign Corporation, Defendants- Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 665

269 N.W.2d 665

84 Mich.App. 538

Roger THONE, Plaintiff-Appellant, v. Elmer J. NICHOLSON and Sima A. Nicholson, husband and wife and Chicago and North Western Transportation Company, a Foreign Corporation Defendants- Appellees.

Docket No. 77-3102.

Court of Appeals of Michigan.

July 6, 1978.

Released for Publication Sept. 18, 1978.

Green, Renner, Weisse, Rettig, Rademacher & Clark by George C. Renner, Escanaba, for plaintiff-appellant.

Mikkola & Hiltunen by Don R. Hiltunen, Hancock, for Nicholson.

Clancy, Hansen, Davidson, Chilman & Graybill by Walter L. Hansen, Ishpeming, for Chicago.

Before V. J. BRENNAN, P. J., and R. B. BURNS and KELLY, JJ.

R. B. BURNS, Judge.

Plaintiff had summary judgment entered against him for failure to state a claim upon which relief could be granted, GCR 1963, 117.2(1), and appeals. We affirm.

On review of plaintiff's amended complaint under GCR 1963, 117.2(1), we accept as true all of plaintiff's factual allegations as well as any conclusions which can reasonably be drawn therefrom, Van Liere v. State Highway Department, 59 Mich.App. 133, 137, 229 N.W.2d 369, 371 (1975), but disregard mere conclusional statements of liability, Binder v. Consumers Power Co., 77 Mich.App. 343, 346-347, 258 N.W.2d 221, 224 (1977). Our task is to determine whether plaintiff's claim "is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery". Crowther v. Ross Chemical and Manufacturing Co., 42 Mich.App. 426, 431, 202 N.W.2d 577, 580 (1972).

Plaintiff's amended complaint alleged that he was injured when the motorcycle he was riding along an abandoned railroad right-of-way struck the bank of a creek which intersected the right-of-way. Defendants Nicholson, owners of the property, allegedly knew the property was used by the general public for recreational purposes, including motorcycling, and were aware that the intersection of the right-of-way with the creek constituted an inherently hazardous condition dangerous to the users of the property, but despite that knowledge failed to erect a bridge over the creek or erect signals, signs or warnings. Defendant Chicago and North Western Transportation Company, a predecessor in title to the property, allegedly created the hazardous condition by removing barricades at the creek when it sold the property.

The trial court granted defendants' motions for summary judgment because it concluded none of the defendants had a duty to erect a bridge or post warnings for plaintiff's convenience, and because plaintiff had not alleged facts indicating wilful and wanton misconduct by any of the defendants. M.C.L. § 300.201; M.S.A. § 13.1485.

The statute upon which the trial court relied provides:

"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, motorcycling, snowmobiling, or any other 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." M.C.L. § 300.201; M.S.A. § 13.1485.

Since defendant Chicago and North Western Transportation Company is not alleged to be an owner, tenant, or lessee of the property, the statute is inapplicable to a determination of its liability. At common law, as a general rule liability for an injury due to defective premises rests upon the person who has control and possession of the premises. Nezworski v. Mazanec, 301 Mich. 43, 56, 2 N.W.2d 912, 917 (1942), Dombrowski v. Gorecki, 291 Mich. 678, 681, 289 N.W. 293, 294 (1939), Paisley v. United Parcel Service, Inc., 17 Mich.App. 672, 170 N.W.2d 283 (1969). For that reason the vendor of real property is generally permitted to step out of the liability picture and shift responsibility for the condition of the property to the purchaser. Prosser, Torts (4th ed), § 64, p. 412. Since there is no allegation that defendant Chicago and North Western Transportation Company retained control and possession of the property, it was entitled to summary judgment.

Because defendants Nicholson are alleged to be the owners of the property, their liability is governed by the statute. There is no allegation that plaintiff paid a valuable consideration for the purpose of motorcycling on the property, so that defendants Nicholson are not liable unless they caused plaintiff's injuries through gross negligence or wilful and wanton misconduct.

Several cases have defined and applied the terms gross negligence and wilful and wanton misconduct, as used in the instant statute. Thomas v. Consumers Power Co., 58 Mich.App. 486, 228 N.W.2d 786 (1975), Aff'd in part, rev'd in part 394 Mich. 459, 231 N.W.2d 653 (1975), Taylor v. Mathews, 40 Mich.App. 74, 198 N.W.2d 843 (1972), Magerowski v. Standard Oil Co., 274 F.Supp. 246 (W.D.Mich., 1967). In Thomas this Court said the purpose of the statute was to open up and make available for public recreational use vast areas of vacant but private lands. We asserted that the method by which the goal was to be achieved was to codify the common-law liability of landowners to those who come gratuitously upon the land, and that the statute neither expanded nor restricted the common-law duty of landowners owed to licensees. 58 Mich.App. at 491-496, 228 N.W.2d at 789-791. In reliance upon Thomas we have looked to the common law for guidance as to the duty of a landowner to warn of hazardous conditions of the land. Our review indicates that Thomas, Taylor and Magerowski did not adequately distinguish the concepts of common-law premises liability, negligence, gross negligence, and wilful and wanton misconduct.

The common-law duty of a landowner to one who comes upon his land turns upon the status of the visitor.

"A licensee has been defined as a 'person who enters on or uses another's premises with the express or implied permission of the owner or person in control thereof * * * '." Cox v. Hayes, 34 Mich.App. 527, 532, 192 N.W.2d 68, 70-71 (1971).

Permission may be implied where the owner acquiesces in the known, customary use of property by the public. Polston v. S. S. Kresge Co., 324 Mich. 575, 578, 37 N.W.2d 638, 640 (1949), Sandstrom v. Minneapolis, S. P. & S. S. M. R. Co., 198 Mich. 99, 107, 164 N.W. 472, 474 (1917). Since plaintiff has alleged that defendants knew their property was used by the general public for recreational purposes, we infer that plaintiff was a licensee.

Early Michigan cases indicated that a landowner owed no duty to licensees to refrain from negligent acts generally, but instead would be liable only for reckless and wilful infliction of injury, Habina v. Twin City General Electric Co., 150 Mich. 41, 48, 113 N.W. 586, 588 (1907), or, inconsistently, for injuries inflicted through active, but not passive, negligence, see, E. g., Polston v. S. S. Kresge Co., supra, 324 Mich. at 580-581, 37 N.W.2d at 641, Schmidt v. Michigan Coal & Mining Co., 159 Mich. 308, 311-312, 123 N.W. 1122, 1123 (1909), Hargreaves v. Deacon, 25 Mich. 1, 4 (1872).

Subsequent cases, however, require that landowners refrain from negligent acts generally:

"(D)efendants' duty to plaintiff required they exercise reasonable care to disclose to her dangerous defects which were known to them and were likely to be undiscovered by plaintiff. (2) Restatement of Torts, § 342." Miller v. Miller, 373 Mich. 519, 524-525, 129 N.W.2d 885, 887 (1964).

" 'A possessor of land is subject to liability for bodily harm caused by a natural or artificial condition thereon to others who are privileged to enter the land for a public or private purpose, irrespective of his consent, if he

" '(a) knows that they are upon the land or are likely to enter it in the exercise of their privilege, and

" '(b) knows of the condition and realizes that it involves an unreasonable risk to them and has no reason to believe that they will discover the condition or realize the risk, and

" '(c) fails to exercise reasonable care

" '(i) to make the condition reasonably safe or

" '(ii) to warn them of the condition and the risk involved therein.' " Carlisi v. Marysville, 373 Mich. 198, 208-209, 128 N.W.2d 477, 483 (1964), quoting Restatement Torts, § 345.

Distinguish this negligence standard of conduct from the following definitions of gross negligence and wilful and wanton misconduct.

There are two primary sources of definition for the terms gross negligence and wilful and wanton misconduct: common law, and cases interpreting the now defunct guest passenger statute, M.C.L. § 257.401; M.S.A. § 9.2101, see Manistee Bank & Trust Co. v. McGowan, 394 Mich. 655, 232 N.W.2d 636 (1975).

This Court has summarized the meaning of the terms under the guest passenger statute thusly:

"Although the statute posits these terms in the disjunctive, the Supreme Court has held them to be synonymous. Thayer v. Thayer, 286 Mich. 273, 282 N.W. 145 (1938), Pawlicki v. Faulkerson, 285 Mich. 141, 280 N.W. 141 (1938). Liability is imposed when the driver's conduct 'manifests a high degree of danger, a manifest probability that harm will result therefrom, and an utter disregard of the probable consequences'. Stevens v. Stevens, 355 Mich. 363, 371, 94 N.W.2d 858, 863 (1959). A plaintiff must additionally show that the driver, through his conduct, exhibited 'an affirmatively reckless state of mind with intent to depart from careful driving'. Brooks v. Haack, 374 Mich. 261, 265, 132 N.W.2d 13, 15 (1965), Hendershott v. Rhein, 61 Mich.App. 83, 232 N.W.2d 312 (1975)." Hoag v. Paul C. Chapman & Sons, Inc., 62 Mich.App. 290, 296-297, 233 N.W.2d 530, 533 (1975).

At common law, gross negligence and wilful and wanton misconduct are distinct concepts, although the terms have often been misused as synonyms. LaCroix v. Grand Trunk W. R. Co., 379 Mich....