Wymer v. Holmes

Decision Date24 September 1987
Docket NumberDocket Nos. 76806,77588
PartiesKenneth D. WYMER, Personal Representative of the Estate of Jennifer Isabel Wymer, Deceased, Plaintiff-Appellee, v. James HOLMES and Coleen Holmes, Jointly and Severally, Defendants-Appellants. Greg YAHRLING, Plaintiff-Appellant, v. BELLE LAKE ASSOCIATION, INC., a dissolved Michigan corporation, its officers, directors and shareholders, et al., Defendants-Appellees. 429 Mich. 66, 412 N.W.2d 213
CourtMichigan Supreme Court

David R. Skinner & Associates, P.C. by David R. Skinner, John L. Wildeboer, Bay City, for plaintiff-appellee Kenneth D. Wymer.

Braun, Kendrick, Finkbeiner, Schafer & Murphy, Frank M. Quinn, Bay City, for defendants-appellants James and Coleen Holmes.

Michigan Trial Lawyers Ass'n, Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen and Bartnick by Richard E. Shaw, Detroit, amicus curiae of the Michigan Trial Lawyers Assn.

Dykema, Gossett, Spencer, Goodnow & Trigg, by Robert N. Hammond, Candace L. Sorensen, Grand Rapids, amicus curiae brief of Michigan Defense Trial Counsel.

Googasian, Hopkins, Forhan & Hohauser by Michael S. Hohauser, George A. Googasian Ralph Sosin, Birmingham, for defendants Sidney Weinburger, Weinburger Builders, Inc., Huntington Inv. Co.

Bloomfield Hills, for plaintiff Greg Yahrling.

Sidney J. Suo, Birmingham, for defendants Deakin and Mallett.

Claude Romain, Southfield, co-counsel for defendants Deakin.

James T. Mellon, Troy, for defendants Korduba, Runyon and Standlick.

Thomas D. Rinehart, Mount Clemens, for defendants Calin and Sanders.

Donald O. Hibbs, Mount Clemens, for defendants Grueling, Villerot, Termini, Fitek, DeCarlo, Dragovich, Burke and Saglimbene.

William D. Kahn, Royal Oak, for defendants Jewell.

John A. Ashton, Plymouth, for defendants Myszenski, Sendek, Iagnemma, Patroske, Svendor, Dehne, Saussele, Fahim, Harrell, Nolan, Stelmaszek, Fowler, Bruck, Payne, Zichichi, Szubielski, Tanner, Prescott, Robinson, Robinson, Marsh, Sarti, Frankenstein, Horvath, Dobat (King), Jackson, Ingrao, Bach, Schaller, Divirgilio, Sirotti, DeHagen, Aksamit, Beluetz, Mack, Zarzycki, Merola, Harper, Larson, Gorsuch, Wolf, Kanan, Cloutier, Polchowski, Zellinger and Brontkowski.

Simeon R. Orlowski, Farmington Hills, for defendants Wesner, Klingehofer, Vandevelde, Gendron, Kury, Walker, Patterson, Beste, Bellaire, Hojnacki, Wilseck Builders, Malek, Livingston, Wernis, Blinke, Cius, Harten, Brawner, Damico, Klatt, Lang, Valentine, Coakley, Seward, Gornick, Binkowski and Greene.

James R. Daoust, Mount Clemens, for defendants Kontich, Bechard, Jagels, Rivers, Allen, Dimercurio and David.

Paul B. Hynes, Detroit, for defendants Grannis.

Jeffery W. Doan, Detroit, for defendants Grosfield, Gamester, Orlowski, Watson and Foukes.

John Nolan, for defendant Chime Lake Assn.

William J. Lynch, Detroit, for defendants Price and Sanders.

John B. Lizza, Detroit, for defendants Hultman and Demick.

James A. D'Agostini, for defendant El Camino Homes.

David R. Kratze, Southfield, for defendant Elaine King.

Michael A. Gunderson, Detroit, for defendants Genord and Smith.

William V. Wendt, Mount Clemens, for defendants Musselman.

John Sopt, Detroit, for James R. and Rose V. Palmer.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. by Deanna E. Hazen, Detroit, for defendants-appellees Gerald and Irene Sanders and Robert and Swetlana Price.

Glime, Daoust, Wilds, Rusing & LeDuc by James R. Daoust, Mt. Clemens, for defendants-appellees Kontich, Bechard, Jagels, Rivers, Allen, Dimercurio and David.

Gromek, Bendure & Thomas by Daniel J. Wright, Neal C. Villhauer, Detroit, of counsel for defendants-appellees Kontich, Bechard, Jagels, Rivers, Allen, Dimercurio and David.

ARCHER, Justice.

We granted leave to determine the applicability of Michigan's recreational land use statute, where the plaintiffs in these cases were social guests invited to the respective defendant-landowners' residential homes to engage in recreation other than the activities which resulted in their injuries. In both cases, the plaintiffs were either injured or died while swimming at the property of the residential landowners.

The true issue is whether the property on which the injuries occurred was of the type intended to be covered by the recreational land use act. We hold that the recreational use act is not applicable to the two cases before the Court.

I FACTS

We offer in part the pertinent facts as succinctly stated by the Court of Appeals in:

A. WYMER v. HOLMES

"Linda Wymer and her six-year-old daughter Jennifer were visiting the home of Linda's sister and brother-in-law, the defendants, during Memorial Day weekend, 1981. Pam Orlando, a friend of defendants, was also visiting with her three daughters, ages 3, 5 and 7. Jennifer Wymer, defendants' three-year-old daughter and seven-year-old son, and Orlando's three children played in and around defendants' home while the adults were inside. Linda Wymer had examined the pond which defendants had constructed in their backyard, but she was unable to see the bottom of it. She believed it was shallow. There were no dividers or markers indicating the depth of the pond. Linda Wymer and defendants allowed the children to go wading in the pond. The children were told to stay in the shallow section near the bank. Defendant Coleen Holmes told Jennifer Wymer three times to stay near the bank. In addition, the children were told to wade, not to swim. After catching some polliwogs with a bucket, the children left the water and started playing near the home.

"Defendants had originally planned on grilling hot dogs in their backyard next to the pond. However, the children were hungry, so defendants decided to cook the hot dogs inside the house and eat them outside at the picnic table next to the pond. The decedent asked for and received permission to go wading in the pond with the other children. Defendant Coleen Holmes was in the kitchen preparing the hot dogs. Defendant James Holmes sat at the kitchen table with his back to the windows overlooking the pond. Linda Wymer sat at the kitchen table, facing the windows overlooking the pond. Approximately five minutes later, Linda Wymer and defendants were taking the hot dogs outside to the picnic table, when defendants' seven-year-old son asked where Jennifer was. Defendants and Linda Wymer searched the house and then looked outside. James Holmes dove into the pond while Linda Wymer and the codefendant went up the driveway to search for the child. James Holmes found the child in the shallow part of the pond, where the water was only approximately four to five feet deep. He administered artificial respiration while Linda Wymer rubbed the child's extremities. However, the child never regained consciousness. She died the following day." 144 Mich.App. 192, 194-195, 375 N.W.2d 384 (1985).

Plaintiff Wymer later sued in the Tuscola Circuit Court. In a three-count complaint, the plaintiff made allegations of negligence, attractive nuisance, and failure to warn of the pond's claimed dangers. The complaint contained no allegations of gross negligence or wanton misconduct on the part of the defendants.

Prior to trial, the defendants filed a motion for summary judgment on the ground that his claim was barred by the restrictions imposed by the recreational use act inasmuch as no consideration had been paid for the decedent's outdoor recreational use of the land. The trial judge denied defendant's motion, ruling that because plaintiff was a social guest, and therefore a licensee, the question of defendant's liability as it relates to the duty to warn was appropriate for the jury. 1 Plaintiff's major thrust The jury returned a verdict of no cause of action. Plaintiff appealed in the Court of Appeals on issues unrelated to the issue presently before this Court. Defendants cross-appealed as to the recreational land use act issue. In a per curiam opinion, the Court of Appeals reversed 2 and remanded the case for a new trial on the basis of its resolution of the unrelated issues. The Court rejected defendants' cross-appeal, and held that the recreational land use act was inapplicable to social invitees because such application would not serve the legislative intent to promote tourism or open up private lands to public use. 144 Mich.App. 199, 375 N.W.2d 384.

at trial was defendant's failure to warn of a drop in the pond. The jury instructions related to negligence, conduct required for the safety of a child, a landowner's duty to licensees, and damages. No mention was made of the recreational land use act.

B. YAHRLING v. BELLE LAKE ASS'N,

INC.

As undisputed by the parties, on August 24, 1980, plaintiff Yahrling had been invited to a birthday party at the home of Mr. and Mrs. Grannis, lot 50 of the Belle Lake Estates Subdivision. Yahrling was later invited to the Brontkowski home, lot 47 of the subdivision. The Brontkowski property is continuous with Private Park "A" of the Belle Lake Estates Subdivision. The lake is a man-made lake and part of Private Park A. Upon arriving at the lake, one of the swimmers who was familiar with the lake ran down a hill at the edge of the lake, made a shallow dive, and called to Yahrling to join him. Having decided to swim, Yahrling ran downhill to the water's edge, where he saw several telephone poles which had been laid lengthwise to prevent erosion. Yahrling found himself unable to stop due to momentum and was forced to step on the logs which were not level with the surface before entering the water. Thereafter, Yahrling's momentum caused his legs to flip over his head, and he landed on the back of his neck in fourteen inches of water, sustaining a cervical fracture which has left him completely paralyzed from the shoulders down.

The lake wherein plaintiff was injured was owned by the homeowners of the entire subdivision. The surrounding individual lot owners have largely developed the...

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