Anderson v. Brown Brothers, Inc.

237 N.W.2d 528, 65 Mich. App. 409, 1975 Mich. App. LEXIS 975

• Court: Michigan Court of Appeals
• Decided: November 12, 1975
• Docket: Docket 19023
• Status: Published

Opinions

D. E. Holbrook, Jr., J.

June 10, 1968, Donald Anderson, aged 14, and a group of friends went swimming in the lake of a gravel pit adjacent to the City of Lansing’s Scott Woods Park. When they arrived at the lake there were approximately 50 or 60 people swimming and diving around the lake. They noticed there was a diving board and a raft in the lake. From appearances, they assumed it was part of the park since trails led from the park to the lake and they did not notice any fence or warning signs.

After swimming and diving in one part of the lake for awhile, Donald Anderson and his friends moved to a new area approximately 25 feet away when the area of the lake they were swimming in became crowded. At that point the bank rose approximately 10 feet out of the water. First, they checked the water depth around the bank at which they intended to dive to make sure that it was safe for diving. Discovering that the bottom dropped off sharply about four feet from the bank, Donald Anderson asked one of his friends to mark the drop-off by standing at the edge. He then climbed the bank in preparation for a dive. As he began his dive the bank crumbled beneath him causing him to lose the spring in his jump, and he fell head first into the shallow water.

As a result, Donald Anderson fractured several vertebrae and is almost totally paralyzed from the neck down. He suffers nearly constant physical distress but with the assistance of his family and friends he has been able to attend some college classes although he is virtually helpless as far as taking care of his personal needs.

Construction of the lake began in 1966 when Cheney and Rahfeldt, then owners of the property in question, contracted with Brown Brothers for the removal of gravel. The City of Lansing sought an injunction claiming injury to a public street. By a court order dated December 6, 1966, Cheney and Rahfeldt conveyed the property to the city. The order granted Cheney and Rahfeldt the right to contract for the removal of gravel from the property and to create a man-made lake for the City of Lansing within five years. Paragraph 8 of that order provided:

"IT IS FURTHER ORDERED, that Glen T. Cheney and Albert W. Rahfeldt and their contractor shall erect and maintain a farm type fence of a type to make climbing difficult around the excavation and to erect a gate, all under specifications determined by the Parks Department of the City of Lansing. This fence shall be completed and installed before excavation is done below water level at any point or any water collects in any excavated point on the property.”

The fence was erected but according to testimony, by June, 1968, the fence had broken down. There was also testimony that the gate was not always kept closed, even when there was no excavation work being done. Neighbors testified that they had complained to all the defendants concerning the use of the lake as a swimming area. However, no remedial action was taken before the accident.

The plaintiffs filed a three count complaint against the defendants. Count one alleged nuisance; count two alleged gross negligence or wilful and wanton misconduct; and count three alleged simple negligence. The City of Lansing and Brown Brothers, Inc., moved for summary judgment on counts one and three on the authority of MCLA 300.201; MSA 13.1485.¹ The City of Lansing also moved for summary judgment on count two on the grounds of governmental immunity. The trial court granted the motion on counts one and three as to all defendants, but denied the City of Lansing’s motion for summary judgment on count two because of Maki v East Tawas, 18 Mich App 109; 170 NW2d 530 (1969), affirmed, 385 Mich 151; 188 NW2d 593 (1971).

The parties proceeded to trial on the gross negligence or wilful and wanton misconduct count in September, 1973, after waiving jury trial. At the close of plaintiff’s proofs the trial court granted defendants’ motion for a judgment of no cause of action on count two. The trial court found no evidence of gross negligence or wilful and wanton misconduct. It concluded that defendants were not required to foresee that Donald Anderson would attempt to dive off a bank that would crumble underneath him. It also found that failure by the defendants to keep others out of the gravel pit was not so reckless as to constitute wilful and wanton misconduct. Plaintiffs appeal as of right.

Plaintiffs argue that the trial court erred in granting defendants’ motion for summary judgment on the básis of MCLA 300.201; MSA 13.1485, as the statute was not intended to apply to this type of case. Alternatively, plaintiffs argue that the statute is unconstitutional as a violation of due process, equal protection, and article 4, § 24 of the Michigan Constitution. Given our disposition of the first issue we do not reach this issue.

Plaintiffs also argue that the trial court erred in awarding defendants a judgment of no cause of action on the gross negligence count. From my review of the record, however, I cannot say that the trial judge’s findings of fact and conclusions of law were clearly erroneous. I therefore would affirm the judgment of no cause of action on the gross negligence count. GCR 1963, 517.1. Ruemenapp v National Food Stores, Inc, 385 Mich 648; 189 NW2d 330 (1971).

I.

Plaintiffs first argue that they are not within the recreational property owners immunity statute, MCLA 300.201; MSA 13.1485, as the acts that caused the injury, i.e., diving and swimming, are not within the statute. In Taylor v Mathews, 40 Mich App 74; 198 NW2d 843 (1972), it was merely assumed that diving was within the statute since they affirmed the trial court’s application of the statute. The trial court, however, in its opinion granting the motions for summary judgment in the present case, very logically stated the reason for including "swimming” and "diving” within the words "similar outdoor recreational use”.

"It is the opinion of this court that swimming is the type of recreation that is a natural extension of many of the activities specifically enumerated in the statute and, in the absence of any reason to the contrary, should fall into the category of a 'similar outdoor recreational’ activity. To construe the statute otherwise would be to say that a man who wades out in another’s lake to fish has no cause of action for injuries, but he is not barred from suit if he changes his mind and goes swimming, and is injured. Equally untenable would be to bar from recovery a person who sustains injuries while he is merely sightseeing or hiking across the land of another and yet to allow the same trespasser to get into court if he should, in the course of his hike, pause for a swim, or if he should purposely go onto Defendants’ property and go swimming, and sustain injuries.” (Citation omitted.)

However, to say that the activity of Donald Anderson is within the statute does not necessarily make the statute applicable. Defendants also must come within the statute.

II.

It is undisputed that the City of Lansing is the legal owner of the land on which the gravel pit is located. While MCLA 691.1407; MSA 3.996(107) (1964 PA 170, § 7), gave the City of Lansing complete immunity from its negligence in governmental functions, such was declared unconstitutional in Maki v East Tawas, supra, because of a violation of article 4, §24, of the Michigan Constitution.²

Because Maki v East Tawas, supra, eliminated the defense of governmental immunity, the City of Lansing must rely on the recreational property owners immunity statute. Because both statutes deal with a similar subject matter, i.e., immunity from tort liability, it is the duty of this Court to read these two statutes together to reach a consistent result. Rathbun v Michigan, 284 Mich 521, 545; 280 NW 35 (1938), People v Martin, 59 Mich App 471; 229 NW2d 809 (1975). In reading statutes together, as a general rule, it is necessary to look at the state of the law when the second statute was enacted. Lakehead Pipeline Co v Dehn, 340 Mich 25, 134; 64 NW2d 903 (1954), Brown v Department of State, 45 Mich App 322, 325; 206 NW2d 481 (1973). However, in this case it is necessary to look to the state of the law when the first statute was passed since the second statute, the governmental immunity statute, was enacted as a response to the overruling of common law governmental immunity.³ See Brown v Department of State, supra.

When the recreational property owners immunity statute was passed in 1953, there was still common law immunity for municipal corporations from tort liability. Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961). Although the doctrine was under attack at the time in academic⁴ and judicial⁵ circles, the doctrine had continued vitality in 1953. Martinson v Alpena, 328 Mich 595; 44 NW2d 148 (1950).

It is also a rule of statutory construction that this Court will not presume that the Legislature intended to do a useless act. Klopfenstein v Rohlfing, 356 Mich 197, 202; 96 NW2d 782 (1959), Davis v Imlay Township Board, 7 Mich App 231, 236; 151 NW2d 370 (1967). The recreational property owners immunity statute grants an exception for gross negligence or wilful and wanton misconduct. However, both the common law and the governmental immunity statute recognize no exceptions as regards outdoor recreational areas. Because governmental immunity is more inclusive than the recreational property owners immunity we hold that the Legislature intended that only governmental immunity apply to property owned by a municipal corporation used in a governmental function.⁶

Shortly before the Legislature amended the recreational property owners immunity statute to put it in the form that is relevant to this case, the Legislature enacted the 1964 governmental immunity statute. Thus at both times before this case arose that the Legislature considered the recreational property owners immunity statute there was governmental immunity. The Legislature did not consider the recreational property owners immunity statute as a back-up for governmental immunity. In 1953 the common law rule of governmental immunity was still alive and in 1964 there was a new statute on the subject. It was not within the power of the Legislature to foresee the 1969 and 1971 Maki v East Tawas, supra, decisions holding the governmental immunity law unconstitutional since it is presumed that the Legislature passes only constitutional acts. Clarence Township v Dickinson, 151 Mich 270, 272; 115 NW 57 (1908). It is a mere fortuity that the City of Lansing cannot invoke governmental immunity in this case.

III.

Since the recreational property owners immunity statute was not designed or intended to apply to lands of a municipality while the municipality is engaged in a governmental function I conceive no valid reason why a tenant or lessee of lands owned by a municipality should enjoy any greater benefits from the statute than those enjoyed by the municipality.

Hence, I would hold that a tenant or lessee of lands owned and used by a municipality while engaged in a governmental function enjoys no greater protection from the recreational property owners immunity statute than that enjoyed by the municipality, which is none.

It therefore becomes unnecessary to determine whether the remaining parties defendant are in fact tenants or lessees since, under the circumstances, they do not fall within the protection afforded by the statute. The court therefore erred in granting summary judgment on the nuisance and negligence counts as to all defendants.

I would affirm in part and reverse in part. I would remand for trial on plaintiffs’ counts one and three as to all defendants. I vote to award no costs since neither plaintiffs or defendants have prevailed in full. Further, a public question and interpretation of a statute are involved.

1 MCLA 300.201; MSA 13.1485 provided before a 1974 amendment: "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.)

2 A valid governmental immunity statute was enacted in 1970, This does not affect the outcome of this litigation however. Campbell v Detroit, 51 Mich App 34; 214 NW2d 337 (1973).

3 While Williams r Detroit, supra, voided common law governmental immunity, it did state that the Legislature had the right to enact an immunity statute. This the Legislature did with 1964 PA 170. The amendment to the recreational property owners immunity statute was 1964 PA 199. Donellon v County of Wayne, 2 Mich App 576, 579, n 2; 141 NW2d 387 (1966).

4 Smith, Municipal Tort Liability, 48 Mich L Rev 41 (1949), Seasongood, Municipal Corporations: Objections to the Governmental or Proprietary Tests, 22 Va L Rev 910 (1936), see, Anderson, Claims Against States, 7 Vand L Rev 234 (1954), Synposium, Governmental Tort Liability, 9 Law & Contemp Prob 179-370 (1942), Borchard, Governmental Responsibility in Tort, 36 Yale L J 1039 (1927).

5 Although judges had not in 1953 made a frontal assault on governmental immunity, the proprietary-governmental function dichotomy, was in full flower. Judges tended to stretch definition of what a proprietary function was in order to allow defendants to recover. Accord, Matthews v Detroit, 291 Mich 161; 289 NW 115 (1939).

6 I do not express an opinion on whether the Legislature intended MCLA 300.201; MSA 13.1485 to apply when a municipal corporation is a defendant over land on which it is exercising a proprietary function.