Leep v. McComber

325 N.W.2d 531, 118 Mich. App. 653
CourtMichigan Court of Appeals
DecidedAugust 23, 1982
DocketDocket 56699
StatusPublished
Cited by10 cases

This text of 325 N.W.2d 531 (Leep v. McComber) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leep v. McComber, 325 N.W.2d 531, 118 Mich. App. 653 (Mich. Ct. App. 1982).

Opinions

Cynar, J.

This litigation arises from a personal injury sustained by plaintiff while on the property of defendant. A jury trial commenced on February 10, 1981. On February 11, 1981, the plaintiff having rested his case, the trial judge granted defendant’s motion for a directed verdict, based upon the plaintiff’s failure , to establish grounds for recovery. Plaintiff appeals as of right from this judgment. We affirm.

Plaintiff was born on April 16, 1968. On January 27, 1976, he suffered the injury which is the subject of this suit. Plaintiff and John McComber, defendant’s son, were playmates who walked to and from school together about 99% of the time. Plaintiff often completed his walk home by transit[656]*656ing defendant’s property — specifically by walking down the driveway along one side of defendant’s house. On the day of the injury, plaintiff and John McComber had left school together but had become separated along the way and plaintiff continued walking alone. Plaintiff claims that he got to defendant’s house, heard a noice, looked up, and was struck in the eye by an icicle. The resultant injury necessitated removal of plaintiff’s eye, which was replaced by an artificial eye.

Plaintiff testified at trial that he was walking along the side of the house "without the porch” when the injury occurred. Plaintiff testified that he did not know the height of the icicles but if he jumped, he could not touch the icicles. Herold Reuss, the chief of police for the City of Marshall, who had responded to plaintiff’s screams, seemed to recollect, although he was not positive, that he thought the child told him that he reached up and touched the icicle prior to its falling.

Michael McComber acknowledged that he was aware of plaintiff’s habit of traversing his property when returning home from school. Defendant indicated the date, and stated that at the time the plaintiff was injured, he and his wife were away from their home pursuant to their employment. He assumed that his son and plaintiff walked down the driveway side of his house, although he admits that he did not specifically tell them not to go on the other side. He stated that during the winter the icicles accumulated around his home and all houses on the block. Defendant indicated that icicles accumulate on the porch side of the house but most icicles accumulated on the driveway side of his house. He testified that on certain occasions he would knock down the icicles, either because he figured that they were "too long” or to [657]*657prevent the children from playing with them. He kept a wash broom with a handle 13 feet long which he used to knock down the icicles. Defendant claims that he had previously warned the children not to play around icicles and that he had repeated those warnings as often as three times a month. He testified that the reason he warned the children about icicles was that they might get bumped in the head, though he never anticipated a serious injury. He further testified that he had specifically warned plaintiff about the icicles.

After plaintiff had completed his proofs, defendant moved for a directed verdict, which was granted.

Plaintiff argues that the trial court erred in directing a verdict for the defendant because a private homeowner is liable for natural accumulation of snow or ice upon his own property if he knows or reasonably should know that the presence of such conditions creates a risk of harm to child licensees.

It is easy enough to walk into a maze, however the intricate network often causes confusion before one finally finds the pathway to the exit. So it is with the review of the law relating to the question before us. In Shaw v Wiegartz, 1 Mich App 271, 273; 135 NW2d 565 (1965), Judge Fitzgerald remarked:

"Courts, in their efforts to refrain from imposing undue burdens on injured parties or landowners, have set up categories and categories-within-categories to designate the 'status’ of the injured and the 'knowledge’ of the landowner.”

Since the duty owed by the landowner depends upon the status of the injured party at the time of the injury, it is necessary to ascertain the status of [658]*658plaintiff in the instant case. Defendant acknowledges that the proofs viewed in the most favorable light toward the plaintiff place plaintiff in the status of a bare or mere licensee.

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; 192 NW2d 68 (1971). The Restatement definition is similar: A licensee is a person who is privileged to enter or remain on land only by virtue of the possessor’s consent. 2 Restatement Torts, 2d, § 330, p 72. The words "consent” or "permission” indicate that the possessor is in fact willing that the other shall enter or remain on the land, or that his conduct is such as to give the other reason to believe that he is willing- that he shall enter, if he desires to do so. Id., Comment e. It is reasonable to accept that the plaintiff could be characterized as a licensee by implied permission. In defendant’s view, Michigan jurisprudence recognizes certain classes of licensees, not all of which are entitled to the same degree of care by a landowner. One who is on premises by reason of the acquiescence or sufferance of the landowner, he argues, is considered a "mere” or "bare” licensee. Defendant has the opinion that a landowner’s duty regarding such a mere licensee is considerably less than that duty owed other forms of licensees, notably the social guest. Examination of earlier Michigan cases raises a question for the basis of defendant’s classification.

In Hargreaves v Deacon, 25 Mich 1, 5 (1872), the plaintiff’s decedent, a small child, was killed by falling into a cistern on the premises of the defendants. It had been revealed that the plaintiff was on the property of the defendant landowner not by [659]*659any special permission, but rather by tacit acquiescence.

Under Hargreaves, a landowner owed no duty to such licensees other than to refrain from wantonly or willfully injuring them. Id., 4. This view was reiterated in Formall v Standard Oil, 127 Mich 496, 502; 86 NW 946 (1901): "[T]acit permission is not enough to establish liability for negligent conditions on one’s own premises.” The plight of child licensees was once again considered in Peck v Adomaitis, 256 Mich 207; 239 NW 278 (1931). In that case the defendant left a bonfire unattended on her property even though she was aware that children often went upon the premises. The Court held that there was no legal duty on the part of the defendant to guard the child against the danger of coming into contact with the fire:

"Defendant was under no obligation to trespassers or licensees to keep her premises safe for use of children as a playground.” Id., 210.

The Peck case was cited with approval in Morris v Lewis Mfg Co, 331 Mich 252; 49 NW2d 164; 28 ALR2d 214 (1951). In Morris, the defendants owned a lot on which was situated a partially completed house and sundry piles of building materials. The plaintiffs complaint charged that the defendants knew that the area was being used by neighborhood children as a playground, but took no steps to warn or otherwise to protect the children. The plaintiff’s decedent was killed by falling lumber while playing on defendants’ property.

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Leep v. McComber
325 N.W.2d 531 (Michigan Court of Appeals, 1982)

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Bluebook (online)
325 N.W.2d 531, 118 Mich. App. 653, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leep-v-mccomber-michctapp-1982.