Pigeon v. Radloff

546 N.W.2d 655, 215 Mich. App. 438

• Court: Michigan Court of Appeals
• Decided: February 13, 1996
• Docket: Docket 167638
• Status: Published

Opinions

Murphy, J.

Plaintiff appeals as of right a trial court order granting summary disposition in favor of defendants Scott and Marilyn Radloff (defendants) pursuant to MCR 2.116(C)(8), failure to state a claim upon which relief can be granted. We reverse and remand.

Defendants’ son invited Kenneth Pigeon (plaintiff) to swim in defendants’ aboveground swimming pool at their residence. Plaintiff dove into the pool and sustained neck and spinal cord injuries that rendered him a quadriplegic. Plaintiff was fifteen years old when the accident occurred. Defendants were not home at the time of the accident.

Plaintiff filed suit against defendants as well as the manufacturer and distributor of the pool. The manufacturer and distributor moved for summary disposition, and the trial court granted the motions. Plaintiff does not appeal those orders. The complaint against Scott and Marilyn Radloff alleged negligence in failing to warn plaintiff of the danger posed by the pool and in failing to supervise plaintiff’s use of the pool. Defendants moved for summary disposition pursuant to MCR 2.116(C) (8), and the trial court granted the motion.

The duty a possessor of land owes to those who come upon the land turns on the status of the visitor. Stanley v Town Square Cooperative, 203 Mich App 143, 146; 512 NW2d 51 (1993). Plaintiff was a social guest of defendants and was therefore a licensee. Bradford v Feeback, 149 Mich App 67, 70; 385 NW2d 729 (1986). A landowner’s duty to a licensee depends on whether the licensee is an adult or a child. In Preston v Sleziak, 383 Mich 442, 453; 175 NW2d 759 (1970), the Supréme Court adopted the duty specified in 2 Restatement Torts, 2d, § 342, p 210, as the duty that a landowner owes to an adult licensee:

[T]n this jurisdiction the adult social guest is to be viewed as a licensee.

The duty which occupiers of land owe their licensees is best expressed by 2 Restatement of Torts (2d), § 342, p 210:

"A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,

"(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and

"(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and

"(c) the licensees do not know or have reason to know of the condition and the risk involved.”

However, as this Court noted in Klimek v Drzewiecki, 135 Mich App 115, 119; 352 NW2d 361 (1984), "the rule stated in Preston was expressly limited to adult social guests.” In Klimek, this Court held, that a landowner’s duty to a child social guest is "to exercise reasonable or ordinary care to prevent injury to the child.” Id., 120.

In this case, we must decide whether the trial court properly granted summary disposition with regard to plaintiff’s claims that defendants were negligent in failing to warn plaintiff of the dangers associated with using their aboveground swimming pool and that defendants were negligent in failing to supervise plaintiff’s use of the pool.

We first address plaintiff’s claim that the defendants were negligent in failing to warn him. Relying on Glittenberg v Doughboy Recreational Industries (On Rehearing), 441 Mich 379; 491 NW2d 208 (1992), defendants argue that they had no duty to warn plaintiff of the open and obvious dangers associated with the use of their aboveground swimming pool. Glittenberg was a products liability case involving an aboveground swimming pool. The open -and obvious danger rule has also been applied in a premises liability case involving an adult invitee. Riddle v McLouth Steel Products Corp, 440 Mich 85; 485 NW2d 676 (1992); Novotney v Burger King Corp (On Remand), 198 Mich App 470; 499 NW2d 379 (1993). A panel of this Court recently extended Glittenberg’s open and obvious danger rule to minors in a products liability case, holding that the manufacturer and distributor of an aboveground swimming pool had no duty to warn a minor of the open and obvious dangers associated with the use of such a pool. Mallard v Hoffinger Industries, Inc, 210 Mich App 282; 533 NW2d 1 (1995). Furthermore, another panel of this Court has held that a premises owner owes no duty to warn an adult licensee of an open and obvious danger. DeBoard v Fairwood Villas Condominium Ass’n, 193 Mich App 240; 483 NW2d 422 (1992). While these cases have addressed issues similar to the issue presented in this case, we are aware of no Michigan case that addresses the precise issue in this case: whether summary disposition based on Glittenberg’s open and obvious danger rule is appropriate when a landowner fails to warn a child licensee of an open and obvious danger.

In granting defendants’ motion for summary disposition, the trial court cited the duty owed by a landowner to an adult licensee as stated in Preston, supra. Citing Glittenberg, the trial court ruled that summary disposition was appropriate. The trial court’s opinion accurately stated the duty owed by a landowner to an adult licensee, but failed to reflect that a landowner owes a higher duty to a child licensee. Klimek, supra, 120. The trial court’s failure to recognize the distinction between the duty owed by a landowner to an adult license and the duty owned by a landowner to a child licensee is significant with respect to whether summary disposition based on Glittenberg’s open and obvious danger rule was appropriate. Under the circumstances of this case, we conclude that because plaintiff was a child licensee, the issue whether defendants had a duty to warn plaintiff of the dangers associated with the use of the pool should have been submitted to the jury rather than decided by the trial court as a matter of law.

The comment accompanying 2 Restatement Torts, 2d, § 342, p 210, provides, in relevant part:

b. If the licensees are adults, the fact that the condition is obvious is usually sufficient to apprise them, as fully as the possessor, of the full extent of the risk involved in it.

On the other hand, the possessor should realize that the fact that a dangerous condition is open to the perception of child licensees may not be enough to entitle him to assume that they will appreciate the full extent of the risk involved therein. [Emphasis added.]

The question, then, is whether plaintiff appreciated the full extent of the risk involved in diving into defendants’ swimming pool. We do not believe that there is a specific age at which every child can be said to understand and appreciate the full extent of any particular risk as a matter of law. In Taylor v Mathews, 40 Mich App 74, 91-92; 198 NW2d 843 (1972), this Court stated the following in the context of a fifteen-year-old trespasser who was injured when he dove into an abandoned gravel pit and struck his head on the bottom:

We are constrained to rule, absent a presentation of undisputed facts, that there is no fixed age at which a child does and can be expected to realize any particular risk, as a matter of law.³ We believe the best rule is to judge each case upon its own merits and in the • instant case until the plaintiffs have been given the opportunity to present their case, a proper result cannot be assured.

We believe that this analysis is equally applicable in the context of a child licensee. Accordingly, we hold that when a child licensee is injured by something that is or may be an open and obvious danger to an adult, summary disposition based on Glittenberg’s open and obvious danger rule is inappropriate as a matter of law unless the trial court can say from the undisputed evidentiary facts that all reasonable persons would agree that the child licensee did or could have been expected to realize the risk involved. It is therefore generally a question for the jury to determine whether a child licensee appreciates the full extent of the risk involved with an open and obvious danger. Here, the trial court could not say that all reasonable persons would agree that plaintiff did or could have been expected to realize the full extent of the risks involved in diving into the swimming pool. Accordingly, the trial court improperly granted summary disposition as a matter of law.

We note that this rationale could apply equally to a products liability case involving a child, such as Mallard, supra. Arguably, if a landowner is not. entitled to assume that a child will appreciate the full extent of the risk involved in an open and obvious danger, then a manufacturer should not be entitled to make such an assumption either. The panel in Mallard concluded with little explanation that Glittenberg’s open and obvious danger rule applies to children in a products liability suit. Although we question the holding in Mallard, we believe that a premises case involving a child is distinguishable from a products liability case involving a child because a landowner is closer to the situation and has the opportunity to exercise greater control and oversight over a situation involving children and open and obvious dangers on his property.

We also conclude that summary disposition of plaintiffs claim regarding negligent failure to supervise was inappropriate. In granting summary disposition of this claim, the trial court cited Bradford, supra. In Bradford, a panel of this Court stated, "as a matter of public policy, property owners should not be charged with the duty of supervising and controlling children of guests who have been invited onto the property.” Id., 71-72. We conclude that the trial court’s reliance on Bradford was erroneous because, in this case, plaintiff himself was the guest, and there is no indication from the record that plaintiff’s parents were present to supervise him, which presumably was the rationale for the public-policy holding in Bradford. Accordingly, this case is distinguishable from Bradford.

As previously stated, defendants had a duty to exercise reasonable or ordinary care to prevent injury to plaintiff. Klimek, supra, 120. Here, plaintiff’s complaint was sufficient to state a claim upon which relief can be granted for breach of that duty because defendants’ duty of care may have included the duty to supervise plaintiff’s use of their pool. Furthermore, we note that a jury ordinarily decides questions of reasonable care. Scott v Harper Recreation, Inc, 444 Mich 441, 448; 506 NW2d 857 (1993). We therefore conclude that the jury should have been permitted to determine whether defendants’ failure to supervise plaintiff constituted a breach of their duty to exercise reasonable or ordinary care to prevent injury to plaintiff.

Reversed and remanded.

W- G. Schma, J., concurred.

3 Unless the judge can say from the undisputed evidentiary facts that all reasonable men would agree that the plaintiff, Delmar Taylor, whose age was 15 years at the time of the occurrence did or could have been expected to realize the risk involved in diving into the gravel pit, the issue must be submitted to a jury.