ELAINE HOTCHKIN V RON HUREN
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STATE OF MICHIGAN
COURT OF APPEALS
ELAINE HOTCHKIN,
UNPUBLISHED
June 8, 2001
Plaintiff-Appellee/Cross-Appellant,
v
No. 215338
Oakland Circuit Court
LC No. 95-500535-NO
RON HUREN,
Defendant-Appellant/Cross-
Appellee.
Before: Zahra, P.J., and Smolenski and Gage, JJ.
PER CURIAM.
This personal injury case is before us on remand from the Supreme Court for
consideration as on leave granted. 459 Mich 883 (1998). Defendant appeals from the judgment
for plaintiff and from the imposition of mediation sanctions. Plaintiff cross-appeals from the
finding of comparative negligence and from the reduction of attorney fees. We reverse and
remand for a new trial.
I. Facts
On September 18, 1994, defendant was landscaping his residence and requested plaintiff,
his friend,1 to help move a large rock that weighed 792 pounds. When plaintiff saw the rock she
initially declined to help defendant and instructed defendant that he should ask someone else for
help. Plaintiff eventually agreed to hold a dolly while defendant attempted to strap the rock onto
the dolly. The rock shifted weight, bringing the dolly down and throwing plaintiff to the ground.
Plaintiff suffered a serious back injury and was hospitalized for nine days. Shortly after the
accident, defendant signed a statement admitting to negligence. The statement provided:
I just received an attorney’s notice to sue me. I can tell you that Elaine Hotchkin
did suffer a serious back injury when I used poor judgment and told her to grab
hold of a heavy boulder to help me with my landscaping. The boulder was too
1
While plaintiff was in the hospital recuperating from her injury, defendant and plaintiff became
engaged to be married. The litigants married in August 1995, separated in March 1996, and
divorced in November 1996.
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heavy for me to hold and I should have known it would be too heavy for her to
hold. She heard a pop in her back at the time and consequently spent nine and a
half days in the hospital. She said doctors found three bulging disks and her
sacroiliac hooped [sic] out of place.2
Plaintiff filed suit on July 13, 1995, alleging that defendant was negligent in allowing
plaintiff to participate in defendant’s efforts to move the rock and negligent in his efforts to move
the rock. Plaintiff did not assert a claim of premises liability. The jury returned a verdict in
favor of plaintiff via a special verdict form.3 The verdict form provided:
FORM OF VERDICT
We, the jury, answer the questions submitted as follows:
Elaine Hotchkin was either a volunteer or an invitee:
Q.1: Based on the definitions provided; on 9/18/94, was Elaine Hotchkin a
volunteer helping Mr. Huron [sic]?
A.1: No
(Yes or No)
If your answer is “Yes”, go to question 2; if your answer is “No”, go to question 3.
Q.2: Did Ron Huron’s [sic] conduct amount to willful and wanton misconduct?
A.2: ____________
(Yes or No)
If your answer is “Yes”, go to question 5; if your answer is “No”, do not answer
any further questions.
Q.3: Based on the definitions provided; on 9/18/94, was Elaine Hotchkin an
invitee, helping Mr. Huron [sic] as he specifically directed and requested; and not
primarily for a social visit? (If you find her to have been an invitee, go on to next
question.)
A.3: Yes
(Yes or No)
Q.4: Was Ron Huron [sic] negligent?
A.4: Yes
(Yes or No)
If your answer is “No”, do not answer any further questions.
2
Although defendant acknowledged signing the letter, he claimed it was drafted by plaintiff’s
father and that he signed it only because plaintiff’s family was upset with him. Nonetheless,
defendant testified at trial that the contents of the statement were true.
3
It appears that the verdict form was constructed and stipulated to by the parties.
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If your answer is “Yes”, go to next question.
Q.5: Did Elaine Hotchkin sustain injury?
A.5: Yes
(Yes or No)
If your answer is “No”, do not answer any further questions.
If your answer is “Yes”, go to next question.
Q.6: Was Ron Huron’s [sic] negligence a proximate cause of injury to Elaine
Hotchkin?
A.6: Yes
(Yes or No)
If your answer is “No”, do not answer any further questions.
If your answer is “Yes”, go to next question.
DAMAGES TO THE PRESENT DATE
Q.7. What is the total amount of Elaine Hotchkin’s damages to the present date
for pain and suffering? (9/18/94 through 8/14/97)
A.7: $20,000.00
FUTURE DAMAGES
Q.8: What is the total amount of Elaine Hotchkin’s damages for future pain and
suffering?
A.8: Total damages for future life expectancy of 43.08 years for future pain and
suffering:
$94,345.20 $6 a day
Q.9: What is the total amount of Elaine Hotchkin’s damages for future medical
expenses?
A.9: Total damages for future medical expenses for Elaine Hotchkin’s 43.08
future years: $15,724.20
$1 a day
Q.10: What is the total amount of Elaine Hotchkin’s damages for future loss of
earning capacity?
A.10: $-0COMPARATIVE NEGLIGENE/ALLOCATION OF FAULT
Q.11: Was Elaine Hotchkin negligent?
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A.11: Yes
(Yes or No)
If your answer is “Yes”, go to question No. 12
If your answer is “No,” DO NOT ANSWER ANY FURTHER
QUESTIONS.
Q.12: Was Elaine Hotchkin’s negligence a proximate cause of her injury?
A.12: Yes
(Yes or No)
If your answer is “Yes”, go to question No. 13
If your answer is “No”, do not answer any further questions.
Q.13: Using 100% as the total, and considering the nature of the conduct and the
extent to which each party’s [sic] caused or contributed to Elaine Hotchkin’s
injury, enter the percentage of fault attributable to:
A.13: Ron Huron [sic]
70%
A.13: Elaine Hotchkin
30%
_______________________________
Signature of Foreperson
Please note that the Judge will reduce the total amount of Elaine Hotchkin’s
damages entered in questions (7) through ten (10) by the percentage of fault
attributable to Elaine Hotchkin, if any, entered in question number 13.
Defendant moved for a directed verdict during trial and a motion for judgment
notwithstanding the verdict post trial. Both motions were denied.
II. Analysis
Defendant argues that trial court’s instructions to the jury regarding the definition of an
invitee were erroneous. This Court reviews claims of instructional error de novo. Case v
Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). We review jury instructions in their
entirety to determine whether they fairly and accurately presented the applicable law and the
parties’ theories. Meyer v Center Line, 242 Mich App 560, 566; 619 NW2d 182 (2000). It is
error to instruct a jury on a matter that is not sustained by the evidence or the pleadings.
Murdock v Higgins, 454 Mich 46, 60; 559 NW2d 639 (1997).
In the present case, while plaintiff did not plead a premises liability claim, there was
evidence at trial to support instructions on the issue. Murdock, supra. Defendant requested that
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the trial court instruct the jury on the definition of invitee as provided by SJI2d 19.01.4 The court
instead gave a special instruction requested by plaintiff, which was based on Leveque v Leveque,
41 Mich App 127, 130-131; 199 NW2d 675 (1972). The trial court instructed the jury:
Where a homeowner invites a person to their [sic] home, and the principle [sic]
purpose of the visit is to benefit the homeowner, not a social visit, then the person
invited over is a business invitee.
In Stitt v Holland Abundant Life Fellowship, 462 Mich 591; 614 NW2d 88 (2000), our
Supreme Court clearly set forth what must be shown to establish invitee status in Michigan:
In harmonizing our cases, we conclude that the imposition of additional
expense and effort by the landowner, requiring the landowner to inspect the
premises and make them safe for visitors, must be directly tied to the owner’s
commercial business interests. It is the owner’s desire to foster a commercial
advantage by inviting persons to visit the premises that justifies the imposition of
a higher duty. In short, we conclude that the prospect of pecuniary gain is a sort
of quid pro quo for the higher duty of care owed to invitees. Thus, we hold that
the owner’s reason for inviting persons onto the premises is the primary
consideration when determining the visitor’s status: In order to establish invitee
status, a plaintiff must show that the premises were held open for a commercial
purpose. [Id. at 604.]
In the present case, the trial court’s supplemental instruction, based on Leveque was broader than
the definition of an invitee set forth in Stitt. Applying the Stitt definition of an invitee to the facts
of this case, we conclude that the jury should not have considered whether plaintiff was an
invitee.5 Defendant did not invite plaintiff onto his premises to further his commercial business
interests. Rather, defendant simply solicited help from a friend in moving a large rock to
landscape his residence. Although plaintiff testified that she expected some compensation for
her services, by way of lunch or gas money, the request to move the rock was unconnected to
defendant’s commercial business interests. Therefore, there was no evidence from which invitee
status could be inferred, and plaintiff was, as a matter of law, not an invitee. Id.
4
We do not conclude that the trial court erred by failing to charge the jury with SJI2d 19.01.
That standard instruction is based on 2 Restatement, Torts, 2d, § 332, p 176, which provides for
two forms of invitees; public invitees and business visitors. As discussed infra, our Supreme
Court has established that only business visitors are invitees. Stitt v Holland Abundant Life
Fellowship, 462 Mich 591, 604; 614 NW2d 88 (2000). The Supreme Court has not conferred
invitee status to persons invited to enter public lands.
5
Plaintiff’s reliance on Hottmann v Hottmann, 226 Mich App 171, 175; 572 NW2d 259 (1997)
is unfounded. The comment in Hottmann regarding the definition of an invitee was not essential
to the resolution of that case. Thus, it is obiter dictum and does not have the force of an
adjudication. Edelberg v Leco Corp, 236 Mich App 177, 183; 599 NW2d 785 (1999).
Moreover, the portion of Hottmann relied upon by plaintiff is inconsistent with, and contrary to,
our Supreme Court’s holding in Stitt.
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We conclude that, as a matter of law, plaintiff was a licensee. A landowner’s duty to a
licensee is only to warn of hidden dangers about which the landowner knows or should know.
There is no duty owed to a licensee to make the premises safe. Stitt, supra at 596. Because it
cannot reasonably be argued that moving the large rock involved a hidden danger, judgment for
defendant is appropriate as a matter of law as it relates to any premises liability claim. See
Jackson v Saginaw Co, 458 Mich 141, 146; 580 NW2d 870 (1998). Defendant simply did not
owe plaintiff a duty to warn of the dangers associated with moving a 792 pound rock in the
manner proposed by defendant. We recognize that this case was not pleaded as a premises
liability claim, but rather as a case involving ordinary negligence. However, given that the trial
court provided an erroneous instruction on the definition of invitee and the jury’s verdict was
predicated on its finding that plaintiff was an invitee,6 the jury verdict must be set aside.
On remand, the issue whether plaintiff was a volunteer may not be considered in deciding
whether defendant was negligent because the volunteer doctrine has been abolished by our
Supreme Court. James v Alberts, __ Mich __; __ NW2d __ (Docket No. 114454, issued
5/15/01).7
Given that the jury verdict is vacated and a new trial is necessary, we need not consider
defendant’s remaining issue regarding mediation sanctions or plaintiff’s issues on cross-appeal.
Reversed and remanded. We do not retain jurisdiction.
/s/ Brian K. Zahra
/s/ Michael R. Smolenski
/s/ Hilda R. Gage
6
The verdict form limited the question of defendant’s negligence to whether he was liable under
a premises liability theory. The form provides: “If you find [plaintiff] to have been an invitee, go
on to next question.” The next question being: “Was [defendant] negligent?” We, therefore,
conclude that the jury’s verdict was premised on the finding that plaintiff was an invitee.
7
We note that the statement on the verdict form that: “[Plaintiff] was either a volunteer or an
invitee” was erroneous. Until its recent abrogation in James, the volunteer doctrine provided that
an employer was not liable for the negligent acts of an employee who injured a third person
having the status of a volunteer. Ryder Truck Rental, Inc v Urbane, 228 Mich App 519, 523; 579
NW2d 425 (1998). The volunteer doctrine applied in situations involving ordinary negligence,
and was not limited to claims of premises liability. The term “invitee” as it relates to a
negligence claim, however, only applies to premises liability actions. Consequently, the verdict
form was erroneous insofar as it stated, as a matter of fact, that plaintiff was either a volunteer or
an invitee. Prior to the abrogation of the volunteer doctrine, plaintiff could have been either,
neither or both an invitee and a volunteer.
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