R CELESTIA BURNETT V BERNADINE BRUNER
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STATE OF MICHIGAN
COURT OF APPEALS
R. CELESTIA BURNETT,
FOR PUBLICATION
September 7, 2001
9:00 a.m.
Plaintiff-Appellee,
v
No. 220039
Oakland Circuit Court
LC No. 94-485724-NO
BERNADINE BRUNER,
Defendant-Appellant.
Updated Copy
November 26, 2001
Before: K. F. Kelly, P.J., and Smolenski and Meter, JJ.
SMOLENSKI, J.
Defendant appeals as of right from a judgment entered after a jury verdict in this
premises liability action. Defendant argues that the circuit court failed to properly instruct the
jury regarding the duty of care owed by a landowner to a licensee. Further, defendant argues that
the trial court erroneously denied her motion for judgment notwithstanding the verdict because
plaintiff failed to prove the essential elements of her premises liability claim. We reverse and
remand for a new trial before a properly instructed jury.
I. Factual and Procedural Background
This case arises out of plaintiff 's slip and fall at defendant's home in December 1993.
Plaintiff and her husband traveled from Florida to Michigan to visit their daughter, Martha
Gordon. Defendant's son Michael, who had been dating Martha for several years, invited
plaintiff and her husband to defendant's home. Upon arrival at defendant's home, plaintiff
followed Michael across the snow-covered lawn toward defendant's front door. Plaintiff stepped
on an unseen depression or elevation beneath the snow, causing her to fall and break her hip.
Plaintiff filed a premises liability action against defendant. The circuit court denied
defendant's motion for summary disposition, and the case proceeded to a jury trial. After the
close of proofs, the jury awarded plaintiff $200,000 in damages, allocating eighty percent
comparative fault to defendant and twenty percent comparative fault to plaintiff. The circuit
court subsequently denied defendant's motions for a new trial and for judgment notwithstanding
the verdict. Defendant appeals as of right.
II. Duty of Care Owed to Licensees
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Defendant first contends that the circuit court failed to correctly determine the duty of
care owed by a landowner to a licensee. As our Supreme Court stated in Riddle v McLouth Steel
Products Corp, 440 Mich 85, 95-96; 485 NW2d 676 (1992):
The threshold issue of the duty of care in negligence actions must be
decided by the trial court as a matter of law. In other words, the court determines
the circumstances that must exist in order for a defendant's duty to arise. . . .
. . . A negligence action may only be maintained if a legal duty exists
which requires the defendant to conform to a particular standard of conduct in
order to protect others against unreasonable risks of harm. [Citation omitted.]
In premises liability cases, the duty owed by the landowner is determined by the
plaintiff 's status at the time of injury. In Stitt v Holland Abundant Life Fellowship, 462 Mich
591, 596; 614 NW2d 88 (2000),1 our Supreme Court explained:
Historically, Michigan has recognized three common-law categories for
persons who enter upon the land or premises of another: (1) trespasser, (2)
licensee, or (3) invitee. Michigan has not abandoned these common-law
classifications. Each of these categories corresponds to a different standard of
care that is owed to those injured on the owner's premises. Thus, a landowner's
duty to a visitor depends on that visitor's status. [Citations omitted.]
In the instant case, the parties agree that plaintiff was a licensee on defendant's property
at the time of her injury. The parties also agree that Preston v Sleziak, 383 Mich 442; 175 NW2d
759 (1970), overruled in part in Stitt, supra, sets forth the duty of care owed by a landowner to a
licensee.2 However, the parties hotly dispute the proper interpretation of Preston. Defendant
argues that a licensee must accept the premises in the condition maintained by the landowner for
his own use. Further, defendant argues that a licensee is not entitled to expect that the premises
will be prepared for his reception or that precautions will be taken for his safety. Plaintiff rejects
defendant's interpretation, arguing that a landowner owes a duty to his licensees either to remove
dangerous conditions from the premises or to provide adequate warnings about those conditions.
In Preston, supra at 453, our Supreme Court adopted 2 Restatement Torts, 2d, § 342, p
210, as the best expression of the duty owed by a landowner to his licensees. Section 342 of the
Restatement provides:
1
The Stitt Court issued its decision after the parties submitted briefs in the present case.
2
In Stitt, supra at 602-603, the Court partially overruled Preston, to the extent that Preston
adopted the definition of "public invitee" set forth in 2 Restatement Torts, 2d, § 332, p 176.
However, the Stitt Court did not directly address Preston's holding regarding the duties owed by
landowners to their licensees. We conclude that this portion of Preston remains a binding
interpretation of Michigan law. Indeed, the Stitt Court expressly approved the Preston holding
with regard to the duty owed by a landowner to his licensees. Stitt, supra at 596.
-2-
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.
On its face, subsection 342(b) appears to support plaintiff 's argument that a landowner
owes licensees a duty to repair dangerous conditions in preparation for a licensee's visit.
However, defendant points to another portion of the Preston holding to support her argument
that a licensee must accept the premises in the condition maintained by the landowner for his
own use. While discussing the distinction between the duty owed to a licensee and the duty
owed to an invitee, the Preston Court quoted 2 Restatement Torts, 2d, § 330, comment h, p 175:
"The use of the premises is extended to [the licensee] merely as a personal
favor to him. The explanation usually given by the courts for the classification of
social guests as licensees is that there is a common understanding that the guest is
expected to take the premises as the possessor himself uses them, and does not
expect and is not entitled to expect that they will be prepared for his reception, or
that precautions will be taken for his safety, in any manner in which the possessor
does not prepare or take precautions for his own safety, or that of the members of
his family." [Preston, supra at 451 (emphasis added).]
This language apparently contradicts the language of subsection 342(b), which subjects a
landowner to liability if "he fails to exercise reasonable care to make the condition safe." In
order to resolve this apparent conflict, we turn to the commentary that accompanies § 342. First,
we note that comment d, p 211, provides:
Inspection. A possessor of land owes to a licensee no duty to prepare a
safe place for the licensee's reception or to inspect the land to discover possible
or even probable dangers.
A licensee's privilege to enter is a gift, and the licensee, as the recipient
thereof, is entitled to expect nothing more than a disclosure of the conditions
which he will meet if he acts upon the license and enters, in so far as those
conditions are known to the giver of the privilege.
A member of the possessor's family or his social guest is also entitled at
most to knowledge of such dangers as the possessor knows or has reason to know.
If the possessor knows of the existence of a condition, but has no reason to know
that it is dangerous, then he is under no duty to make the disclosure. [Emphasis
added.]
-3-
In addition, comment e, p 212, provides, in pertinent part:
The liability of a possessor of land who invites or permits licensees to
enter his land is not based upon a duty to maintain it in safe condition. It is based
upon his duty to disclose to them the risk which they will encounter if they accept
his invitation or permission.
Finally, comment f, p 212, provides, in pertinent part:
Preparations for licensee's safety. A licensee, in whose visit the possessor
has no [economic] interest, is not entitled to expect that special preparations will
be made for his safety or that the possessor will warn him of conditions which are
perceptible by his senses, or the existence of which can be inferred from facts
within the licensee's knowledge. The possessor is entitled to expect that the
licensee, realizing all this, will be on the alert to discover conditions which
involve risk to him. [Emphasis added.]
A fair reading of the above commentary convinces us that the Restatement was neither
intended nor designed to imply a duty owed by a landowner to his licensees to repair or to
inspect his property. Rather, the landowner simply owes the licensee a duty to warn of
unreasonably dangerous conditions, when the licensee neither knows nor has reason to know of
the condition and the risk involved. We believe that this interpretation of § 342 comports with
the reasoning utilized by our Supreme Court in Stitt, supra at 596:
A "licensee" is a person who is privileged to enter the land of another by
virtue of the possessor's consent. A landowner owes a licensee a duty only to
warn the licensee of any hidden dangers the owner knows or has reason to know
of, if the licensee does not know or have reason to know of the dangers involved.
The landowner owes no duty of inspection or affirmative care to make the
premises safe for the licensee's visit. Typically, social guests are licensees who
assume the ordinary risks associated with their visit. [Citations omitted, emphasis
added.]
Further, both the Stitt and Preston Courts approved the following jury instructions read
by the trial judge in Preston3:
"There is no duty on the part of the host to reconstruct or improve the
premises for the purpose of making his house more convenient or more safe for
those accepting his hospitality, gratuitously extended. The guest assumes the
ordinary risks which attach to the premises.
3
In Stitt, supra at 603, the Court concluded that the trial court in Preston had "properly
instructed the jury on the duty owed by a host to his social guests, licensees." In Preston, supra
at 453-454, the Court likewise concluded that "the trial court's charge to the jury fairly instructed
them of the duty which a host owes to his social guest."
-4-
Now, the reason for this rule is that a host merely offers his premises for
enjoyment by his guests with the same security that the host and the members of
his family who reside with him have in that particular home." [Preston, supra at
446-447.]
On the basis of our Supreme Court's decisions in Stitt and Preston, along with the
Restatement commentary, we conclude that a landowner owes his licensees only a duty to warn.
A landowner does not owe his licensees any duty to inspect or to repair his premises. With these
principles in mind, we turn to the facts of the instant case.
According to the testimony of Martha Gordon, who had visited defendant's residence on
numerous occasions, the front yard was very rough, containing rocks, pine trees, and only sparse
grass. Defendant conceded that she maintained her front yard in a "natural" or "rustic" condition.
Further, defendant explained that no formal, hard-surfaced walkway connected the driveway and
the home. Rather, defendant's family and her guests were required to cross the front yard in
order to enter the home. According to Ms. Gordon, excavation work performed on defendant's
property the previous fall had created tire tracks and ruts in the front yard. In addition, Ms.
Gordon testified that defendant and her family often parked vehicles in that area, contributing to
the creation of tire tracks and ruts. In December 1993, on the day in question, snow covered
defendant's front yard, obscuring any tire tracks or ruts that existed there.4
In her second amended complaint, plaintiff alleged that she stepped on an unseen ridge or
elevation in defendant's front yard that was hidden beneath the snow, causing her to fall and
break her hip.5 Plaintiff argues that defendant should have taken action to ensure that her front
yard was a safe place for her social guests. Specifically, plaintiff argues that defendant should
have filled the tire tracks that had formed in her front yard or that defendant should have created
a safer pathway from her driveway to her front door. We reject plaintiff 's characterization of
defendant's legal duties to her licensees. Defendant was not required to repair the condition of
her premises in advance of plaintiff 's visit. Defendant was not required to fill any tire tracks,
ruts, or depressions in her front yard. She was not required to remove rocks or tree roots in order
to create a smooth walking surface. She was not required to install a hard-surfaced walkway
4
In her appeal brief, defendant briefly mentions this Court's decision in Altairi v Alhaj, 235 Mich
App 626; 599 NW2d 537 (1999). In that case, this Court held that "the natural accumulation
doctrine does not apply to the licensor-licensee context where the injury occurred on the
possessor's private property." Id. at 638. Rather, the natural accumulation doctrine insulates
only "municipalities, and those private possessors whose land abuts municipal sidewalks, from
injuries caused by the natural accumulation of ice and snow on municipal property." Id. at 637.
In the present case, plaintiff does not argue that the natural accumulation of ice and snow in
defendant's front yard caused her injury. Instead, she argues that a ridge or elevation beneath the
snow caused her to fall.
5
Plaintiff 's allegations about her fall changed over time. In her original complaint, plaintiff
alleged that she slipped and fell on ice and snow in defendant's driveway. In her first amended
complaint, plaintiff alleged that she stepped onto a hidden ridge or elevation of the driveway,
causing her to slip and fall. In her second amended complaint, plaintiff alleged that she stepped
onto a hidden ridge or elevation in the pathway between the driveway and the house.
-5-
between her driveway and front door. Defendant was simply required to warn her licensees of
dangerous conditions that the licensees would not be likely to discover while visiting defendant's
property.
III. Jury Instructions
Defendant contends that the circuit court failed to properly instruct the jury regarding the
duty of care owed by a property owner to a licensee. We exercise review de novo over claims of
instructional error. Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). In doing
so, we examine the jury instructions as a whole to determine whether the trial court committed
error requiring reversal. Id. We will reverse for instructional error only where failure to do so
would be inconsistent with substantial justice. Id.; MCR 2.613(A). When the standard jury
instructions do not adequately cover an area of law, the trial court is obligated to read
supplemental instructions requested by one of the parties, as long as those instructions properly
inform the jury on the applicable law. Sherrard v Stevens, 176 Mich App 650, 655; 440 NW2d 2
(1988). Jury instructions "should include all the elements of the plaintiff 's claims and should not
omit material issues, defenses, or theories if the evidence supports them." Case, supra at 6.
Defendant requested that the circuit court read the following special jury instruction:
Plaintiff is expected to take the premises as defendant herself uses them
and cannot expect and is not entitled to expect that they will be prepared for her
reception, or that precautions will be taken for her safety, in any manner in which
the defendant does not prepare or take precautions for her own safety or that of
the members of her family.
The circuit court refused to read defendant's requested special instruction. Instead, the
circuit court read the following instruction, modeled after SJI2d 19.06:
Now, a possessor of premises is libel [sic] for physical harm caused [to]
plaintiff Celest Burnett by a condition on the premises if and only if the possessor
knew or should have know[n] that the condition . . . involved . . . an unreasonable
risk [of] harm to the plaintiff Celest Burnett and should have expected that she
would not discover or realize the danger and possessor failed to exercise
reasonable care to make the condition safe, or to warn the plaintiff Mrs. Burnett of
the condition and the risk involved and the plaintiff 's [sic] Celest Burnett did not
know or have reason to know that [sic] of the condition and the risk involved.
The instruction given by the trial court adequately conveyed to the jury that defendant
owed plaintiff a duty to warn of dangerous conditions. However, it did not inform the jury that
defendant owed plaintiff neither a duty of inspection nor a duty of affirmative care to make her
premises safe for plaintiff 's visit. Therefore, we conclude that the circuit court erred in refusing
to read defendant's requested special instruction. As instructed, the jury could have based its
verdict on one of two conclusions: (1) defendant "failed to exercise reasonable care to make the
condition safe," or (2) defendant failed to warn plaintiff of an unreasonable risk of harm that
plaintiff should not be expected to discover or realize. Because it is impossible to determine
with any confidence which of these two options the jury chose, and because a verdict for plaintiff
-6-
based on the first option would be contrary to law, substantial justice requires reversal in this
case. Case, supra at 6.
IV. Knowledge of the Allegedly Dangerous Condition
Defendant next contends that the circuit court erroneously denied her motion for
judgment notwithstanding the verdict. We review the trial evidence de novo to determine if the
circuit court clearly erred in denying the defendant's motion for judgment notwithstanding the
verdict. Badalamenti v William Beaumont Hosp-Troy, 237 Mich App 278, 284; 602 NW2d 854
(1999). We must view all legitimate inferences from the evidence in the light most favorable to
plaintiff. Id. An entry of judgment notwithstanding the verdict is appropriate only if the
evidence so viewed fails to establish a claim as a matter of law. Id.
Defendant argues that she neither knew nor should have known about the condition of her
front yard. Further, defendant argues that any tire tracks or ruts that existed in her front yard did
not present an unreasonable risk of harm that a licensee would not discover or realize.
Therefore, defendant contends that the trial court should have granted her motion for judgment
notwithstanding the verdict. We disagree. Martha Gordon testified that excavation work
performed in defendant's front yard during defendant's occupancy of the premises had left the
ground in "really rough shape" and that numerous tire tracks and ruts existed in the yard,
including at least one that was four to five inches in depth. All witnesses agreed that snow
covered the front yard on the date of plaintiff 's fall. Therefore, any rough areas, tire tracks or
ruts that did exist would have been obscured from plaintiff 's view.6 Viewing this evidence in the
light most favorable to plaintiff, we conclude that a reasonable jury could have determined: (1)
defendant knew or should have known about an unreasonably dangerous condition existing in
her front yard, (2) defendant knew or should have known that, given the snowfall common
during a Michigan winter, licensees visiting her property would not discover or realize the
hidden danger, and (3) plaintiff neither knew nor should have known about the dangerous
condition or the risk involved. We conclude that the trial court properly denied plaintiff 's
motion for judgment notwithstanding the verdict.
V. Conclusion
In summary, we hold that a landowner owes his licensee a duty only to warn of hidden
dangers the landowner knows or has reason to know of, and only if the licensee does not know or
have reason to know of the dangers involved. The landowner does not owe the licensee a duty to
inspect or to repair in order to make the premises safe for the licensee's visit. We conclude that
the instructions read to the jury in the present case failed to accurately convey defendant's legal
6
In this case, it is clear that plaintiff lacked actual knowledge of any trip and fall hazard hidden
beneath the snow in defendant's front yard. Plaintiff first visited defendant's property one week
before her accident. At that time, there was no snow on the ground and the tire tracks or ruts of
which plaintiff complains could have been visible. However, plaintiff did not leave her vehicle.
Therefore, we can only assume that plaintiff did not see the condition of the property during her
previous visit to defendant's home.
-7-
duties to plaintiff and that substantial justice requires reversal in this case. Reversed and
remanded for a new trial before a properly instructed jury. We do not retain jurisdiction.
/s/ Michael R. Smolenski
/s/ Kirsten Frank Kelly
/s/ Patrick M. Meter
-8-
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