SANDRA HENDIN V OAKLAND COUNTY PARKS
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STATE OF MICHIGAN
COURT OF APPEALS
SANDRA HENDIN and JAMES HENDIN,
husband and wife,
UNPUBLISHED
February 1, 2002
Plaintiffs-Appellants/CrossAppellees,
v
No. 213614
Oakland Circuit Court
LC No. 96-513563-NO
OAKLAND COUNTY PARKS,
Defendant-Appellee/CrossAppellant.
Before: Whitbeck, P.J., and Fitzgerald and Markey, JJ.
PER CURIAM.
Plaintiffs Sandra and James Hendin1 appeal by right the trial court’s orders of judgment
entered against them. Defendant Oakland County Parks cross appeals the trial court’s order
rejecting its governmental immunity claim. We affirm.
I. The Motion For Summary Disposition
A. Overview: The Definitional Problem
At issue in this case is whether Hendin can hold Oakland County Parks liable for the
injuries she sustained when she fell off a stage it had rented to the Oakland School District. The
Oakland School District used the stage for square dancing during a picnic it held on its own
grounds. Hendin was square dancing when she fell from the stage. The chief analytical problem
in this case relates to whether Hendin sued for premises liability or products liability.
According to the record, Hendin she fell off a stage that Oakland County Parks2 owned.
Although the precise relationship is not clear, it appears from the pleadings that Oakland County
1
Plaintiff James Hendin’s claim of loss of consortium is derivative and, therefore, we refer to
plaintiff Sandra Hendin as “Hendin.”
2
The record in this case refers to “Oakland County Parks,” which may simply be a shortened
name for the Oakland County Parks Commission.
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Parks is part of the governmental apparatus of Oakland County; however, Oakland County is not
a defendant here. Oakland County Parks asserts that it purchased the stage from its manufacturer
Century, Inc., in 1988. Yet Century is not a defendant here.3 Hendin sustained her injury
because she was learning line dancing at a picnic the Oakland School District sponsored and held
on its premises. But the School District is not a defendant here.
After Hendin sustained her injury, she brought a lawsuit alleging (1) defective design of
the stage, (2) failure to warn, and (3) vicarious liability for instructor negligence.
B. The Defective Design Theory
Because her first claim, the defective design claim, rests on a products liability theory,
Hendin must establish that Oakland County Parks was legally responsible for the alleged
defective design as the owner or lessor of the stage even though it did not manufacture or sell the
stage. Her remedy for the defective design of the stage would otherwise appear to be solely
against Century because Oakland County Parks did not originally design the stage or alter its
design once it purchased the stage.
C. The Duty To Warn Theory
(1) Overview
Hendin’s second claim was a duty to warn claim and it was on this claim that the trial
court granted summary disposition. Duty to warn can be both a products liability theory4 and a
premises liability theory.5
(2) Duty To Warn In Premises Liability Cases
In premises liability cases, duty to warn is part of a trilogy of theories that can allow
recovery. As Justice Cavanagh wrote:
[I]nvitors may be held liable for an invitee’s injuries that result from a failure to
warn of a hazardous condition or from the “negligent maintenance of the premises
or defects in the physical structure of the building.”[6]
Here, the School District, without dispute, owned the premises where the June 8, 1995, picnic
was held. However, the School District is not a defendant here and is apparently a completely
3
Hendin did sue Century. What became of that suit is not clear. It is, however, clear that
Century is not involved in the claims being considered in this appeal.
4
See Glittenberg v Doughboy Recreational Industries (On Rehearing), 441 Mich 379; 491
NW2d 208 (1992).
5
See Riddle v McLouth Steel, 440 Mich 85; 485 NW2d 676 (1992).
6
Bertrand v Alan Ford, Inc, 449 Mich 606, 610; 537 NW2d 185 (1995), quoting Williams v
Cunningham Drug Stores, Inc, 429 Mich 495, 499-500; 418 NW2d 381 (1988).
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separate entity from Oakland County Parks. Therefore, absent some other conceptual construct,
we fail to see how Hendin can recover against Oakland Country Parks under a premises liability
theory. Her remedy for the failure to warn of the condition of the premises would appear to be
solely against the School District, the owner of the premises.
(3) Duty To Warn In Products Liability Cases
As noted above, there can be a duty to warn in a products liability case. As Justice Boyle
put it in Glittenberg:
In the products context, duty to warn has been described as an exception to
the general rule of nonrescue, imposing an obligation on sellers to transmit safetyrelated information when they know or should know that a buyer or user is
unaware of that information.[7]
Rather clearly, however, this duty to warn reposes in the manufacturer or seller of the product.
Oakland County Parks was neither the manufacturer nor the seller of the stage. Therefore,
Hendin’s remedy for breach of the a duty to warn in the products liability context would appear
to be solely against Century, the manufacturer/seller of the stage.
D. The Vicarious Liability Theory
Hendin’s third claim was for vicarious liability for instructor negligence. The trial court
denied the motion for summary disposition on this claim. Hendin abandoned this in the trial
court and has failed to present it as an issue in this appeal.8
E. The Position Of The Parties Below
The initial question, therefore, remains: is this a premises liability case or is it a products
liability case? If it is a premises liability case, then Hendin’s sole remedy for the failure to warn
of the condition of the premises is against the School District. If it is a products liability case,
then Hendin’s sole remedy for a failure to warn of an allegedly dangerous design defect in the
stage is against Century.
The parties were not, at the trial court level, terribly clear regarding what kind of a case
this is. At the hearing on the motion for summary disposition, counsel for Oakland Country
Parks stated:
Now, with regard to the Glittenberg/Riddle issue, plaintiff seems to take
the position of Riddle as the applicable case law here not Glittenberg because
we’re not the owner of this stage.[9] Well Riddle only applies to a condition on
7
Glittenberg, supra at 386.
8
See MCR 7.212(C)(5).
9
This is either a typographical error or a misstatement. As far as we can tell, Oakland County
Parks is the owner of the stage.
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land. It’s clear that this stage is a mobile unit. It’s not a condition on land. We’re
more akin to the defendants in the Glittenberg case in which that case dealt with
the duties of the seller, with regard to a simple product and a product that has
open and obvious hazards and dangers. We’re basically bringing this product out
to the public at large. It’s not a condition on land.[10]
Counsel for Hendin did little to remedy this confusion, responding:
And, finally, to address the open and obvious basis for Mr. Potter’s
additional motion for summary disposition, we’ve cited the Court to Riddle.
We’ve cited the Court to the subsequent case of Bertram v. Ford, which the
Michigan Supreme Court put to rest the issue. The owner premises [sic] has a
duty to warn of even an obvious danger where the owner of those premises knew
or should have knew [sic] of the unreasonable risk of harm being created. The
County could have purchased side rails. They were available for purchase. They
chose not to purchase them. They chose not to put any warning of any kind on the
exposed perimeter of this stage and now coming [sic] in and saying they should be
treated as though they are the manufacturer, the seller. They are the owners of this
stage and the other equipment being rented by the Parks Commission.[11]
Thus, Oakland County Parks, citing Glittenberg, apparently considered this a products liability
case, while Hendin, citing Riddle, Bertrand, and the duty of a premises owner, apparently
considered it a premises liability case.
F. The Trial Court’s Ruling
The trial court denied the motion for summary disposition with respect to Oakland
County Parks’ governmental immunity defense, holding that renting equipment “under these
circumstances where the event was not open to the general public is not a governmental
function.” The trial court did not, however, make a specific ruling on the nature of the case:
Next, the defendant argues the alleged defect was open and obvious
relying on Glittenberg v Doboy [sic], 441 Mich 379. Plaintiff asserts that
Glittenberg is inapplicable to the defendant in that the defendant was neither the
manufacturer nor seller of the mobile stage at issue.
Plaintiff argues the proper doctrine is open and obvious. This Court notes,
however, that the doctrine applies to land owners. The Court finds that the facts
in this case are more closely analogous to those in Glittenberg and that the
defendant was not the end user of the product but provided the product for use by
others.
10
Emphasis added.
11
Presumably this means that Oakland County Parks was the owner of the stage and it was
rented “by the Parks Commission” to the School District.
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Under either doctrine, however, the test for determining whether there is a
duty to warn is whether the alleged dangerous condition is apparent or visible
upon casual inspection.
In this case, the alleged defect of lack of side rails was open and obvious
to an ordinary user and plaintiff’s position upon casual inspection. Therefore, as
to the duty to warn claim, the defendant’s motion is granted.
Thus, the trial court appeared to favor Oakland County Parks’ theory that this was a products
liability case. However, the trial court then ruled that the open and obvious defense applied
“under either doctrine” and granted summary disposition concerning Hendin’s duty to warn
claim. The trial court then turned to the “balance” of Hendin’s claims of negligence:
As to the balance of plaintiff’s claims of negligence, the defendant’s
motion is denied. The defendant has not demonstrated that no duty is owed to the
plaintiff nor that no duty was breached. Whether the defendant should have
attached side rails or otherwise provided some sort of device to prevent injury to
the plaintiff is a question of fact for the jury.
The “balance of” Hendin’s “claims of negligence” was her claim for defective design. Thus, the
only claim that could have been tried was Hendin’s claim for defective design, a products
liability claim. Under the trial court’s decision, it appears that no aspect of a premises liability
claim could have been tried, regardless of whether it was for “failure to warn of a hazardous
condition,” “negligent maintenance of the premises” or “defects in the physical structure of the
building.”
G. Hendin’s Position On Appeal
Hendin claims on appeal that the trial court erred in granting summary disposition for
Oakland County Parks on her “claim of a failure to warn.” In making this argument, Hendin
relies on the analysis articulated in Bertrand v Alan Ford, Inc.12 Bertrand requires a plaintiff to
demonstrate that the activity or condition on the land causing injury was not open and obvious.13
If the activity or condition was open and obvious, then the plaintiff may not recover without
demonstrating that, despite the open and obvious nature of the harmful condition or activity, or
the invitee’s knowledge of it, “the risk of harm remains unreasonable.”14
Hendin’s primary argument in this appeal, however, focuses on the factual circumstances
surrounding the use of the stage with particular emphasis on the edge of the stage. She argues in
her brief that being on a stage is an unusual activity and that the “edge of a stage presents a
hazard that is ‘unusual . . . because of [its] character, location, or surrounding circumstances.’”15
12
Bertrand, supra at 616-617.
13
Id. at 610-611.
14
Id. at 611, citing 62 Am Jur 2d Premises Liability, §§ 156-158, pp 523-527.
15
Hendin takes this phrase from Bertrand, supra at 616.
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In her reply brief, she comments that both experts “recommended use of ‘toe strips’ to alert a
person on the stage to the proximity of the edge, much as a baseball outfielder is alerted by the
warning track to the proximity of the fence.” Thus, by her reliance on Bertrand and her emphasis
on the edge of the stage, Hendin appears to be arguing duty to warn in the context of a premises
liability case. Yet, her argument, in a somewhat vague fashion, actually tends to veer toward the
two other causes of action related to premises liability recognized in Bertrand: negligent
maintenance and defective structure, sometimes collectively referred to as a “duty to make
safe.”16
However, Hendin appears to recognize the basic problem with a premises liability
argument: Oakland Country Parks was not the owner of the premises. Hendin therefore states in
her reply brief that “[t]here is no reason why premises liability concepts like possession of the
premises should be imported into the present case – defendant’s liability in Glittenberg did not
turn on whether defendant had been in possession of the premises.” Thus, without actually
saying so, Hendin apparently now sees this as a products liability case even though she advanced
a premises liability theory in the trial court.
H. Duty To Warn Conclusion
The duty to warn aspect of this case presents both definitional and conceptual problems.
By paying close attention to the language of Hendin’s arguments on appeal, we can resolve the
definitional problem by reaching the conclusion that this is actually a products liability case.
Ignoring for the sake of analysis that Oakland County Parks appears to be the wrong party to
defend against this claim, we note that in the products liability context, the law imposes no duty
to warn when a danger posed by a simple product is open and obvious.17 There is no question
from the record that “the danger [of falling off the stage because it lacked guardrails or other
features was] fully apparent, widely known, commonly recognized, and anticipated by the
ordinary user.”18 Thus, objectively, Oakland Parks had no obligation to warn Hendin of the
danger of falling of the stage, regardless of whether such a warning were toe strips or might take
another form.
II. The Motion For Directed Verdict
A. The Trial Court’s Ruling
Hendin’s remaining claims of defective design and vicarious liability went to trial. After
four days of trial, the trial court entertained Oakland County Parks’ motion for directed verdict.
The trial court concluded that Oakland County Parks was a lessor of a chattel, the stage. The trial
court then granted the motion for directed verdict, stating:
16
Id. at 610.
17
See Resteiner v Sturm, Ruger, & Co, Inc, 223 Mich App 374, ; 566 NW2d 53 (1997).
18
Id.
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The lessor of the chattel to be used by the lessee for a particular purpose
known to the lessor impliably [sic] warns of the reasonable suitability of the
chattel to the lessees known intended use of it. Jones versus Keech [sic]at 388
Mich 164.
There has been no evidence that there was an obligation to inquire any
further than the defendant did with regard to the intended use of the state.
Taking the evidence in the light most favorable to the plaintiff and
assuming that there was such a duty there’s no evidence of a breach. There’s no
evidence that the stage was not fit for line dancing. Even plaintiff’s human
factor’s expert testified that it was fit for line dancing under certain circumstances.
The court in Webb versus Traveler’s Insurance Company, 98 Mich. App.
157, relying on Jones held that it was to conclude that where a bailor leases a
machine to a bailee and injury results liability cannot attach to the bailor or as a
result of an improper use over which the bailor has no control.
Likewise, it would be absurd to impose a legal obligation on the defendant
in this case to inquire regarding the type of dancing, the number of the participants
and the instructors.
Therefore, this court finds that the plaintiff has not presented evidence of a
breach, therefore, I am granting the motion for directed verdict. I will not submit
the case to the jury.
B. The Trial Court’s Reasoning
The trial court concluded that Jones v Keetch19 and Webb v Travelers Ins Co20 established
the duty owed by a lessor in Michigan. Indeed they do. The problem is that neither is a defective
design case. In Jones, a motel guest sued the motel operators when a chair that the defendants
owned collapsed, “causing him to fall on his fundament and suffer a ruptured disc.”21 The guest
sued for negligence and breach of an implied warranty of fitness for intended use, not defective
design.22
In Webb, the plaintiff was injured as a result of a cave-in a tunnel in which he was
working.23 The plaintiff sued Traveler Insurance on the grounds that it breached its duty to make
adequate safety inspections.24 The plaintiff also sued Don Gargaro Company, Inc., the
19
Jones v Keetch, 388 Mich 164; 200 NW2d 227 (1972).
20
Webb v Travelers, 98 Mich App 157; 296 NW2d 216 (1980).
21
Jones, supra at 167.
22
Id.
23
Webb, supra at 158-159.
24
Id. at 159.
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owner/lessor of a machine that the plaintiff was assigned to clean in a products liability action on
the basis of negligence and breach of an implied warranty, not defective design.25 Thus, we do
not think that Jones and Webb apply to a defective design claim.
C. Defective Design Conclusion
More importantly, as already suggested, this issue presents a definitional problem. One
can reasonably reach the conclusion that this is a products liability case. The claim, as Hendin
stated it, was for defective design. Hendin could certainly bring such a case. Yet, the proper
defendant would have been the manufacturer of the stage, Century, and not its owner/lessor
Oakland County Parks. Alternatively, Hendin could have sued Oakland County Parks as the
owner/lessor of the stage on the sort of owner theories set out in Jones and Webb. However, the
proper claim would have been for breach of implied warranty of fitness for the use intended, not
a design defect. However, Hendin did not take either of these approaches to this case. Thus,
with the defective design claim and property parties incorrectly matched, the trial court properly
granted a directed verdict concerning Hendin’s defective design products liability claim, although
it did so for the wrong reasons.26
Affirmed.
/s/ William C. Whitbeck
/s/ E. Thomas Fitzgerald
/s/ Jane E. Markey
25
Id.
26
See Glazer v Lamkin, 201 Mich App 432, 437; 506 NW2d 570 (1993).
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