Thomas v. Consumers Power Co

394 Mich. 459 (1975)

231 N.W.2d 653

THOMAS v. CONSUMERS POWER COMPANY

Docket Nos. 56722, 56723.

Supreme Court of Michigan.

Decided July 23, 1975.

Cicinelli, Mossner, Majoros, Alexander & Harrigan, P.C., for plaintiffs.

Smith & Brooker, P.C. (by Webster Cook; W.E. Wisner, of counsel), for defendant Consumers Power Company.

William C. Hoffman, for defendant Saginaw County Agricultural Society.

MEMORANDUM OPINION. Defendants obtained summary judgments as to both counts of plaintiffs' complaint. Plaintiffs had sought to recover for the deaths of their decedents in a snowmobile accident. Their deaths occurred on land owned by Saginaw County Agricultural Society when their snowmobile came in contact with a Consumers Power guy wire thereon. The Court of Appeals affirmed. 58 Mich App 486; 228 NW2d 786 (1975). This Court, in lieu of leave to appeal, pursuant to GCR 1963, 853.2(4), affirms the decision of the Court of Appeals as to Count I, but reverses and remands for trial as to Count II.

Count I was based on ordinary negligence. Defendants successfully interposed MCLA 300.201; MSA 13.1485. We accept the Court of Appeals' construction of this statute.

Count II was based on gross negligence. We find that the allegations of the complaints sufficiently state facts giving rise to a cause of action based on gross negligence so as to withstand summary judgment. Plaintiffs clearly alleged that the defendants knew of Consumer Power's unmarked guy wires and the threat therefrom to snowmobilers permissively *461 using the Saginaw County Agricultural Society's land, that unmarked guy wires in areas "exposed to traffic" were a violation of an industry safety code, that the defendants could have avoided the resulting harm in several ways, and that they failed to do so. See, e.g., Taylor v Mathews, 40 Mich App 74; 198 NW2d 843 (1972); 2 Restatement of Torts 2d, § 500.

T.G. KAVANAGH, C.J., and WILLIAMS, LEVIN, J.W. FITZGERALD, and LINDEMER, JJ., concurred.

M.S. COLEMAN, J., would affirm the decision of the Court of Appeals in its entirety.

SWAINSON, J., took no part in the decision of this case.