Preview:

STATE OF MICHIGAN
COURT OF APPEALS


DANIEL SCHWARTZ, Plaintiff-Appellant, v MELVIN PETERSON, Defendant-Appellee.

UNPUBLISHED June 5, 2001

No. 223480 Gogebic Circuit Court LC No. 98-000307-NO

Before: Sawyer, P.J., and Smolenski and Whitbeck, JJ. PER CURIAM. In this premises liability case, plaintiff appeals as of right from an order granting summary disposition in favor of defendant under MCR 2.116(C)(10). We affirm. Defendant is an elderly gentleman who lives in Ironwood, Michigan. Although defendant was able to plow his own driveway with a snowblower during winter months, health considerations prevented him from shoveling snow from his garage roof. Plaintiff and defendant were personal friends who had known each over the course of thirty years. Plaintiff frequently performed odd jobs for defendant, such as putting up eaves troughs on defendant's home, tilling defendant's garden, and removing snow from defendant's roof. Typically, the parties did not discuss payment for plaintiff's services in advance of the work. However, defendant usually paid plaintiff five or ten dollars after he completed work at defendant's home. On February 9, 1998, defendant asked plaintiff to salt the ice that had accumulated at the eaves of defendant's garage. Although plaintiff had removed snow from defendant's garage roof on thirty or forty occasions, he had never salted ice or snow on the roof. Defendant frequently allowed plaintiff to use an aluminum extension ladder that was stored in defendant's garage, in order to perform work on defendant's premises. On the day in question, according to the parties' customary practice, defendant left the garage door open for plaintiff. Plaintiff testified that he removed the ladder from defendant's garage and set it up himself, as he had done on numerous occasions. Plaintiff testified that he was accustomed to checking the feet of the ladder, and that he examined them on the day in question but discovered no apparent problems. Plaintiff then checked the surface of defendant's driveway, where he set the base of the ladder. Although he indicated that the driveway was icy in spots, plaintiff claimed that he set the ladder in a dry spot. Plaintiff also testified that he felt the ladder was secure. He ascended the ladder and salted the

-1-

ice on defendant's roof. While descending the ladder, plaintiff fell to the ground and sustained injuries. Plaintiff filed suit, alleging that he was an invitee on defendant's premises at the time of injury and further alleging that defendant breached the legal duties owed to invitees on his property. Plaintiff argues that defendant should have inspected the driveway for snow and ice before defendant began the work. In addition, plaintiff argues that defendant supplied a dangerous and defective ladder and that defendant should have held the ladder steady while defendant performed the work. In the trial court, defendant conceded that plaintiff was an invitee on his premises but moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that he was entitled to judgment as a matter of law because the allegedly dangerous conditions were open and obvious. The trial court agreed and granted defendant's motion. We review a trial court's grant of summary disposition de novo. Wilcoxon v Minnesota Mining & Mfg Co, 235 Mich App 347, 357; 597 NW2d 250 (1999). Reviewing a grant of summary disposition, this Court must evaluate the affidavits, pleadings, depositions, admissions, and any other documentary evidence submitted by the parties in the light most favorable to the non-movant. Id. at 357-358. After reviewing the record evidence in the light most favorable to plaintiff, we must decide whether a genuine issue of material fact existed to warrant a trial. Phillips v Deihm, 213 Mich App 389, 398; 541 NW2d 566 (1995). A prima facie claim of negligence requires the plaintiff to prove (1) that the defendant owed plaintiff a duty, (2) that defendant breached that duty, (3) causation, and (4) damages. Ellsworth v Hotel Corp of America, 236 Mich App 185, 194; 600 NW2d 129 (1999). At issue here is the duty that defendant owed to plaintiff. With regard to premises liability actions, persons who enter upon the land or premises of another are either trespassers, licensees or invitees, with each category having a corresponding standard of care owed by the possessor of real property. Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 596; 614 NW2d 88 (2000). The trial court concluded that plaintiff was an invitee on defendant's premises at the time of injury and applied the corresponding duties on defendant as a landowner. Based on our Supreme Court's holding in Stitt, we conclude as a matter of law that plaintiff was a licensee on defendant's premises, rather than an invitee. Given the standard of care owed by a landowner to a licensee, we conclude that the trial court properly granted summary disposition in defendant's favor, albeit for a different reason. The trial court apparently based its decision that plaintiff was an invitee on Hottmann v Hottmann, 226 Mich App 171, 175; 572 NW2d 259 (1997) and Leveque v Leveque, 41 Mich App 127, 131; 199 NW2d 675 (1972), both of which stand for the proposition that an individual who is on another's premises to perform services beneficial to that person is an invitee. However, the trial court's decision was rendered without the benefit of our Supreme Court's decision in Stitt, supra. We believe that the Court's holding in Stitt requires the conclusion that plaintiff was a licensee at the time of injury, not an invitee. In Stitt, supra at 603, the Court held that the "public invitee" concept set forth in 2 Restatement Torts, 2d,

Download DANIEL SCHWARTZ V MELVIN PETERSON.pdf

Michigan Law