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STATE OF MICHIGAN
COURT OF APPEALS


JOSEPH KOSMALSKI and KATHY KOSMALSKI, on behalf of MARILYN KOSMALSKI, a Minor, Plaintiffs-Appellants, v ST. JOHN'S LUTHERAN CHURCH, Defendant-Appellee.

FOR PUBLICATION March 4, 2004 9:05 a.m.

No. 240663 Ogemaw Circuit Court LC No. 00-653405-NO Updated Copy May 21, 2004

Before: Whitbeck, C.J., and Hoekstra and Donofrio, JJ. HOEKSTRA, J. In this premises liability action, plaintiffs Joseph and Kathy Kosmalski, on behalf of their daughter Marilyn Kosmalski, a minor, appeal as of right the trial court's order granting defendant St. John's Lutheran Church's motion for summary disposition and dismissing the case. We affirm in part, reverse in part, and remand. Annually, St. John's holds a vacation bible school at its church facility and volunteers are used to help conduct the vacation bible school. Marilyn Kosmalski, who is the granddaughter of a church member, but is not herself a member of St. John's, accepted her grandmother's invitation to be a volunteer during the vacation bible school and was assigned the job of a playground helper. While supervising the playground during the week of the vacation bible school, Marilyn had an encounter with one of the children that resulted in the child's running away toward the church building. Marilyn followed after the child and as the child pulled open a glass door, Marilyn's extended arm came into contact with it. As a result, the glass shattered, cutting Marilyn's forearm from her wrist to her elbow and causing nerve damage. Plaintiffs filed the instant premises liability action against St. John's, alleging that Marilyn was an invitee on St. John's premises at the time she was injured and that St. John's was negligent and breached its duty to maintain the premises in a reasonably safe condition by failing to replace the glass in the door with safety glass or otherwise warning or taking other precautions to protect Marilyn from unreasonably dangerous conditions. Ultimately, St. John's responded by filing a motion for summary disposition. In its motion, St. John's maintained that Marilyn was a licensee, rather than an invitee, and that it did not breach its duty to her as a licensee because the glass door was not an unreasonably dangerous condition and, in any event, St. John's was

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unaware of the condition of the door. Further, St. John's argued that the negligence elements of proximate cause and duty are absent. The trial court determined that Marilyn was a licensee because St. John's vacation bible school was primarily conducted for the purpose of evangelism and not for a commercial purpose. Further, the trial court concluded that the mere fact that the glass door of St. John's building broke and caused injury did not, by and of itself, show that it was an unreasonably dangerous condition. The trial court also stated that the door was not an unreasonably dangerous condition simply because the most recent safety code requires that glass doors contain safety glass. Finally, the trial court declined to address St. John's argument regarding proximate cause because it was moot. This appeal ensued. We review a trial court's ruling on a motion for summary disposition de novo. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Although the trial court did not identify the particular subrule under which it granted summary disposition, it is apparent that the motion was decided under MCR 2.116(C)(10), because the trial court's consideration went beyond the parties' pleadings. A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Veenstra v Washtenaw Country Club, 466 Mich 155, 163; 645 NW2d 643 (2002). In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10), (G)(4). Quinto v Cross & Peters Co, 451 Mich 358; 547 NW2d 314 (1996). [Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999).] On appeal, plaintiffs first argue that the trial court erred in holding that Marilyn's status at the time she was injured was that of a licensee rather than an invitee. Specifically, plaintiffs contend that the trial court improperly focused on the evangelizing purposes of the vacation bible school rather than the child-care service that Marilyn was invited onto the church property to provide. Plaintiffs maintain that, when analyzed from this perspective under the controlling authority of Stitt v Holland Abundant Life Fellowship, 462 Mich 591; 614 NW2d 88 (2000), Marilyn was performing a commercial purpose and must be accorded invitee status, or at a minimum her status must be left to a jury to determine. We disagree. To establish a prima facie case of negligence, a plaintiff must prove: (1) the defendant owed a duty to the plaintiff, (2) the defendant breached that duty, (3) the defendant's breach caused the plaintiff 's injuries, and (4) the plaintiff suffered damages. Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). With regard to the first element, the duty owed to a visitor by a landowner depends on whether the visitor is classified as a trespasser, licensee, or invitee. Stitt, supra at 596. In Stitt, supra, our Supreme Court addressed the legal framework for determining whether a person who enters upon the land or premises of another is a licensee or an invitee. The

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Court's discussion of this issue arose in the context of whether the category of public invitee found in

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