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STATE OF MICHIGAN
COURT OF APPEALS


ROGER W. WASHBURN, JR., as Personal Representative of the Estate of TERRY WASHBURN, Deceased, and as Personal Representative of the Estate of PATRICK WILLIAM WASHBURN, Deceased, Plaintiff-Appellant, v JOSEPH BIKSACKY and SHIRLEY BIKSACKY, Defendants-Appellees.

UNPUBLISHED June 29, 1999

No. 208461 Muskegon Circuit Court LC Nos. 96-335022 NO 96-335023 NO

Before: Hoekstra, P.J., and Saad and R. B. Burns*, JJ. PER CURIAM. Plaintiff appeals as of right from a circuit court order granting defendants' motion for summary disposition. We affirm. In this tragic case, plaintiff's wife and son drowned in a backyard swimming pool while staying at defendant's home. Defendants hired plaintiff's wife, decedent Terry Washburn, to watch their children while they were away on a week-long vacation, as they had done on several occasions. Mrs. Washburn and her 2-1/2-year-old son stayed at defendants' home while they were away. Defendants have an in-ground pool in their backyard which is accessible through either a padlocked gate in the fence or doors leading from the home's interior. Defendants installed childproof locks sixty-two inches from the floor on the doors that led to the pool, including the sliding doors. Defendants left a note for Mrs. Washburn in which they explicitly instructed her to keep all the interior doors locked and not to allow any children in the backyard. Despite these instructions, both Mrs. Washburn and her son drowned in the pool. The only witness to the accident, one of defendants' young children, told investigators that the boy had climbed the pool ladder and Mrs. Washburn had told

* Former Court of Appeals judge, sitting on the Court of Appeals by assignment. -1

him not to slide into the pool. Unfortunately, he slid into the pool, and Mrs. Washburn jumped into the water after him. Neither decedent could swim. Plaintiff, as personal representative of the estates of his wife and child, filed this wrongful death action claiming that his wife and son were business invitees, and defendants were negligent in failing to maintain their property in a safe, careful and prudent manner. Specifically, plaintiff alleges that defendants failed to provide adequate barriers to the backyard and adequate safety devices around the pool. Defendants denied liability and moved for summary disposition pursuant to MCR 2.116(C)(10), and the trial court granted the motion. We review a grant of summary disposition de novo. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). A motion pursuant to MCR 2.116(C)(10) tests whether there is factual support for a claim. Michigan Mutual Ins Co v Dowell, 204 Mich App 81, 85; 514 NW2d 185 (1994). The trial court must consider the documentary evidence submitted by the parties and, giving the benefit of reasonable doubt to the nonmoving party, the trial court must determine whether a record might be developed that would leave open an issue upon which reasonable minds could differ. Id. Although we do not favor summary disposition in negligence actions, it is appropriate where a plaintiff fails to establish a prima facie case. Richardson v Michigan Humane Society, 221 Mich App 526, 528; 561 NW2d 873 (1997). To establish a prima facie case for negligence, the plaintiff must produce evidence that: (1) the defendant owed a legal duty to the plaintiff; (2) the defendant breached that duty; (3) the defendant's breach was the proximate cause of the plaintiff's injury and (4) the plaintiff suffered damages. Id. I On appeal, plaintiff argues that there is a genuine issue of material fact, under a premises liability theory, and that summary disposition was improperly granted. We disagree. The outcome of this case hinges on whether defendants owed plaintiff's wife and son a duty of care. Insofar as defendants hired plaintiff's wife to watch over their children and home while they were away, she was clearly a business invitee. As business invitors, defendants had a duty to plaintiff's wife to maintain the premises in a reasonably safe condition and exercise ordinary care to keep the premises safe. Schuster v Sallay, 181 Mich App 558, 565; 450 NW2d 81 (1989). Their duty did not require them to anticipate unreasonable risks or dangers so obvious that an invitee can be expected to discover them for herself. Wagner v Regency Inn Corp, 186 Mich App 158, 162; 463 NW2d 450 (1990). The pool in this case was an obvious danger, and the record leaves no doubt that Mrs. Washburn was aware of its existence. Therefore, defendants had no duty to anticipate the danger it posed to her. Id. However, while Mrs. Washburn may have been an invitee, we do not think that plaintiff's son held that status when he ventured into the backyard. It is uncontroverted that defendants instructed Mrs. Washburn, in writing, that no children were allowed in the backyard. The written instructions also make clear defendants' reason for such a restrictive instruction: they sought to remove any risk that a

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child, theirs or plaintiff's, would use the pool in their absence. Therefore, when plaintiff's son ventured into the backyard, he left behind the status of invitee and became, at most, a licensee. Gilbert v Sabin, 76 Mich App 137, 144; 256 NW2d 54 (1977). Under the Restatement of Torts, 2d, a landowner is subject to liability for the physical harm to licensees by a condition on the land, 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. [Bradford v Feeback , 149 Mich App 67, 70-71; 385 NW2d 729 (1986), citing Preston v Sleziak , 383 Mich 442, 453; 175 NW2d 759 (1970), quoting 2 Restatement Torts, 2d,

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