*1 215 Mich v RADLOFF PIGEON 4, 1995, at Decided 167638. Submitted October Escariaba. Docket No. denied, 1996, 13, appeal February at 9:00 a.m. Leave to —. friend, minor, Frailing, Pigeon, by his next Nikki a Kenneth against brought in Iron Circuit Court Scott action others, Radloff, seeking damages injuries Marilyn for sus- old, Pigeon, years into the when who was fifteen dove tained pool. Pigeon aboveground swimming had invited been Radloff’s son, Marilyn pool by Scott and to swim the the Radloffs’ but court, The were not home the accident occurred. Radloff when J., Payant, granted summary disposition for the defen- D. John plaintiff regard granting appealed The to the order dants. summary disposition for Radloffs. Appeals The Court of held: disposition granting summary erred in 1. The trial court the Radloffs. duty depends on A to a licensee whether 2. landowner’s a A to a child licensee is an adult or child. landowner’s pre- ordinary exercise reasonable or care to social is to accurately injury child. trial court vent to the The stated by adult that the owed a landowner to an no to warn the adult licensee owner owes court, however, danger. The trial failed to and obvious higher duty recognize a child that a landowner owes licensee, the issue licensee. Because the child Marilyn Scott and Radloff had a warn with the use of the associated than have to the rather decided should been submitted as a matter of law. the court something injured by is or 3. child licensee is When a danger summary to an be an and obvious does the rule that a landowner not have based on of an to warn an adult licensee inappropriate say from undis- unless the trial court can References 159, 247, 2d, Liability 248. Am Premises §§ Jur Liability. See ALR Index under Premises v Radloff puted persons agree evidence that all reasonable would expected the child licensee did or could have been to realize the Here, say risk involved. the trial court could not that all persons agree that the did or could expected have been to realize the full extent of the risks diving swimming pool. granting involved into the *2 improper was as a matter of law. Summary disposition plaintiff’s 4. regarding claim negligent supervise inappropriate. plaintiff’s failure to was The complaint upon was sufficient to state a claim which relief can duty be for breach of the to exercise reasonable or ordinary prevent injury care to to the because the duty may duty supervise Radloffs’ of care have included the plaintiff’s pool. jury use of their The should have been permitted to make the determination. Reversed and remanded. Sawyer, P.J., dissenting, precedent stated that clear would regarding favor the defendant landowners if this were a case products liability premises liability involving plain- or an adult distinguish tiff. There merely is no reason to this case because question is a minor. The more relevant concerns duty supervise the need or the minor while the premises. child is on the This case leads to the conclusion that parents supervise have a their own children or deter- age maturity mine that longer are of sufficient and to no supervision. responsibility parents, need such The lies with the premises Only premises not the owner. where the owner has responsibility supervising unaccompanied assumed for child any negligent supervision. is the owner liable for Marilyn agreed evidence does not show Scott and Radloff supervise Pigeon. Summary disposition appro- Kenneth priate. Negligence Liability — — — 1. Premises Child Licensees Adult Duty— Licensees to Warn.
A depends landowner’s to warn a licensee on whether the child; licensee is an adult or a the landowner’s to an adult open danger; licensee is to warn of and obvious the landowner’s ordinary to a child licensee is to exercise reasonable or prevent injury care to to the child. Negligence Liability — — Open — 2. Premises Child Licensees Dangers Duty— and Obvious to Warn. Summary disposition based on the rule that a landowner has no warn an adult licensee of and obvious inappropriate as a matter of law a case where a child Opinion the Court something injured by or and that is say the trial court can to an unless persons undisputed evidentiary facts that all reasonable agree have been licensee did could child involved; question generally expected it is to realize risk appreciates a child licensee for to determine whether with an of the risk involved full extent danger. Torger (by G. Omdahl
Fisher & Omdahl Lawrence), plaintiff. Geoffrey C. (by Timothy O’Dea, M.
Geissler, & P.C. Dean Geissler), K. for Scott Dean and Frederick Marilyn Radloff. P.J., and W. G.
Before: Murphy Sawyer, SCHMA,* JJ. appeals right a trial J. Plaintiff Murphy, granting summary in favor
court order (defen- Marilyn of defendants Scott and dants) Radloff *3 2.116(C)(8), pursuant failure to state MCR upon granted. We a claim reverse which can be relief remand. and Pigeon (plain- son invited Kenneth Defendants’
tiff) swimming aboveground in defendants’ swim pool pool dove into the at their residence. Plaintiff spinal injuries that and rendered neck and cord sustained quadriplegic. him a Plaintiff was fifteen years old when the accident occurred. Defendants not at the of the accident. were home time against as suit as well Plaintiff filed pool. The and of the the manufacturer distributor summary and moved for manufacturer distributor granted disposition, mo- the the and trial court appeal The does not those orders. tions. Plaintiff complaint against Marilyn al- Scott and Radloff
*
sitting
Appeals by assignment.
judge,
Circuit
on the
of
Court
Radloff
v
Opinion op the Court
leged negligence
failing
to warn
danger posed
by
failing
super-
the
and in
plaintiff’s
pool.
vise
use
Defendants moved
2.116(C)
summary disposition pursuant
for
MCR
(8),
trial court
the motion.
possessor
The
of land owes to
who
those
upon
come
the land turns on
the status of
Square
Stanley
Cooperative,
visitor.
Mich
Town
v
(1993).
App 143, 146;
be viewed as a licensee. occupiers which of land owe their expressed licensees Torts best 2 Restatement (2d), 342, p 210: § possessor "A subject land is physical harm caused to aby licensees condition if, if, land only but "(a) possessor or has knows reason to know of the condition and should realize that it involves licensees, risk unreasonable of harm to such expect and should will not discover or the danger, realize "(b) he fails to exercise care to make safe, condition to warn the licensees of the involved, condition and the risk "(c) the licensees do not know or have reason
know of
condition and the risk involved.”
*4
However,
in
as this Court noted
Klimek v
App
Drzewiecki,
115, 119;
135 Mich
theOn other should realize Opinion op the Court dangerous condition that a that the fact perception not licensees of child enough will him assume to entitle appreciate involved of the risk full extent therein. [Emphasis added.] appreci- question, then, is whether diving risk involved the full extent ated swimming pool. do not believe We into defendants’ that every age specific child which at there is a appreciate the full understand and said to can be extent *6 particular any a matter of law. risk as Taylor 74, 91-92; 198 Mathews, 40 Mich v following (1972), stated the this Court NW2d 843 trespasser fifteen-year-old who of a in the context injured abandoned dove into an when he was gravel
pit on the bottom: struck his head rule, presenta- a absent We are constrained age facts, fixed there is no undisputed that tion of expected to does and can be at which a child realize risk, matter of law.3 We particular as a any upon its judge each case rule is believe the best (cid:127) until case and in the instant own merits pres- given opportunity plaintiffs been have case, proper cannot be assured. a result ent their evidentiary undisputed say judge can Unless the agree plaintiff, that men would facts that all reasonable Delmar age years Taylor, the time of was 15 at whose expected to realize the risk have been did or could occurrence involved submitted gravel pit, diving must be the issue in into the jury. a applica- equally analysis We believe that Accordingly, licensee. of a child in the context ble injured by licensee is when a child we hold that something and obvious be an that is or danger based to an inap- danger Glittenberg’s open rule is and obvious propriate trial court unless the matter of law as a Radlofp v Opinion of the Court undisputed say evidentiary can from the facts that persons agree all reasonable that the child expected licensee did the risk involved. It is could have been to realize ques- generally a therefore tion for the to determine whether a child appreciates the full the risk extent of danger. Here, involved obvious say the trial court could not all agree persons would did or could expected have been realize full extent diving swimming pool. in risks involved Accordingly, summary into the improperly the trial court a as matter law. equally apply We note that this rationale could products involving child, ato case such supra. Arguably, Mallard, if a landowner not. the appreciate entitled to assume that a child will full extent of the in risk involved danger, then a manufacturer should not assumption be entitled to make such an either. panel expla- in Mallard concluded with little Glittenberg’s open nation that applies products liability rule children suit. Although question holding Mallard, we we involving believe that case a child is distinguishable products liability from a in- case *7 volving a child because a landowner is closer to opportunity the situation has the to exercise greater oversight control and over a situation involving children and property.
on his We also conclude that of plaintiffs regarding negligent claim failure to su- pervise inappropriate. granting summary was In claim, of this the trial court Brad- cited supra. panel ford, Bradford, of Court this public policy, property stated, of "as matter charged owners should not be the of by Sawyer, P.J. Dissent guests controlling who supervising of children property.” Id., 71-72. onto the invited have been reliance trial court’s the conclude We because, in this was erroneous Bradford guest, is no and there himself was parents plaintiff’s the record indication presumably supervise present him, which were was holding public-policy for the the rationale distinguishable Accordingly, this case Bradford. from Bradford. previously stated, had As prevent ordinary care to or
exercise plain- supra, plaintiff. Here, injury Klimek, 120. upon complaint a claim sufficient state tiff’s of that for breach relief can be which in- have of care defendants’ because supervise plaintiff’s their use of cluded jury ordinarily pool. Furthermore, note that a we questions Har- Scott v of reasonable care. decides per Inc, 441, 448; 506 NW2d Recreation, conclude that therefore We permitted to determine have been should supervise consti- failure defendants’ duty to exercise reasonable of their tuted a breach plaintiff. prevent injury ordinary care to remanded. Reversed and J., G.W- Schma, concurred. (dissenting). I P.J.
Sawyer, dissent. respectfully majority to distin- valiant effort makes a controlling opinions guish case from Supreme However, its Court. this Court and fatally reasoning This case flawed. is nevertheless (1) applicability two issues: involves open liability doctrine to (2) negligent viability claim and respect issues, supervision to both With claim. *8 447 v Radloff by Sawyer, Dissent P.J. appears plaintiff majority to concede that had been adult, an would have been argues appropriate. majority, however, The minor, claims because was a his remain disagree. I viable.
There is no doubt that were danger pre- open and obvious doctrine premises liability recovery The clude on the claim. Supreme prod- held, Court has in the context of a liability open case, that dan- ucts ger precludes recovery doctrine associ- aboveground swimming ated with the use pool. Glittenberg Doughboy v Recreational Indus- (On Rehearing), 379; tries 441 Mich 491 208 NW2d (1992). Supreme Furthermore, Court ex- has danger tended obvious doctrine to premises liability cases, Riddle McLouth v Steel (1992). Corp, 85; Products 485 676 NW2d Additionally, this Court has held that danger applies obvious doctrine minors products liability specifically cases, an above- ground swimming Hoffinger v case. Mallard Industries, Inc, 282; 1 Mich NW2d precedent favoring Thus, there is clear products liability this were or a case premises liability involving plaintiff. case an adult majority, however, believes case is distin guishable premises it because a minor is a case involving plaintiff, permutation apparently yet has not been decided this Court. any distinguish
I fail to see reason to this case merely Mallard, because is minor. supra explained why 285-286, at this Court danger doctrine, in the context products applies liability of a children well as adults:
Because the determination the obvious nature App 215 by Sawyer, P.J. Dissent objective one that focuses is an *9 user, it is not neces- and because typical the precise nature the user understand sary that might result possible injury that every of diving to above-ground pool, we are unable into Glittenberg on the basis distinguish this case from agree age. to with defen- the victim’s We tend of dant that, if a child Pool Town’s comment danger- understanding warning, capáble of a child, ren- be to the ous condition would Conversely, if the warning unnecessary. dering the child, then a warn- not obvious to the condition is ing likely be of little use. would lia- premises reasoning applicable is as This cases. That products liability as it is to bility cases imma- is, if minor sufficiently in either condition, he is dangerous appreciate ture to the warn- appreciate immature sufficiently also ing. believe, I is the question,
The more relevant
on the
the minor while
supervise
need
second
plaintiffs
is the basis of
premises. This
claim,
supervision by defen-
adequate
the lack of
plaintiff
property
was on the
dants while
stronger argu-
admittedly
This is
a
using
pool.
premises
than
plaintiff
ment
believe,
claim,
that,
I
must
one
nevertheless
but
the trial court’s reli-
fail. The
dismisses
majority
Feeback,
67,
70;
ance on Bradford v
that Bradford
(1986),
in-
noting
points to no evidence that such a was volun- tarily assumed. short,
In I that to be learned believe the lesson supra, guests Bradford, is not that social supervise responsibility have a they bring to the children parents Rather, it that with them. is supervise children, have a to their own or age determine that their children are of sufficient maturity longer supervision. to no need such responsibility event, In either the lies with the parent, premises a minor not the owner. When person, possible the home of three visits another (1) the minor allowed to situations exist: has been (2) go unsupervised, parents accompany the there (3) supervise parents him, the child and or the do given permission by do not know his We parents go to defendants’ home to swim or whether he went there believe, however, permission. I not that that affects the without do analysis. plaintiff’s parents plaintiff did not Either concluded that supervision supervise plaintiff adequately they failed to need prevent responsibility parent, event, going permission. In either the him from without supervision supervision or rests with the for the lack the not homeowner. 215 by Sawyer, P.J. Dissent go accompany child, child to but allow the
not understanding only there will that with premises responsible owner, as the such parents present supervise the child because super- the child is still in need of have determined my only view, third In it under vision. premises condition, where the owner has assumed responsibility supervising unaccompanied for premises child, owner owes a any supervise the minor and is liable negligent supervision. plaintiff points bar, to no evidence the case at agreed supervise
to establish that defendants points explicit promise minor. Plaintiff to no supervise they child, defendants that would implicit anything nor is there in defendants’ con- implies agreement supervise duct that present they child, inasmuch as were neither the home at the time nor did themselves minor.2 invite the reasons, I that the
For above would conclude correctly summary trial court I for defendants and would affirm. example, premises parents For if a owner were to call the of a seven-year-old child and invite the child over to in the swim child, premises seven-year-old the conclude supervise it to to owner’s own implied promise by there is an owner child, visiting seven-year-old though perhaps prudent
parents clarify supervision the nature of the to make sure it is seven-year-old pool party. safe to allow their child to attend the case, however, give implied promise of this do not facts to rise such an supervise.