*1 Holland Abundant STITTv HOLLANDABUNDANTLIFE FELLOWSHIP January 13, Argued (Calendar 1). Docket No. 112217. No. Decided July 18, September 19, 2000. Amended Stitt, personal representative Jill Moeller, as of the estate of Violet J. deceased, Moeller, premises brought liability and Gilbert E. a against action in the Ottawa Circuit Court Holland Abundant Life Fellowship injuries by tripped for suffered Ms. Moeller when she parking pretrial motions, and fell in court, the church’s lot. On the J., Post, plaintiff licensee, Edward R. determined that the was a and jury only regarding at trial the court instructed the the duties owed by licensee, refusing higher defendant to to instruct on the duty Judgment jury owed to invitees. . was entered on a verdict for Appeals, P.J., defendant. Court of and Griffin Hoekstra, JJ., trial, and reversed and holding remanded a new Bandstra, finding only that the trial court erred in that the had licen- see, invitee, App (1998) (Docket rather than status. 229 Mich 192208). appeals. No. The church opinion by Young, joined by In an Justice Chief Justice Weaver, Supreme and Justices Taylor, Corrigan, Court Mahkman,

held-. premises purposes Persons on church for other than commercial are licensees and not invitees. duty depends 1. A landowner’s to a visitor on that visitor’s sta- Michigan recognized categories per- tus. has three common-law upon premises sons who trespasser, enter the land or of another: licensee, trespasser person upon or invitee. A is a who enters land, another’s without the landowner’s consent. The landowner duty trespasser except no injuring owes to refrain from him person wilful and wanton misconduct. A licensee is who is privileged possessor’s to enter the land of another virtue of the duty only consent. A landowner owes a licensee a to warn the any dangers licensee of hidden the owner knows or has reason to of, know if the licensee does not know or have reason to know of dangers duty inspection involved. The landowner no owes or premises affirmative care to make the safe for the licensee’s visit. upon upon An invitee is a who enters the land of another implied representation, assurance, invitation that carries with it an 462 Mich 591 prepare understanding that reasonable care has been used to reception. premises, and make it safe for his The landowner has duty only care, any dangers, not to warn an invitee of but known requires safe, to also make the which the landowner to inspect premises and, upon circumstances, depending make *2 any necessary repairs any Thus, or warn of discovered hazards. protection premises highest invitee is entitled to the level of under liability law. persons inviting premises 2. An owner’s reason for is onto a primary determining a consideration when visitor’s status. In order status, premises to establish invitee must show that the open purpose. were held for a commercial visitors who are Church religious worship attending guests church for are more like social (licensees) (invitees). case, than business visitors In the trial this correctly jury persons property court instructed the on church purposes for noncommercial are licensees and not invitees. Reversed and remanded. joined by dissenting, Justice Justice stated that Kelly, Cavanagh, Supreme solely Court has never held that invitee status arises purpose visiting prem- where there is a commercial the owner’s Instead, long recognized applied ises. it has and both the commer- cial-purpose public-invitee provisions and the of 2 Restatement Torts, 2d, classify majority’s § 332 to visitors as invitees. The reli- McNulty Hurley, identify (Fla, 1957), ance on 97 So 2d 185 to vis- only they visiting pur- itors as invitees when are for a commercial

pose misplaced, rejects recognized principle Michigan and law. public provision accurately § invitee of 332 reflects the com- Michigan, adopted by Sleziak, mon law of as the Court in Preston v (1970), applied 383 Mich 442 and should be in this case. Further- more, public policy protecting it reflects the sound premises century, Michigan when are to them. For over a has recognized that a can be classified as an invitee when on an property pursuant invitor’s for a commercial to an invi- Thus, contrary McNulty principles recognized tation. runs to Michigan by imposing purpose requirement law a commercial on designation Supreme expressly of an invitee. The Court has sufficient; pecuniary profit stated that invitation is to the owner is essential, principle not and the is contained in the provision §of 332. Giddy Giddy) & Associates Ronald J. (by for the plaintiffs-appellees. v Holland Abundant Opinion of the Court Roegge Haughey, (by

Smith, Rice & R. Lance Mather) defendant-appellant. for the liability plaintiff, J. In this case the Young, injured tripped Moeller, Violet was when she over a stop parking concrete tire in defendant lot. church’s study. visiting Plaintiff was the church attend to bible alleging church, Plaintiff sued the that the defendant placed stops negligently provide the tire failed to adequate lighting parking in the lot. jury obligations trial,

At was on instructed jury owners owe licensees. The returned Appeals verdict favor of the church. The Court of reversed and remanded the case for a new after trial determining by instructing that the trial court erred jury obligations on the owed licensees rather “public than as in 2 invitees” defined Restatement p Torts, 2d, 332, 176.2 *3 granted

We leave this to case determine the proper standard of care to individuals on owed purposes. church for noncommercial We correctly jury hold that the trial court instructed the that such individuals are and licensees not invitees. Accordingly, Appeals we reverse the Court of deci- personal repre Stitt, Moeller is Violet now deceased. Jill decedent’s plaintiff. purposes has been as sentative substituted the named For of this opinion, plaintiff. Ms. Moeller will be referred to as the provides: Section of the Restatement public (1) An a invitee is either invitee or business visitor. person (2) A invitee is who is invited to enter remain or on land as a member of the for a for which the land public.

is held (3) A business visitor is or who invited to enter purpose directly indirectly remain on land for a connected with possessor dealings business with the land. Mich Opinion of the Court judgment in favor of sion and reinstate the trial court church. i FACTUAL AND PROCEDURAL BACKGROUND evening Moel- 22, 1989, On the of November Violet accompanied ler her friend Pat Drake to defendant’s study. church to attend bible Ms. was not a Moeller parked member of the church. Ms. Drake her car parking car, the church lot. As she exited Ms. Drake’s plaintiff tripped stop, fracturing and fell over a tire subsequently her left arm. Plaintiff sued the defend- asserting negligently church, ant that defendant placed stops provide the concrete tire and failed to adequate lighting parking in the lot. trial,

Before the church twice filed motions for summary disposition. The trial court denied both motions, but determined that Ms. Moeller was a licen- and see not invitee at the time of the The accident. proceeded judge trial, case at which time the jury instructed the on the duties owed to licensees.3 jury At the close of trial, the returned a verdict in subsequently favor of the defendant. The court judgment entered a of no cause on the verdict. gave following trial 3 The court instructions: possessor physical of land or is liable for harm premises if, only caused to the licensee a condition on the but if, possessor (A) condition, knew or should’ve known of the and should have realized that it involved an unreasonable risk of licensee, expected harm to the and should have that she would not danger (B) possessor discover or realize the failed exer- cise reasonable care to make the conditions safe or to warn the *4 involved, (C) licensee of the condition and the risk the licensee did not know or reason to know have of the condition and risk involved. Holland Abundant

Opinion of the Court appealed, contending that the trial court Plaintiff determining was a at that she licensee erred Appeals that of her accident. The Court held time “public invitee” as defined in 2 was a Torts, 2d, 332, and not a licensee.4The Restatement Appeals acknowledged that this Court has Court of adopted provision. explicitly the Restatement never reading on the its of Preston v However, basis of Sle- (1970), 442; 175 NW2d 759 the Court ziak, 383 Appeals provision applies concluded that this improperly Michigan and trial court jury. Appeals Accordingly, the Court of instructed judgment the trial court and remanded the .reversed applica- granted case for a new trial. We defendant’s appeal. (1999). for leave to 461 Mich 861 tion

n REVIEW STANDARD OF general rule, As a if there is evidence from which question might inferred, invitee status be it is a jury. Mazanec, 43, 58; See Nezworski v 301 Mich presents (1942). this However, NW2d 912 case question whether invitee status should be broader upon to an individual who enters church extended purpose. ques- property for a This is a noncommercial law that novo. See tion of we review de Cardinal High Michigan High Mooney School v SchoolAthletic (1991). 75, 80; 437 Mich 467 NW2d Ass’n, 229 Mich App 504; 582 NW2d 849 *5 Mich Opinion of the Court

ANALYSIS A. THE COMMON-LAW CLASSIFICATIONS Historically, Michigan recognized has three com- categories persons upon mon-law who enter premises (1) trespasser, (2) land or of another: licen- (3) Wymer see, or invitee. Holmes, v 66, 71, Mich (1987). Michigan 1;n 412 NW2d 213 has not aban- doned these common-law classifications. Reetz v Tipit, App Inc, 150, 153; 390 NW2d 653 corresponds categories Each of these to a dif- injured ferent of standard care that is owed to those premises. duty on the owner’s Thus, a landowner’s to depends Wymer, a visitor on that visitor’s status. supra 71, at n 1. “trespasser” person upon

A is a who enters another’s land, without the landowner’s consent. The duty trespasser except landowner owes no to injuring refrain from him “wilful and wanton” mis- conduct. Id. privileged

A “licensee” is a who is to enter possessor’s the land of another virtue of the con- duty only sent. Id. A landowner owes a licensee a any dangers warn the licensee of hidden the owner knows or has of, reason to know if the licensee does dangers not know or have reason to know of the duty inspection involved. The landowner owes no premises or affirmative care to make the safe for the Typically, guests licensee’s visit. Id. social are licen- ordinary sees who assume the risks associated with supra their Preston, visit. at 451. category per-

The final is invitees. An “invitee”is “a upon upon son who enters the land of another Holland Abundant Opinion of the Court implied representa- which with it an invitation carries understanding assurance, or tion, that reasonable prepare premises, care has used been reception.” Wymer, [it] [the invitee’s] make supra safe for duty n 1. care, at The landowner has a only any dangers, not to warn the known prem- obligation but the additional to also make the requires inspect safe, ises which the landowner to depending upon and, circumstances, any necessary repairs any make or warn of discov- *6 ered hazards. Id. Thus, an invitee is entitled to the highest protection premises liability level of under Quinlivan law. v Great Atlantic & Tea Co, Pacific (1975). Inc, 244, 256; 395 Mich 235 NW2d 732 possessor subject liability physi- A of land is to cal harm caused to his invitees a condition on the (a) land if the owner: of, knows the exercise of discover, reasonable care would the condition and should realize that the condition involves an unrea- (b) invitees; sonable risk of harm to such should expect that will not invitees discover or realize the protect danger, against or will fail to it; themselves (c) protect fails to exercise reasonable care to against danger. citing invitees Id. at Restate- § ment, correctly Appeals recognized

The Court that invi commonly persons entering tee status is upon afforded to property purposes. of another for business e.g., supra; See, Nezworski, Schmidt, Pelton v 104 345; Mich NW case, 552 In this we are upon called to determine whether invitee status entering upon should extend to individuals church purposes. for noncommercial Because invi necessarily tee status turns on the existence of an Mich

Opinion of the Court law in “invitation,” we must examine our common meaning ascertain the of that term. order to B. THE MEANING OF INVITATIONIN MICHIGAN’S COMMON LAW Unfortunately, prior proven our decisions have precise defining than be less clear circum stances under which a sufficient invitation has been extended to a visitor to confer “invitee”status. On the appear support several hand, one of our decisions requirement landowner’s be purpose. held for a commercial business See, e.g., Cohodas, Peterson, Paoli, Perl v Co, Nast (1940); 294 NW 325; v Great Diefenbach Atlantic & Tea Co, 507; 280 Mich 273 NW 783 Pacific ;5 (1937) Sink v Grand Trunk W R Co, 21; 227 Mich panels (1924). Indeed, 198 NW 238 several of our Appeals interpreted Court of have our decisions as supporting requirement purpose. of a business e.g., See, Butler v Ramco-Gershenson, Inc, 214 Mich App (1995); 521; 542 NW2d 912 Feeback, v Bradford App Leep (1986); 67; 149 Mich 385 NW2d 729 App (1982).6 118 Mich McComber, 653; 325 NW2d 531 purpose” sufficiently The “commercial distinction is *7 example, Diefenbach, injured For in was when he entered alleged purpose the defendant’s store. He he entered the store for the of purchasing groceries and denied defendant’s contentions that he entered participate going in the store to a rat hunt that was on at the time. The that, although plaintiff actually bought groceries, Court noted no if he undoubtedly came the store for a business he would be an invitee. 6 Butler, Appeals persons In the Court of defined invitees as who enter express implied at the owner’s or invitation to conduct busi concerning Correlatively, Bradford, ness the owner. the Court of Appeals person who, pur licensee as a defined other than for a business pose, express implied permission enters another’s land with the or of the property. owner or in control of the v Holland Abundant Opinion of the Court recognized Michigan case law that there are even secondary authorities include Michigan among jurisdictions those conferring only status on See, business visitors. 95 ALR2d e.g., 992, 4, p § In contrast with the line of cases a com supporting puipose mercial requirement, some of our earlier decisions are replete with broad language suggestive of the Restatement’s “public invitee” definition, precise although contours of the definition are difficult to See, discern. e.g., Polston v S S Kresge Co, 575; 324 Mich 37 NW2d 638 (1949);7Sheldon v Flint & P M R Co, 59 Mich 172; 26 NW 507 (1886); Hargreaves Deacon, 25 Mich 1 (1872).8

Finally, there is Preston, supra which is internally point. inconsistent on this Preston was interpreted by Appeals Court of implicitly as having adopted the Restatement definition “public invitee.” At time, same Preston, supra at 448, quoting Cooley on 7 Polston, In this Court held that members of the who use a side knowledge, permission, acquiescence walk with the defendant’s and were trespassers provided not but licensees. The Polston Court that the rule for path licensees using is different when the licensee that has been openly notoriously cases, and held out to the for use. In such duty greater ordinary Court held that the defendant owed a care. We note that Polston and other cases decided about that time seem to impose special heightened duty persons injured sidewalks, on bridges, roadways public. Hence, per- held where such ordinarily licensees, they sons would be considered were nonetheless duty ordinary See, e.g., Michigan Co, entitled to a care. Brown v R 280; (1918); Carpenter, 207; 168 NW 419 Morrison v 179 Mich NW 106 8 Hargreaves, duty In this Court stated that landowner owes a of care injured party by personal when an has been induced to come invitation or employment place resorting general there aas of business or “of open” may resort held to customers or others whose lawful occasion lead Interestingly, Hargreaves them come visit. Id. at 5. is cited in 95 ALR2d 992, 4, p supporting puipose requirement. 1014 as a commercial *8 Mich

Opinion of the Court purpose appears recognize commercial Torts, the requirement with invitee status: associated may when there is a common

An invitation be inferred object advantage, is interest or mutual a license when the pleasure person using it. “To the mere or benefit of implied invitation, distinguished under an as come from license, purpose come a a mere visitor must con- occupant nected with the business with which the engaged, permits or which he to be carried on mutuality there. There be some of interest the sub- must ject relates, par- although to which the visitor’s business object may ticular business which is the of the visit not be occupant. for the benefit of the distinction is a “The between visitor who mere licensee premises by largely who is turns and one on the invitation there, brings him on the nature of the business that rather precede than on the words or acts of the owner which his Cooley, 440, pp coming----” (4th ed), § Torts 193-194 [3 (emphasis added).][9]

Cooley’sacknowledgment that an invitee’s status is dependent upon a visit associated with a “commercial purpose” “mutuality concerning of interest” reason for the visit demonstrate the extent to which Michigan historically, uniformly, recognized has if not precondition a commercial business aas establishing invitee status.

Despite divergence concerning of our cases necessary thing to confer invitee status, elements one knowledge, has been consistent: to our this Court has squarely question never addressed the whether purported adopted Given that Preston is to have the Restatement “public definition, require purpose, invitee” which does not business we Cooley, expressly find it difficult reconcile Preston’s citation to which requires purpose, Michigan a business as an accurate statement of law. Id. at v Holland Abundant

Opinion of the Court “public churchgoer mere invitee” such as a is entitled plaintiff suggests to invitee status. While *9 that our already recognized liability cases have for churches, a careful review of these cases shows that analysis. contrary, this is a less than accurate To the Michigan cases that have conferred invitee status upon injured premises an individual on church plaintiff reveals that each has involved a who was on premises pur- the church for a commercial business pose. example, For in Bruce v Central Methodist Episcopal (1907), Church, 147 Mich 230; 110 NW 951 plaintiff was allowed to recover from the defend- injuries ant painting church for he sustained while building. working church The was for a con- painting ceiling tractor, of the church when the scaffolding standing on which he was broke. fifty years

Almost later, a defendant church was Manning Bishop Marquette, held liable in (1956). Manning, plain- Mich 130; 76 NW2d 75 In injured tiff fell and was on church as she leaving bingo game. was argued a The defendant that plaintiffs claim was barred because she was at illegal purpose the church for an and should not use illegal her conduct as a foundation for her claim premises she was on the as an invitee. Id. at 137.The any Court refused to entertain defenses based on ille- gality immunity plain- or charitable and held that the tiff was an invitee. Angel

Later, in Kendzorek v Guardian Catholic App (1989), Parish, 178 Mich 562; 444 NW2d 213 grounds overruled on other in Orel v Uni-Rak Sales (1997), Co, 454 Mich 564; 563 NW2d 241 a child was injured swing on a at a carnival held on the church grounds. The carnival was a church fund-raiser. The

Opinion Court of the against brought the church. suit mother child’s Appeals was time the child that, at the held Court of injured, invitee. was an she tradi- invitee status has illustrate, these cases

As only persons tionally on cases conferred our been injured were there for who church on purpose. commercial

C. THE RESTATEMENT jurisdic- large begin noting number of that a We adopted § 332 of the Restatement: have tions public a business (1) invitee or An invitee is either visitor. is invited to enter or (2) invitee is a who A a member of the

remain on land as *10 public. land is held which the person who is invited to enter (3) A visitor is a business directly indirectly purpose con- on land for a or remain possessor dealings with the of the with business nected land. (2) § 332 of the Restatement creates

Subsection depend on a commer- status that does not an invitee Appeals purpose. In the Court of inter- case, cial this adopted implicitly preted supra, having as Preston, “public invitee.” We cer- the Restatement definition of tainly § agree relied on that Preston adopt whether to However, the issue Restatement. “public was not definition of invitee” the Restatement in Preston. before this Court plaintiffs guests who were social Preston, In cottage for the defendant’s had been invited to the plaintiffs cottage, weekend. In order to access con- The lift of a car that was entered a lift. consisted plain- by winch. After the trolled cable and electric Holland Abundant Opinion of the Court tiffs lift, entered the a shaft broke and the car plaintiffs. injuring plain- crashed, Id. at 445. The against jury tiffs filed suit the defendants. The returned a verdict in favor of the defendants. The Appeals erroneously Court of determined that the plaintiffs merely they were invitees because had been premises. “invited” onto the That Court reversed and remanded the case for a new trial. Id. This Court held Appeals requiring that the Court of committed error judge properly reversal because the trial instructed jury duty on the owed a host to his social guests, licensees. Id. at 454. As stated the trial judge, duty a host has no to reconstruct his or make his home more convenient or more safe for accepting hospitality. guest those his assumes the ordinary premises. risks that come with the Id. at 446. plain-

There was no contention in Preston that the “public tiffs were invitees,” because that case only duty guests. involved owed to Thus, social adopt the issue whether to the Restatement definition “public invitee” was not before this Court in Pres- regarding ton and there is room for doubt whether properly regarded binding prece- Preston can be as point. dent on this However, to the extent Preston purported adopt the Restatement definition, properly binding holding, this could be considered a explained we overrule Moreover, Preston. below, as adopt we decline to 332 of the Restatement here. precondition d. business as a *11 of invitee status divergence Given the of our cases on what circum- provide stances create status, we must some harmonizing form of reconciliation in this case. In our Mich 591 op Opinion the Court imposition of additional that the cases, we conclude requiring by expense landowner, and effort inspect premises make them and landowner to directly tied to the owner’s visitors, must be safe interests. It is the owner’s desire business commercial by persons advantage inviting foster a commercial justifies imposition premises that of a visit the to higher prospect duty. conclude that the short, In we quid pro quo pecuniary gain for the is a sort duty higher Thus, to invitees. we hold of care owed inviting persons reason for onto that the owner’s primary premises is the consideration when determin- ing In to establish invitee the visitor’s status: order premises show that the were status, a must purpose. held commercial regard agree visitors, we with the With to church Hurley, 1957), McNulty (Fla, 97 So 2d 185 court persons McNulty, In that such are licensees.10 injured churchgoer leaving when, as she was was pushed ground a crowd of church, she was people. granted The lower court the defendant plain- grounds church’s motion to dismiss on that the tiff failed to state a cause of action. The defendant premises entering that one church for the contended attending religious a mere services is only duty was to Thus, licensee. of the church negligence or wilful misconduct refrain from wanton intentionally exposing and to refrain her to dan- from plaintiff, ger. argued hand, Id. át 187. on the other and that she was on the church invitation Supreme away McNulty moved from The Florida Court has since adopted Lunney, 2d 146 has 332 of the Restatement. See Post v 261 So per 1972). However, McNulty’s reasoning (Fla, we continue to find suasive. *12 Stitt v Holland Abundant Life Opinion of the Court urge that most others to religions members and enter hold their as a their churches and doors stand- The Supreme invitation. Id. Florida Court dis- ing agreed, stating: worship, invitation enter and whether it be either

[A]n express implied, accepts does not or constitute one who legal the in In invitation an invitee the order for sense. such relationship person entering premises, the onto to arise the purposes invitee, i.e. the must have done so for which occupant prem- would have the benefited owner or of the ises, invitor, i.e. the or have been of mutual benefit to the invitee and And as the invitor. we view it this benefit must be of a spiritual, material or commercial rather than of a religious, or social nature. at [Id. 188.] Thus, as the do, McNulty we court considered business aor business or commercial benefit to the a necessary requirement landowner as in order visitor to be deemed an invitee. The McNulty rejected argument court that church members confer a benefit to the church supporting church, stating: successfully logically argued

It cannot be or that a place worship, by any name, partici- enters a call it and pates worship prayer Supreme Being to the or God body of his organization choice for the benefit of or church, lay religious which owns the or readers who services, Supreme Being conduct or the God or whom worships guidance, help forgiveness. he and asks One concepts religious of the of all beliefs known to us is that participation religious activities is for benefit of the participate [Id,.] mortals who therein. The also McNulty court addressed the issue whether financial religious contributions at a service provided sufficient basis for invitee status. We find Mich

Opinion of the Court plaintiff analysis in the instructive because this prior similarly alleges to the on visits bar case at contributions financial she made church be consid- that she should an extent church to such McNulty court stated: an invitee. ered alleged that she had it matter if the Nor would plate passed, was when the collection made a contribution *13 changed ... her status. It seems not have for this would religious edifice for who attends a . . . that one clear us service, religious as did the purpose attending a convenience, case, plaintiff so “for his own in this does at 188- pleasure is at best a licensee. or benefit” and [Id. 189.] agree in the instant that whether the

We previously offering gave has no to the church an case bearing invitee. was a licensee or an on whether she showing invitation to that the church’s Absent an essential commercial its services was for attend purpose, a licensee Ms. should be considered Moeller person as a who attends church and not an invitee. A guest “unrecompensed hospitality” pro- enjoys way by that a the church in the same vided Hambright entering a friend would. the home of 1994). Baptist (Ala, So 2d Church, First attending are that visitors who We conclude church worship religious social are more like church for (invitees).11 guests (licensees) than business visitors voluntary entirely nonprofit organi donations The solicitation of activity. provid Accordingly, plainly a church zation is not a commercial voluntary religious opportunity during ing service that donations service, i.e., way required passing a collection to attend the are no plate, elects who attends the church service and does not transform one Indeed, imagine into an invitee. we make a donation from a licensee many religious find it offensive to have their volun individuals would part tary regarded as of a business or commercial to a church donations v Holland Abundant Dissenting Opinion by Kelly,

conclusion recognize majority jurisdictions We that a con- sidering adopted the issue have invitee def- inition set forth in 332 of the Restatement. How- exercising authority, ever, in our common-law our simply role is not to “count heads” but to determine which common-law rules best serve the interests of Michigan Michigan citizens. We believe that is better by recognizing served that invitee status must be visiting founded on a commercial premises. owner’s persons

For the above stated reasons, we hold that pur- on church for other than commercial poses Accordingly, are licensees and not invitees. we Appeals. reverse the decision of the Court of We Appeals remand this case to the Court of for consid- by plaintiff eration of the other issues raised in her appeal which were not resolved the Court of Appeals light analysis present of its of issue.

Weaver, C.J., and Taylor, Corrigan, and Markman, JJ., concurred with J. Young, (dissenting). majority’s J. I concur with the

Kelly, chronicling appli- of the facts and its statement of the agree, cable standard of review. I also, with its recita- categories persons tion of the three common-law who enter the land or of another. However, majority’s opinion. I dissent from the remainder of the transaction, gift religious rather than good as a intended to aid various works. Mich

Dissenting Opinion Kelly, enter individuals who is whether The issue purposes property are for noncommercial another’s purposes determining of the standard of invitees for possessor We owes to them. owner or care solely where invitee status arises never held that have visiting the owner’s there is a commercial premises. long recognized and we have Instead, commercial-purpose provision applied and both the public-invitee provision Torts, 2of Restatement majority’s classify § as invitees. The 2d, 332 to visitors identify Hurley,1 McNulty visitors as to reliance on only they visiting are for a commercial invitees purpose when majority’s rejects misplaced. action recognized principle Michigan of law.

A major up statutes make The common law and the portion Michigan. § 3, Const art of the law of of definite rules

“The common law does not consist absolute, fixed, and immutable like the statute which are body law, principles which are but it is a flexible susceptible adaption to, among meet, designed and are conditions, institutions, public policies, things, other new mores, trade, practices, changes usages and com and pro inventions, increasing knowledge, merce, as the may society may require. So, changing gress conditions Grove rights law . . . .” give rise to new under the [Beech Comm, Rights 405, 430; Investment Co v Civil Law, 2, pp quoting CJS, (1968), 15A Common NW2d 213 43-44.1 attempt categori- ...

“The Restatement is cally law.” YoderCo the content of the common recite 1957). (Fla, 97 So 2d 185 *15 609 v Holland Abundant Dissenting Opinion by J. Kelly, Liberty App Co, 386, 390; Mut Ins 284 (1979). NW2d 810 Section 332 of the Restatement provides:

(1) public An is either a invitee or a business visitor.

(2) person A invitee is a who is invited to enter or remain on a land as member of for a public. which the held land is (3) person A business visitor is a invited who is to enter purpose directly indirectly or remain for a on land or con- dealings possessor nected with with business of the land.

Section 332 of the Restatement is consistent with Michigan. common law of pertains law, Our common as it has invitees, developing been since cases, 1872. In we numerous recognized applied have a rule that is similar to 332(2). Long ago, that contained in subsection in Har greaves recognized v Deacon,2 this a Court distinction duty trespasser between the owed to one who enters another’s under inducement Hargreaves, right. supra or a lawful at 9. The distinc required something permission. tion more than mere damages, Id. beTo entitled to the visitor had to have property. been invited the landowner to be on Id. at

Notably, liability, for the landowner to incur require Hargreaves did Court not on be property solely pur- a landowner’s for a commercial pose. damages It stated that suit for can lie when 25 Mich 1 Mich

Dissenting Opinion Kelly, *16 by personal invita- injured to come party has been induced by there, brings him or by employment which tion, or general business, place or of resorting there as to law- or others whose to customers held out as resort (empha- at 5 may to visit there. lead them [Id. ful occasions added).] sis recognizing Hargreaves basis for formed the

Thus, by could become which a means several 442, 450; Sleziak, 383 See Preston v invitee. Kresge (1970); Co, 324 Mich v S S Polston NW2d 759 Douglas Bergland, (1949); 575, 578; 37 NW2d 638 (1921). NW 819 380, 387-388;185 216 Mich long ago, this Co,3 v Flint & P M R in Sheldon Also although applied it doctrine, Court plaintiffs identify decedent it as such. The did not property defendant’s to enter the was a child induced by playing had no at 173. The child there. Id. a band particular was not defendant and business with the pecuniary gain of the defend- for the on the by the there, he was struck at 177. While ant. Id. at 174. and Id. defendant’s train killed. naturally cal- that the music was

The Court found should have a crowd. The defendant culated to attract anticipated provisions to avoid that and made death. Id. at 177- in the child’s hazard that resulted jury question remained whether the held that a 178.It degree of care owed the had exercised the defendant plaintiff’s Id. at the circumstances. decedent under merely Notably, not label the child the Court did any pecuniary despite bene- licensee, the absence presence on the defendant from the decedent’s fit to property. we can infer that the Thus, Id. at 177-178. its 59 Mich 172; 26 NW 507 v Holland Abundant Dissenting Opinion Kelly, determined that the decedent could be classi- Court alone, an invitee the basis of invitation fied as on being a commercial on without property. quoted In this Court former Justice Cooley

Blakeley v White Star Line4 to state our common-law of an definition invitee: keep premises obligation is under no his safe

“One hand, trespassers. for the visits of On the other condition expressly implication when he or invites others to come premises, any upon his whether for business other reasonably purpose, duty it sure that he is not is his to be inviting danger, them into that end he must exercise ordinary prudence care and to render the reasona- *17 bly supra [Blakeley, quoting safe for the visit.” at Cooley, Torts, p (emphasis added).] 605 Particularly significant the fact that Justice COOLEY is by which identified two different means one could be by finding per- (1) classified as an invitee: that the upon business, was invited or son by any finding (2) was that the invited purpose. other Id. the basis of Justice definition of an

On Cooley’s Blakeley expressly invitee, Court formulated Pecuniary applicable is sufficient. rule: “Invitation profit Thus, Id. at to the owner is not essential.” Blakeley, again recognized that our common we require not for one to law does commercial 5 invitee.4 be an 4 635; NW 154 Mich 482 majority completely ignores Blakeley an invitee. definition of The “appear” support a are several cases that commer It states that there recognizes purpose requirement. that there are cases Ante at 598. It cial But, suggestive invitee definition. it of the Restatement’s that are Mich

Dissenting Opinion by Kelly, J. Forty-one years supra, later, Polston, this Court recognize assign continued to that it could invitee sta- tus on the basis of invitation alone. It derived the fol- lowing definition of an invitee: Hargreaves Deacon, [supra], appears From it that dam-

ages injuries private premises for accidental sustained on resulting negligence may from the of the owner not be theory recovered one on the that he is an invitee “unless party injured by personal has been induced to come invitation, by employment brings or there, which him resorting place business, there as to a general or of customers,” resort held out as [Polston, et cetera. supra (emphasis at added).] Only after the Court concluded that the did not fall within the definition of an invitee did it confer licensee status on him. Id. supra, again

In Preston, we find that the licensee- invitee distinction does not turn on whether the expectation pecuniary gain invitor has the of a from the invitation. Id. at “[I]n 449-450. this state the status only by theory of an invitee is tested not of eco- upon concept nomic benefit, but also invita- (emphasis added). tion.” Id. at 450 majority argues “internally that Preston is point.” inconsistent on this Ante at 599. However, a reading analysis close of Preston indicates that its actually consistent with our common-law rule and the Restatement definition of a invitee. *18 finds that the contours of the definition are difficult to discern. While the point may contours of the definition to clarity, this not be a model of I ask regarding what is difficult to discern Blakeley the statement that “[pecuniary profit to the Blakeley, supra owner is not essential”? at 639. statement, scarcely From that one Michigan can fail to discern that law require purpose does not a commercial for someone to be classified as

invitee. Abundant Holland Dissenting Opinion Kelly, guests social whether Preston,

In we considered licensees. were invitees or to another’s home invited relied on Genesee Appeals had The Court of to hold that Payne6 & Trust Co v Bank Merchants as an invitee. guest the social law classifies Michigan supra at 447. Preston, Merchants Bank rejected the Genesee

This Court Appeals. 383 Mich reversed the Court of decision and doing, In so we stated: may when there is a common invitation be inferred “An object advantage, a license when the is or mutual interest pleasure using it. of the ‘To the mere or benefit implied invitation, distinguished as from a under an come purpose license, must come for a con- the visitor mere occupant with the business with which the nected permits premises engaged, on or which he to be carried mutuality of interest in the sub- there. There must be some par- relates, although ject to which the visitor’s business object may of the visit not be ticular business which is the occupant.’ benefit of the for the “ a visitor who is a mere licen- ‘The distinction between one who is on the invitation turns see and brings there, largely that him on the nature of the business pre- of the which than on the words or acts owner rather ” Cooley, coming____’ quoting his at Torts cede [Id. (4th ed), § 440.] majority quotation from latches onto

Cooley proof classifies a visitor as Michigan as only a commercial an invitee when there is However, majority the visit. Ante at 600. quotation. The Preston the context of the ignores Cooley preserve the historical dis- quoted Court Preston, and invitee. guest between a social tinction App 204; 148 NW2d 503 *19 614 Mich 591 Dissenting Opinion by J. Kelly, supra quotation provide at 448. The was not meant to general assigning status,to rule for invitee visitors in all other situations. opinion, quoted §

Later in its the Court 332 of the general Restatement as the definition of an invitee. Id. at 450. It stated that the Restatement “definition fairly represents pertaining the law of this state legal what constitutes the status of an invitee.” Id. at (citations omitted). 451 The Court then identified that accompanying § the comment 332 states that invitee status under the Restatement definition does not apply “ guests. guest to social Id. at 450-451.A social public upon

‘does not come as a member of the premises public puipose, held to the for that purpose directly and he does not enter for a or indi- rectly dealings pos- connected with business with the ” quoting sessor.’ 451, Id. at 2 Restatement Torts, 2d, § 330, comment h. Thus, the Court held that social guests classify were not invitees and went on to them as licensees. Id. at 453.

Comparable Michigan appellate cases decided after exclusively Preston have focused on the business provision They § invitee of 332.7 did not consider the public provision § invitee of 332. In each, however, it 7 Stanley Square Cooperative, v Town See App 143, 147; 203 Mich 512 (1993) (“The distinguishing NW2d 51 duty characteristic that fixes the depends upon whether the pecuniary licensee’s visit is related to the inter possessor land”); ests of the Badalamenti, White v App 200 Mich 434, 436; (1993) (“To invitee, plaintiff’s presence NW2d 8 be an on activity defendants’ land must have been tangible related to an of some Combs, defendants”); benefit Doran v App 492, 496; 135 Mich (1984) (“An NW2d 804 premises invitee is one who is on the owner’s for a purpose mutually Partridge parties”); beneficial to Danaher v both Creek Country Club, App 305, 312; 116 Mich (1982) (“[A]n 323 NW2d 376 invitee is one who purpose mutually is on the owner’s for a beneficial Passino, parties”); to both Socha v App 445, 447-448; 105 Mich 306 NW2d (1981) (“An may individual can reasonably be an if invitee the visit be Abundant v Holland Dissenting Opinion Kelly, provi invitee unnecessary to consider was was established on status because invitee sion, property owner. an economic benefit basis pro- to consider further In order a case in which liabil- we had to await vision *20 injured party basis of an premised on the ity was Auto- Roberts v See, e.g., invitee. public a being 374 NW2d 905 594, 611; 422 Mich Co, Ins Owners we should basis, that presents This case it. provision invitee to apply hesitate to not invitee status concept that above, the As identified to, or an by an economic benefit either is determined is well established property owner by, the invitation law as the recognized law. It has been in our common Leveque v in Preston. See since 1970 Michigan NW2d 675 App 127, 129; (1972); 199 Leveque, 41 Mich 1976); Grad, (ND, 246 NW2d Sendelbach n 54. In Liability, 88, p 442, 2d, Am Jur Premises monetary, business, commercial, anticipate or other a said to confer occupant”). tangible benefit supra co-op Stanley, (the guest a resident was an invitee n 7 of See exchange giving co-op pecuniary gain in the resi obtained because the White, supra (the question right visitors); n 7 for the to license dent the babysitter slipped jury unpaid who on ice at the decide is whether an supra (a invitee); Doran, n 7 former mother-in- was an defendant’s home driveway returning from while children fell on the defendant’s law who pecuniary because of the bene husband’s home was an invitee the former Danaher, supra (the plaintiff defendant); was n 7 fit received play golf at the defendant’s course an invitee when he arrived deemed injured Socha, supra (the plaintiff in the golf); was a licensee when n 7 him, removing piece furniture that benefited while defendant’s house defendant). provided no benefit to the but majority regard especially with to the cases cited is true This liability recognized at for churches. See ante Appeals which courts have the visi- the Court of classified In each case this Court or 601-602. from received a commercial benefit invitee because the church tor as an rely simply presence. was no need to on the con- Id. There the visitor’s apply cept invitee definition. invitation and Mich Dissenting Opinion by Kelly, interpret implicitly adopting fact, I would Preston as the Restatement definition of an invitee. majority argues that issue “whether to

adopt ‘public the Restatement definition of invitee’ was not before this Court in Preston . . . .” Ante at required 603. However, in that case we were to con- guest sider whether a social was invitee or licen- supra considering Preston, see. at 445. In issue, obliged we were to examine the definition of an invi- guest tee and social to determine whether the two compatible. were at We Id. 450-451. determined that they guest not were and that the of a status social more consistent with that of a licensee. Id. at 451-452. Thus, our discussion what constitutes an invitee was essential to the resolution of the case.

Accordingly, adopt I find that the issue whether to squarely the Restatement definition of an invitee was apply before Court in Preston. I would Preston as precedent, binding on this case.9

B majority rejects public provision the invitee of adopts § reasoning 332 and the contained in the Flor- that, instances, adopted I note other we have Restatement sections formally identifying doing as the law of this state without that we were so. Analysts Accountants, Appraisers Detroit, See Senior & Ass’n v 399 Mich 449, 458; Accountants, 249 NW2d 121 In Senior it was sufficient applied for us to have mentioned the and Restatement section it to that recognize adopted Dep’t case for later Courts to it. See Nummer v that we Treasury, 557, 534, 2; (1995) n 533 NW2d 250 of J., (Mallett, dissenting). adoption Accountants, employed Similar to the manner of in Senior we Preston applied we § mentioned 332 and then it to find that the supra Preston, Therefore, was disagree not an invitee. at 451. I with the majority adopted pro- when it states that we have never invitee § vision Abundant v Holland Dissenting Opinion Kelly, supra, McNulty, with more consistent as case of ida McNulty, legal 604. In Ante at tradition. state’s our Supreme an to be classified that, held Court Florida property for a been on must have invitee, one puxpose that benefited commercial or material plaintiff’s rejected the The Court at 188. invitor. Id. a bene- argument received church that the defendant worship presence service, at a his fit from Id. at 189. him a licensee. labeled recognized century, Michigan has a For over when on an invitee classified as can be one pursu- commercial invitor’s supra. Hargreaves, Thus, invitation. See ant to an princi- contrary recognized McNulty to runs decision pur- by imposing Michigan ples a commercial law designation requirement pose an invitee. to the expressly is suffi- stated, “Invitation Court has This Pecuniary profit is not essential.” to the owner cient. majority’s supra Blakeley, reli- Therefore, the at 639. misplaced. McNulty on ance rejected the has Florida itself Furthermore, Lunney, McNulty 261 So 2d 146 v See Post decision. Supreme (Fla, 1972). Court Florida Post, In provision. including adopted McNulty pointed mutual that the It out Id. at 148. potential to and had the was too narrow test benefit unjust Id. at 149. results. cause recovery damages prohibit due example, it would For “window-shopping” ordinary visitor to negligence a recovery who made store, permitting to a while results, and similar these purchase, small. To avoid however theory been strained has economic benefit “the Montgomery &Ward point.” [Id., quoting Smith breaking *22 App, 1970).] Co, 195, (Fla So 2d Mich Dissenting Opinion by Kelly, applied public provi- The Florida court the invitee §of sion 332 to the case. Id. at It 148. concluded that the was an she invitee because had been property opened invited enter to members of the public for tours. Id. at 148-149. recognized Michigan

The law of is more consistent in with decision Post than it is with the decision McNulty. long recognized in We have that one could benefiting being be an invitee without owner purpose. prin- on ciple for a commercial That public provision is contained in the invitee of § Therefore, as the Florida did in Post, court this public provision Court should find that the invitee applicable plaintiff.10 § 332 is to this

c Michigan’s definition of a common-law is invitee § § identical to that contained 332 has implicitly, adopted by been, at least Preston. How- agree majority ever, even if I were to with the that the public policy sup- Restatement rule is not law, ports adoption of the Restatement view at this time. previously stated, As body our common law is a flexible principles adaptable pub- changes and policy. supra. application lic Beech Grove, The public provision entirely invitee to this case is consis- responsive with tent that view. It is to implicated opened interest that is when are majority recognizes jurisdictions adopted that most have provided However, definition in 332. it states that our role ” simply agree is “not to ‘count heads.’ Ante at 607. I that we should not “simply heads,” “bury count but neither we should our heads in the sand” recognizing public-invitee to avoid that our law common includes the defi of an nition invitee. *23 v Holland Abundant Dissenting Opinion by J. Kelly, public. to the Furthermore, provides § greater protection to the public unduly without burdening property owners.

I agree with the Indiana Appeals Court of when it stated: public

The invitee test set out in Restatement section 332(2) require occupant open premises would that the his public to the segment Thus, or to some broad it.of it would not extend guests. premises invitee status to social When opened public, are their begin use and condition public interest, affect the so that it is reasonable for courts impose upon occupant a standard of reasonable care public toward those members of the pur- who enter for the pose they for Prosser, which were invited. visi- [Business invitees, 573, tors and 26 Minn L R (1942)]. occupant The property; not lose does control of his he can entry withdraw the invitation or restrict as he sees fit. duly Id. Neither does he owe a of reasonable care to the public general. require The test would further that the premises particular visitor enter the for the occupant which the encouraged public has to do so. It is this latter fact which raises the inference that the occu- pant keep will use premises reasonable care to safe for the visitor. public Given the recognition interest involved and our of implication safety public which arises when the of encouraged premises particular to enter purpose, for a we public conclude that the proper invitee guide test is a determining invitee status. v Hebrew [Fleischer Orthodox Congregation, (Ind App, 1987).] 504 NE2d

CONCLUSION provision 332 accurately § reflects the common law of Michigan. It was adopted 462 Mich 591 Dissenting Opinion by J. Kelly, applied here. this Court in Preston and should be public policy of

Furthermore, it reflects the sound protecting are of the when members open to them. judgment of the Court

I would affirm Appeals. the trial This case should be remanded to jury in which for a new trial is instructed court according provisions to both definition of an invitee. J.,

Cavanagh, with Kelly, concurred