*1 App74 40 TAYLORv MATHEWS of Court Negligence—Recreational Use—Summary Judgment. 1. proper Summary judgment plaintiffs was for defendants where pleaded only ordinary negligence and admitted that their mi- son, injured nor was when he dove who into shallow water in gravel pit, paid no defendants’ consideration to defendants for (MCLA300.201). premises of recreational use defendants’ Negligence—Trespassing Children—Age—Realization 2. of Risk. age trespassing negligence important The in a of a child action is does, only expected to, as it bears on whether he and can upon premises trespassing; risk on realize the which he is undisputed facts, presentation age, absent a of is no fixed law, expected a matter at which child does and can be any particular judge realize risk the best rule is to each upon give plaintiffs opportunity case its own merits an present their case. Negligence—Trespassing 3. Fact. Children—Question Questions depositions, pleadings, fact were raised interrogatories answers to which showed that defendants knew continually intruding upon gravel pit, children were their partially water, purposes diving filled with into the pit swimming it; condition was dangerous; diving pit the use at board was dangerous; gravel that the board was allowed to at the remain pit and that defendants knew should have known that [8, [9] [6] [2] [7] [5] [4] [3] [1] 57 Am 57 Am Jur 10] 57 Am 57 Am 57 Am 57 Am Jur 57 Am Jur 57 Am 57 Am Jur Jur Jur Jur Jur Jur 2d, Negligence 2d, Negligence Negligence 2d, Negligence 2d, Negligence 2d, 2d, Negligence 2d, Negligence 2d, Negligence References 2d, Negligence for Points 209§ § 110. § 72.§ § 124. 45.§ § 102 et 125. 364 et 36§ et et seq. seq. seq. in Headnotes seq. board; using the that defendants were knew that the children September, pit plaintiffs’ lower in in the when water level pit; injured into the minor was defendants had *2 resulting by complaining ability harm to avoid to area, patrolled by removing diving officers sheriff whose taking prevent being placed by means to its hoard and area, fencing by instructing again, by their watchman area; trespassing deny access children to the and that diligence such care and defendants failed to use to avert the diving danger pit, although to the children into the threatened ordinary mind that it must it would seem have been likely prove apparent was that the result disastrous to another. by McGregor, P. J. Negligence—Gross Negligence—Trespassers.
4. diligently keep trespassers A landowner who endeavors to off his trespasser wilfully disregards to a who land is not liable no- fences, barricades, then, trespassing signs, by and who acts, negligently injures himself; positive wilful and the rule of liability, proper engages danger- strict while for one who in a activity, apply performed ous should not to one who has no only "negligence” affirmative acts and whose act of is to be the upon, unfortunate owner of land which others seek to come regardless positive of the acts which the owner has taken to prevent trespassing. such Negligence—Gross Negligence—Trespassing 5. Children. gross negligence guilty by failing Defendants were not prevent trespassing 15-year-old boy diving diving a from from a gravel pit board into their water-filled where defendants had blockades, posted no-trespassing signs, erected and had built prevent plaintiff trespassing fences to and those like him from property, on their defendants did not that know the water was diving pit, shallow under the board at the had grade, swimming been a swimmer since the 5th had taken lessons, diving water, taught had been how to dive into shallow previously gravel pits had been warned his father were and, dangerous, injury, plaintiff on the date of his dove from diving ascertaining board into the water without ñrst making and, any depth effort to ascertain water so doing, pond, causing injuries. struck the bottom of the his Negligence—Wilful 6. Misconduct—Elements.
Wilful and wanton misconduct exists where the actor has inten- App 40 tionally disregard done an of an unreasonable act character him, obvious, or so of a risk known to that he be must taken it, great injury highly been and so have aware of was usually
probable; accompanied by the act is a conscious disre- consequences. gard of known Negligence—Trespassing 7. Children—Ponds. ponds private property, legitimate Pools maintained for reasons, things” are "common which themselves are not dangerous, dangerous trespassing made but are because chil- dren use them. Negligence—Trespassing Duty. 8. Children—Ponds—Landowner’s duty partly-filed pit, gravel A landowner had no drain a even though possibility trespassing might a there was a child by swimming pit. injured diving in or into Negligence—Prior 9. Occurrences—Different Cause. drownings prior The fact that had occurred in defendants’ water- bearing no on whether filed had defendants knew board, board, potentially dangerous used as *3 placed over in that was shallow water. Negligence—Trespassing Children—Duty to Warn. 10. duty 15-year-old boy Defendants had no warn a that the water might injure in their shallow or that he himself pit, responsible if dove he into the because defendants were not boy, swimming for the level of water and who had had diving lessons, either and knew or should known of have dangers into shallow water.
Appeal Genesee, from Baker, John W. J. Sub- mitted (Docket 13, Division 2 1972, October at Lansing. 10522.)
No.
April
Decided
1972. Leave
to appeal denied,
Complaint by Taylor, William for himself and as next friend of Delmar and Taylor, by Louise Tay- lor against Mathews, C. Harvey Mathews, Earl L. Mathews, E. Harry Mathews, and Benjamin F. and Earle, Irene C. negligence. for Summary judgment for defendants. Plaintiffs appeal. part, Affirmed part, reversed and remanded instructions. Weinstein, Gordon, G, & Kroll P. plaintiffs. for Gault, (by Hill), & Bowers Guy Davison H. for defendants. J., P.
Before: Holbrook Valkenburg,* JJ. Van J. This cause of action results
Holbrook, from plaintiffs’ minor injuries sustained son when he dove from board attached a tree and struck pit. his head of a gravel pond on the bottom The is located in County Genesee owned defend- ant Irene Earle. The area has C. been under lease since February defendants C. Harvéy Mathews, Mathews, Benjamin Harry F. E. Ma- thews, Mathews, Earl L. doing business Mathews Earl L. Company. Gravel Mathews now deceased. mishap
The place September 19, 1965, took when Delmar then 15 Taylor, years of age, accom- panied by companions, three went to the aban- pit pond doned to swim. The had not been used its purpose gravel intended pit for a number of years but was frequently used as a recreational swimming place for more than 25 years. 18, 1968, September
On suit was started in the Circuit Court for Genesee County charging the 20, 1970, defendants with negligence. On May defendants for summary judgment moved contend- ing plaintiffs failed to state a cause action. The upon motion 300.201; was founded MCLA MSA 13.1485, which is set out below: *4 "No of cause action injuries any shall arise for person is on who the of lands another without paying person such other purpose a valuable consideration for the fishing, hunting, trapping, camping, hiking, * judge, sitting assign- Appeals by Former circuit on 6, Court of pursuant ment to Const art 23 as amended in 1968. App 74 use,
sightseeing outdoor or other similar recreational owner, against permission, with or without tenant premises injuries unless the lessee of said or caused were negligence by gross or wilful and wanton ” owner; tenant or (Emphasis lessee. misconduct of supplied.) reserved its decision and The trial court allowed to file an amended plaintiffs days complaint. adding Plaintiffs amended Count II to their gross complaint alleged negligence and which wil- ful and wanton misconduct defendants which Delmar injuries Taylor. caused allegations of Count II1 of plaintiffs’ The main complaint: Amended gross negligence "20. That the willful reckless misconduct and following the defendants consisted of the acts and/or omissions: “(a) That said defendants knew or should have known of the unsafe swimming, conditions of the and areas used for of the areas, deep persons shallow areas as well as who and failed to warn those to-wit, they premises, your plaintiffs’ allowed to use said minor. "(b) provide adequate supervision, signs, That defendants failed to fences, safety may reasonably persons devices which other inform upon premises, premises who come said not fit for [sic] swimming. use for and "(c) That defendants failed to erect and maintain a fence or barri- Michigan cade around the excavation site in accordance with the provided, negligent statutes as such case made and as well as other proximate acts all and/or omissions were the cause of which plaintiffs sustaining injuries damages. "(d) knowledge dangerous That the had defendants situation required diligence ordinary which exercise care and to avert persons, plaintiff, harm to other such and failed to exercise said ordinary care. "(e) resulting That the defendants were able to avoid the harm to plaintiff of lishing premises may upon premises by and others who come the exercise ordinary hand, diligence care and and the use of means at estab- barricades, posting guards patrolling and other means prohibiting premises by persons the use of the such as plaintiff. "(f) diligence That defendants omitted to use such care avert danger ordinary which did then and exist when to the mind [sic] apparent diligence ordinary it was that failure to use said care and others, injury plaintiff. would cause such as the “(g) That the defendants did in fact cause artificial or allow said upon control, condition to exist said land within had actual their knowledge upon premises. that children and others came said “(h) That the defendants knew or should have known that the risk *5 Opinion of the Court (1) complaint were that defendants amended main- gravel pit which a contained tained water on a property; portion particular of the that the level of gravel pit during the water the varied of different gravel year; pit periods by that the of the was used youngsters in; others to swim that and there was a diving placed on a tree board which extended over by youngsters water, the which used the to involved, being readily apparent defendants, to those other than bodily did involve an unreasonable risk of death or serious harm to such children and others. age "21. of That reason and other children premises, youth who did in fact use said and because of their would readily dangerous not involved in the use of said discover the conditions or realize the risk premises coming or in within said area dangerous by made condition. its possessor property "22. That in fact the use to the of the involved herein, condition, maintaining eliminating and the burden of dangers slight compared persons upon the the are with the risk to those premises, plaintiff, knowing such as and that all this danger defendants failed to exercise reasonable or otherwise care eliminate the protect the children. "23. That defendants allowed be constructed and maintained a gravel large water with pit, great to accumulate allowed beaches, therein amounts of sandy allowed to be constructed and maintained diving swimming facilities, thereby enticing a board and other and public attracting general premises swimming for use aas area, and, such, was, fact, as was an attractive nuisance which dangerous to use as such and that defendants failed to warn the general public thereof, necessary steps prevent or take the general public plaintiffs’ using minor from jointly the same. severally duty "24. That defendants did have the operate proper prevent said in a safe and manner to becoming protect area from persons an attractive nuisance and to those your plaintiff upon premises such as who came from being injured negligent aas result of acts and/or omissions and defendants, willful and reckless grossly misconduct of well as the negligent acts and/or omissions the defendants. "25. negligent That as a result of the defendants acts and/or defendants, omissions and willful and reckless misconduct of as well grossly negligent defendants, as the acts and/or omissions of the their nuisance, duties, maintenance of an attractive and their breach of plaintiffs’ minor, Taylor, process diving Delmar while in the from diving board constructed and/or maintained the defendants herein, struck pit his head and back on the bottom of the on a ledge board, vicinity diving causing shallow thereby in the of said him permanent including injuries, sustain severe but not limited to vertebrae, severe fractures of various cervical as well as other related injuries.” App from; gravel maintenance of the pit
dive board to permitting remain used constituted place dangerous and to be *6 the use of required ordinary care condition which diligence injury avoid an to one of and to same; and further using the that all of youngsters (2) defendants; known to these facts were capable averting the injury defendants were to using care in plaintiff by ordinary the means (3) them; available to defendants’ failure in the injury to use such care resulted and that defendants were aware of plaintiff such possible injury. motion considering summary
In for judg- ment, had before it the pleadings, trial court interrogatories, depositions answers defendants, together three of the named with six depositions including of witnesses Del- Taylor. mar motion,
Upon renewal of defendants’ the trial opinion striking court rendered an Count I of the complaint granted summary judg- amended (miscalled judgment) ment an accelerated for the II complaint. defendants on Count of the amended ruling, grant From that and the court’s refusal rehearing, plaintiffs appeal. following appeal Plaintiffs raise the issue on this Court: plaintiffs
Have the set forth sufficient facts to state a cause of action in their amended com- plaint? I plaintiffs’ complaint charging
As to Count trial ordinary negligence, defendants with upheld court’s dismissal favor of defendants is plaintiffs because admit no considera- paid plaintiffs tion the recrea- defendants 300.201; tional use of MCLA premises, defendants’ 13.1485, Supreme our and because Court MSA has Michigan of Heider v Sugar in the case ruled (1965), Company, statute is to minors. applicable question the vital
We now come to whether plaintiffs’ complaint II Count when considered depositions with the answers to interrogato- mentioned, presents previously ries sufficient plaintiffs entitle to a grounds jury trial on claim plaintiffs’ that defendants were guilty of gross negligence or wilful and wanton misconduct. Torts, 2d, 339, p provides: Restatement possessor subject
"A to liability of land for physical trespassing harm to children thereon an caused upon artificial if condition the land "(a) place where the upon condition is one exists possessor which the knows or has reason to know that *7 trespass, likely children are to and "(b) possessor the condition is one of which the knows or has reason to and know which he realizes or should realize will involve an unreasonable risk death or children, bodily serious harm to such and "(c) the children youth because of their do not dis- cover the condition or realize the risk in involved intermeddling made coming with it or in within the area dangerous it, and "(d) utility possessor the maintaining the condition and the eliminating danger burden of are slight compared involved, as with the to risk children "(e) possessor to fails exercise reasonable care to danger eliminate the dren.” or protect otherwise the chil-
One of the opinions of Genesee reversal Bank Merchants & Trust Company Payne, v Mich (1968), 242-243 states as follows: original "Since adopted promul- section 339 was App 74 Institute that Law section has American gated by the 'young’ children. 2 Restatement beyond been broadened (1966), (Second), advises under 339 at Appendix Torts p 129: " changed been from first Re- has 'This section following respects: in statement " "young” eliminating the limitation to chil- By T. general agreement now be dren. There seems important only as it is bears on age of the child to, expected does, can be realize the he whether considerable number of are decisions risk. There in which the rule stated now applied to has been children (Here pages follow four age years:’ some of 13 over citations).” of recent following: appear Among these citations * * * years "17 length at question considered Hoff "The Co., Super 222; 38 NJ Refining Products Natural (1955), question the conclusion that the is A2d 714 'young,’ is to but the child be classified not whether be, is, young may expected too he
whether age risk; fixed limit.” appreciate the no 300.201; 13.1485 per- MSA The statute MCLA provided in this mits to recover action plaintiffs negligence or guilty gross are wilful defendants and wanton misconduct. negligence or wilful and wanton miscon-
Gross following exist when duct has been defined are present: conditions necessary injury to characterize "The elements wilfully wantonly inflicted are: case at bar as *8 " '(1) requiring the exercise Knowledge of a situation diligence injury to an- ordinary to avert of other; nary care and (2) ability resulting harm ordi- to avoid the at diligence use the means in the care (3) diligence to
hand; omission use such care ordinary danger, when to the avert mind it must be the threatened likely apparent the result 83 Mathews v Opinion of the Court ” Smith, Willett v prove disastrous another.’ 260 (1932); Bean, 113, McLone v 263 Mich (1923). Cursan, (1933); Gibbard plaintiffs Defendants assert have failed to pleadings in their or establish state under interrogatories and depositions answers to suf- a valid question gross ficient facts to raise negligence. granted herein was
Summary judgment by the II of plaintiffs’ complaint trial court as to Count 1963, 117.2. In 1 Honigman under GCR & Haw- (2d kins, ed), Rules Michigan Court Annotated pp 360, 362, it under is stated authors’ comments: cases, negligence though "In may even there be no facts, dispute quantitative physical as to the sum- mary judgment always inappropriate will almost be qualitative because issue of whether defendant dispute exercised reasonable care will be in and must jury, undisputed be left for the physical unless judge say facts a would that a directed verdict would be required—which say really negli- is to is no gence jury. issue for the In such summary judg- cases negligence ment has been allowed in cases and should Holtzoff, be. See Barron & Federal Practice and Procedure, [p 1232.1 § 106].
"It has been said that the test is the same as that deciding grant used in whether a directed verdict or judgment notwithstanding the verdict. See 3 Barron & Holtzoff, Procedure, Federal p Practice and 1234 at (numerous 75). cases cited at note If the record as a differ, whole is such that reasonable minds could there is no issue summary judgment should be granted. useful, The idea is applied but it must appreciation for the fact summary the motion for judgment evidence, is made at a time when there is no speak, so and before the record has made. The been motion for summary judgment has to be decided on the basis of verified forecasts of what the evidence will be. *9 App 74 Opinion of the Court slightest the doubt or mean "This does not summary in evidence makes the possibility of conflict enjoins Rather caution. And the improper.
judgment the be whether kind of carefully stated would more test developed, within the might be limits which record the and affidavits or other pleadings the indicated the motion for opposing sum- supporting and material mary judgment, give interpreted any to the benefit of party, opposing the would to reasonable leave an reasonable doubt might upon minds differ or upon which issue proper.” would be verdict which directed pleadings, interroga- answers to reviewing In the acknowledge tories, depositions, we and the plaintiffs in and defendants the facts claimed dispute. relate particulars are in We here certain pertinent us to some of the appears be what facts: defendants, Mathews, the in one of stated
Harry pits gravel he all deposition that considered his in his dangerous. Harvey depo- Mathews stated had a watchman for the they sition that hired machinery equipment, the and premises protect persons from the keep away but he was told to gravel swimming area. Two the defendants pit drowning had or they known stated Further, in drownings past. at the the they knew that the the defendants stated that pit in in gravel was lower level water July. in or attributed They late summer than June summers, dry evaporation, this fact in Flint which af- lowering level River pit. in the The gravel of water fected level depositions they defendants assert their no-trespassing signs, posted property put property, around cables erected fences However, pit. gravel the entrance to the across fre- girls the five who depositions boys quented pit swimming gravel Taylor of 1964 and July June and summer Delmar used the gravel pit, when signs present saw no they stated that fences *10 barring entrance and no cables property. deputies further stated that sheriffs They visited they often and were never told by not to they were dive in or officers swim defendants, any there. did of the their employ- Nor were, during period time, who this agents ees or gravel pit nearby working using at the road and others used to get subject pit, any girls ever tell gravel boys deposed they that were were not to use the period gravel pit. during All this of time the diving position according board remained its usual depositions youths was not re- moved. Mathews,
The deposition Harry one of the defendants, part shows in as follows: "Q. Going you back to when first over took property, property? you go did ever have occasion
"A. Yes.
"Q. purpose you go For what would over there? "A. Walk around it. “Q. your purpose walking What would be around
it? Well, "A. if maybe day gravel, some we would I need gravel. would look for ”Q. you people Did ever property? see other on that "A. Yes.
”Q.They weren’t company? associated 'A. They weren’t associated.
"Q. many On how occasions?
"A. A number of occasions.
"Q. long, All every summer you? summer didn’t ’A. Yes.
”Q. would people doing What these there? App Swimming, parking.
"A.
”Q.Picnicking and what not?
'A. Yes.
"Q. you Did ever see families there with children? No, "A. I don’t recall.
”Q.Any adults?
'A. Yes.
”Q.Teenagers? Kids, yes.”
'A. The deposition Mathews, of Harvey one of the defendants, in part: states "Q. prior you Now had had occasion to be on premises particular gravel of that site?
’A. Where the accident was?
"Q. Yes.
'A. I been on there several times. *11 ”Q. What purpose would be the your going on prior September there did specific, to be more what you go there for? go "A. I go there everyday, to home for dinner. ”Q. you Well did any see going activities on there? ”A. Yes.
”Q. type What of activities? People
"A. swimming, this and that.
"Q. Picnicking?
"A. I wouldn’t say they were or not. "Q. there, Were there youngsters families par- ents?
”A. I didn’t any. notice
"Q. Teenagers? suppose
”A. I some, there were I don’t know. ”Q. people There were you but identify can’t their age group anything?
”A. No. ”Q. Was that generally during used the summer purpose? They
”A. swam in the summertime. Court long practice go ”Q. did you And how of? know years. Probably
"A. ”Q. you go Sunday there on a Did ever the sum- mer?
’A. Yes. up
"Q. you by Stanley Did ever see cars lined Road? 'A. Yes. get
"Q. people gravel over pit? How would they over? Would walk
'A. There on both sides. ”Q. you any diving Did ever see boards around the area? Yes, diving "A. I seen a board there. * * * "Q. long is the you How when first time saw diving board? know, long ago.
”A. I don’t time ”Q. you it the time property? Was first first leased the they diving ’A. I think had the board there when we moved over there.
“Q. 1963? That would be ’A. Somewhere around there.
”Q. you When is the last time saw the board there?
"A. I don’t know. ( "Q. you got Do know it how there? Probably
'A. kids.” deposition Mathews, In the Benjamin one defendants, in part is stated as follows: ”Q. you prior Were people using aware to 1965 of *12 gravel pit Stanley area south of you Road that had the license to?
’A. Yes. "Q. right. All purpose being And for what itwas used?
’A. They swimming. was in there App 74 ”Q. you anybody first time recall being When is the swimming? "A. Way back.
"Q. Back when? Well,
"A. I can remember. far as go "Q. long—would prior back How to 1963? Yes, go way "A. it would back before that. "Q. knowledge, your long Based on own how was it swimming
used as a area? knowledge, my 'A. The it would best be at least 20 years longer. or "Q. During you time Okay. would be in the office prior you people your way did see to work your way going or on from home work about yards people see in the area Stanley south of Road? Going "A. home from work I would see them there
swimming. “Q. you anything stop Did ever do them from swimming?
"A. No.
”Q. you complain police? Did ever think my "A. I brother did.
”Q. you? Did
"A. No.” witnesses, Wadsworth, The other Cheryl Pamela Heit, Walter, Patterson, M. Grant A. Karen K. Heit, and Kenneth L. whose depositions were defendants, taken testified that children of all ages frequented the area in the summer and swam in the gravel pit; they would wave to employees defendants’ operating who were equipment and trucks back Stanley and forth on that, fact, Road and on some occasions defend- ants’ employees stop would lunch and have their in the area and swimming; watch the children *13 89 Mathews v Opinion of the Court employees of defendants waved they in the area and it were is they when regularly employees knew the area that defendants’ obvious children. used being was the issue presented, dispose In order 300.201; MCLA interpret MSA for us to necessary This originally was enacted by statute 13.1485. in 1964 to extend 201 and amended 1953 PA claims of against gra- one provisions non-liability purpose entering "camp- land for tuitously or other similar sightseeing outdoor ing, hiking, 199, PA 1. 1964 recreational use”. § enactment, there have been two only its Since In dealing with the statute. Heider cases reported Sugar Company, supra, Michigan v in favor of the defendant land- five to three ruled no opinions opinion There three owner. were signatures three of the Jus- receiving more than gross negli- was no claim of tices. In Heider there misconduct and the gence or wilful and wanton Negligence See Gross terms were not defined. It?, 16 L Michigan—How Wayne Gross Is Rev (1970). case, Magerowski The other v Standard Oil Com- (WD Mich, 1967), 274 F 246-248 pany, Supp wrongful-death action to recover for the death of a nine-year-old boy fishing who drowned while from permission. defendant’s dock without Defendant plaintiffs gross made a motion to dismiss count of negligence. gross negli- The court therein defined gence or wilful and wanton misconduct as defined Smith, v 2 Restatement supra Willett and cited Torts, 2d, The hereinbefore referred to. ruling court then on the defendant’s motion to plaintiffs gross negligence dismiss count of stated as follows: Michigan per A landowner in se immune is not
"[2] App Court injured by open from child an liability to a and natural condition. Detroit, Lyshak City (1958), "In Mich 230 opinion,
Justice Talbot Smith in a landmark set forth general principles Michigan which courts must *14 analyzing rights follow in and duties of landowners trespassing Although to ing children. not specifically decid- issue, quite Justice Smith indicated strongly that a distinction 'between the prem- mere of condition (a pond) ises into a dangerous child falls natural and a premises on by condition tion, caused the active interven- (the the affirmative acts of the owner child is carelessly by run down the owner’s horse buggy)’ is indulged in, a fiction which frequent be should not since after repetition begin them, courts to believe them, employing thus inequitable reach results. 351 Mich at 244. liability "He stated the real basis of a landowner to trespassing child follows: " community 'The has an in interest the life aof preservation child. The proper life is a factor to weighed against right
be
a landowner’s
to the exclusive
possession of
land
his
and the use he makes of it.
unreasonably jeopardizes
Conduct which
life is
society
offensive to our
and the fact that
the child is a
trespasser
only
weighed
is
one of the
elements to be
jury
in its historic scales.’
vented them from jury.” to a tled to have this issue submitted *15 of the fact 2 determine that view that We Torts, 2d, 339, has revised to Restatement been children”, "young the limitation eliminate age the of the child is accepted now that generally does, as it bears on whether he important only to, realize the risk. expected can be jurisdictions tort from other There are cases trespassing recovery injuries that allow for up years age.2 children to 16 We are constrained 2 35; Peabody Company, App 253 Hendricks v Coal 115 Ill 2d NE2d (1969). very 56 This case was similar to the instant case which age, injured boy, years, 16 was when involved a he dove into a 5-1/2 months who water, strip as a result mine area that was filled with apparently hit the sand of which he broke his neck when his head plaintiff against jury bottom. The rendered a verdict for the defendant, plaintiff Peabody judgment Coal Co. The verdict and appeal. was affirmed on 474; Contracting Company, 389 P2d Martinez v C. R. Davis 73 NM (1964). wrongful 597 case involved action for the death of This a tort intestate, age years, a child of 14 5 months. The boy attempting pond. drowned to cross an artificial App 40 rule, presentation absent a of undisputed facts, that age there is no fixed at which a child does expected can be to realize any particular risk, as a matter of law. We believe the best rule is to judge each upon case its own merits and in the instant plaintiffs case until have given been present case, opportunity their a proper result cannot be assured.
We are constrained to rule that a trial record might well developed under the pleadings, depo- sitions, and interrogatories (1) answers to showing that defendants knew children were continually intruding upon the limited area of land belonging defendants, i.e., gravel pit, for the purposes swimming in; gravel pit condition dangerous; the use of the diving board was dangerous; it was allowed to re- main gravel at pit and that the defendants knew or should have known that it was being used children; the level of the water in the gravel pit was lower in September when the occur- rence took place (2) than in the early summer; that defendants had the ability to avoid resulting harm by complaining to the sheriff whose officers patrolled area; by removing the diving board and by taking prevent means to its being placed again; by fencing the area and by instructing Co, Shepard Cicero App 290; State Bank v Dolese & 298 Ill 18 NE2d (1939). age This years, case involved a child of the of 14 1 month premises who drowned while on the of the defendant. There was an artificial water plaintiffs hole owned the defendant and decedent fell into the water and drowned. judge say Unless undisputed can evidentiary from the facts *16 that all Taylor, agree reasonable plaintiff, men would that Delmar age years whose was 15 at the time of the occurrence did or expected could have been to realize the risk involved in into gravel pit, the the fact that jury. the issue must be submitted to a As evidence of agree, not all reasonable men would so references are above, made to the cases cited in footnote 2 and the case of Hoff v Refining Co, supra. Natural Products the children access to the deny their watchman (3) the defend- question; in area limited diligence care and such to use omitted ants danger (using to the children the threatened avert into), considering when all to dive ordinary mind it facts, it seem would the result apparent have been must to another. disastrous likely prove negli has indicated that Court Supreme The being of fact negligence, questions gross gence and law, left to the determination are best than rather 373 Mich Ingram Henry, jury, case, Tien v (1964), in the doubtful particularly (1958), Barkel, from which we 351 Mich passage: this apply take and case—ordinary gross—is negligence doubt- "What always is not will burden and such case ful and what judges. This is so since the contro- perplex lawyers and applicable upon of law but upon rules versy turns not True, said—just it will be application to the facts. their (1886)] opinion Carver’s as was when [61 years ago—that this rule and 10 arrived threescore in to 'cases of doubt’ is itself one doubt addressed boundary jury verdict and it leaves the between approximate state of uncer- commanded verdict in an complaint agree, yet deplore not. The tainty. We negligence supplies underlying inherent law and jury in respective judge functions of reason for negligence certainty cases. We shall never attain demand, precisianists every of a 'slot for case’ by acting or judges will not aid the cause of truth speaking otherwise.” point proceed-
We determine that at this
II
ings,
presented
plain-
the issues
under Count
complaint
tiffs’ amended
are issues of fact which
in the case
permit plaintiffs
present
proofs
their
Manning
v R. J.
Com-
Beardsley
on the merits.
Stahlin,
Durant v
pany,
App
(1966);
*17
App 40 McGregor,
by
P. J.
Dissent
Anderson v
Gene Deming
(1964);
Mich 82
Sales, Inc,
Motor
(1963);
Affirmed reversed and re- proceedings manded further for inconsistent abide opinion. with this Costs to final result. J., Valkenburg, concurred. Van (dissenting). P. J. McGregor, Plaintiff alleges gross defendants herein are guilty of negli- gence they prevent because failed to plaintiff, 15-year-old from boy, trespassing on defendants’ despite property, the fact that defendants had blockades, posted erected no-trespassing signs, and prevent built plaintiff fences and those like him from trespassing property. defendants’ colleagues
How my question can find that a gross negligence respect exists with to one who has exercised more than is legally what termed "ordi- nary care” beyond me.
They land, that an hold owner who diligently keep land, endeavors to trespassers off his is liable to a trespasser wilfully who disregards no-trespass- fences, ing signs, barricades, then, and who acts, wilful positive injures negligently him- self. Such a rule of liability, proper strict while one who engages dangerous activity, has no place in system our of jurisprudence for those who performed have no affirmative acts and whose only act of "negligence” is to unfortunate owner of land which others seek to upon, regardless come positive acts which the owner has taken to prevent such trespassing. specific here,
As to the fact situation it is readily apparent plaintiff was not an immature infant of years, tender a fifteen-year-old boy but Pj J .(about pit. previously gravel to this had been
who 1965). ten He: and about in 1964 times ten .times since, grade, fifth and hád a swimmer been had Furthermore, lessons. swimming taken and'diymg to dive in shallow how taught had been *18 previously by warned his and had water beeh\ dangerous. There were was pits gravel that father that the defend- depositions testimony no known that have or should water ants knew diving board. under shallow was are here was we concerned with which pond The which had not been gravel pit an old abandoned pond, This many years. for used as public from any distance quite some roads located access, many years by had been used or area, despite efforts swimming as a public use. From time to discourage such defendants put up erected road blockades time defendants A fence existed at one time signs. no-trespassing by persons down unknown had knocked but been Defendants had also at- rebuilt. and was leading from the road paths tempted to block area, and with a piles of sand to the beach pathway entrance to a across the chain stretched leading pond. back to the injury, plaintiff of his went
On the date swimming. He swam across pond for recreational a few feet from the pond and reached shore out into "diving projected board” point where pond Plaintiff dove into the without the water. ascertain ascertaining making any or effort to first and, struck the doing, the water in so depth of causing injuries. his pond, bottom of facts that conclude from these My brothers on the question gross negligence there arises a part of the defendants. negligence gross
The exact circumstances App P. J. court; however, one have troubled more than there mind question is no my cannot be a question gross negligence when a defendant has dangerous not engaged activity in a and has exer- cised care degree which a reasonable man would in like or similar exercise circumstances.
Dean Prosser as regarding gross states follows negligence: originally appeared, "As it this very great negli-
gence, or the want even scant care. It has been described as a failure to exercise even care which a person courts, however, careless would use. Several nebulous, with a so struggling dissatisfied assign term point some more or less definite of reference to it, gross negligence requiring have construed wilful misconduct, recklessness, or such utter lack of all care as will be evidence of either—sometimes on the ground necessarily this must have been the intent legislature. But it is still true that most courts 'gross negligence’ consider that disregard falls short of a reckless *19 consequences, of and differs from ordinary negligence only degree, is, in and not in kind. There in short, accepted meaning; generally no probabil- but the is, ity used, phrase is signifies when that it more ordinary inattention, than inadvertence or but than less consequences; is, conscious indifference to other it that in words, merely departure an extreme from the ” added.) ordinary (Emphasis standard of care. Prosser (3rd Ed), 34, p on Torts 187. negligence”, "Gross as it Michigan, is used in Cursan, was in defined the case of Gibbard v 225 (1923). 319 The Supreme Court said: "In ordinary negligence, of plaintiff case if the guilty negligence, contributing has been of injury to brought, for which the action is cannot It he recover. is to avoid this rule contributory negligence and to excuse plaintiff gross of a negligence the doctrine is of usually invoked. 97 Mathews v P. J. defendant excuse negligence gross will "When In plaintiff? a case where of a negligence
contributory knows, ought, by the exercise defendant, who know, negligence of precedent care, ordinary plaintiff negligence does subsequent by his plaintiff, recovery in all the basis of is Strictly, this injury. an p gross 145. Such 20 RCL negligence. gross cases negligence gence, negli- called discovered sometimes also wilful or reck- negligence, wanton or. subsequent peril, clear chance doc- last negligence, discovered less trine, misconduct, rule. Other humanitarian and the incorrectly generally and kind, is also different known later. as shall see negligence, we gross Keller, [1893]; Kelley v 95 Mich Harper, v Richter Co, Marquette R Pere Fike v [1920]; Mich 404 211 Mich 167 Co, Railway v Detroit Knickerbocker [1913]; Ainsworth, 138 Mich v [1911]; Buxton 167 Mich (5 146) original.) (Emphasis in Ann Cas [1904].” in LaCroix approval quoted, excerpt was This Co, R Trunk Western Grand (1967). negligence is not gross
Thus, apparent it is hand, negligence the case at applicable all) (if prior at any the defendant involved, to make the in that he failed accident premises safe. on the it must be prevail is to
If the the defendant was conduct of grounds Gibbard, Su- supra, In "wilful and wanton”. the terms "wilful” also defined preme Court The Court said: "wanton”. another, or if his conduct wilfully injures "If one reckless
doing injury wanton or is- so thing, guilty of more than he is amounts to the same wilfulness, negligence. The act is characterized *20 inadvertence, negligence— it transcends rather than is different Gibbard, supra, 320. in kind.” the case quote [p then went on The Court App 40 74 P. J. Baker, R of Atchison Co 183; Kan 804; P (1908): LRA NS 427 charged properly "One who is with recklessness or simply is more careless wantonness not than one who is only negligence. His conduct guilty must be such as put class wrong. to The him with the wilful doer respect only in which his attitude is less blamewor- thy wrongdoer that, than intentional affirmatively wishing injure another, instead of he is merely willing to so. The difference do is that between intending him who casts a missile it shall strike it another and him who casts where he has reason to another, being believe will strike it does so indifferent whether not.” Co, In LaCroix v Grand Trunk Western R supra, said, Supreme Court gross "We conclude neg- that Gibbard’s definitions of ligence and wanton and wilful misconduct are the applicable Michigan common law in today.”
Thus, required the act predicate liability upon wilful and wanton misconduct is that actor has intentionally done an act of an unreasonable char- in disregard him, acter of a risk known to or so obvious, that he must be taken to have been aware it, great and so injury probable. was highly usually accompanied It is by a disregard conscious consequences. of known See also Prosser Torts (3d Ed), 34, p Torts, 2d, 500, Restatement § p 587.
Not only does defendants’ conduct come scope gross but, within negligence, as the defendants were not carrying on a dangerous ac- tivity, it is doubtful from the facts set forth in the depositions parties’ whether guilty defendants are of even ordinary negligence. ponds
Pools and on priváte property, maintained *21 99 McGregor, by P. J. Dissent reasons, have consistently been legitimate things”. objects These "common are be found themselves, dangerous, but are made not, so by trespassing their use children. because of only Rapids, of Grand City Co v 131 Peninsular Trust Dachille, 328 Graves (1902); Mich 69 571 Mich (1950). 74-75, Graves, supra, pp quoted
In Mississippi from and Ken- cases approval with tucky: " length and breadth of the land 'Scattered over lakes, natural; ponds and artificial and
are innumerable
man loses
occasionally
boy
or
his life while
If,
wading,
bathing,
body
in such
of water.
law,
fishponds, millponds, gin
the owners of
matter
bodies,
possible
ponds,
artificial
wherein
and other
drowned,
guilty
can be held
of action
boys may
same,
negligence
they
guard
inclose or
unless
few
able
utilities,
to maintain these
and to our
will be able
Thomp
condition will be created.’
minds an intolerable
Co,
651;
R
105 Miss
63 So
Illinois Central
son v
185; 47 LRA NS 1101 [1913].
"
out,
'Throughout
pointed
it is
with
the annotations
pools
ponds
exception,
maintained for
out
nui
legitimate purposes do not create such attractive
upon
liability
the maintainer
sances as will entail
injured by entering
infant
if
is drowned or
thereof
therein,
an
since,
ipso
the maintained condition was
dangerous,
only
of thé use of it made
facto
but
because
Louisville,
City
trespassing infant.’ Puckett v
by the
349, 355;
Ky
1126) Austin, [1907]; Preston v [1919]; Mich 194 Co, LeDuc v Edison Mich 86 Detroit [1931].”
While the instant case did not drown, that a holding landowner is not re- quired ponds to drain his land is equally appli- *22 Further, here. the fact that prior cable drownings particular pond had occurred in this has no bear- ing on the whether defendants had notice that the diving dangerous. board was potentially It might that, here, be added it was further not the diving dangerous board which was the condition, but rather the act of into the shallow water. alleges Plaintiff the shallow water was responsibility defendants’ and that defendants had duty plaintiff to warn the water was shal- low. This is patently contention Defend- absurd- ants are no more "responsible” for the condition of the shallow water than are they responsible for the amount of rain that or falls the heat of sum- mer, evaporated which some of the water. Further- more, just there no duty as is to plaintiff warn might that he (or, drown if he swims in pond for matter, a swimming a lake or pool), similarly duty no to warn might that he injure himself dives in if-he shallow water. The average fifteen-yeár-old boy who has had swim- ming is, and diving be, lessons ought lessons or to apprised of fully dangers. these Club, In O’Keefe v Rowing South End 64 2d Cal 729; Rptr 51 534; 830; Cal 414 P2d 16 ALR3d (1966), a bar, case almost identical to the case at Supreme California Court following stated the [pp 741-746]: 2d, "New Torts, 339, p section Restatement of [2 possessor declares: 'A is subject liability land to 197] physical harm trespassing to children thereon Mathews v P. J. (a) upon the land if condition by an artificial
caused upon exists is one which the the condition where place reason to know that children or has possessor knows (b) is one trespass, the condition and likely to are or reason to know has knows possessor which which involve realize will an or should he realizes bodily harm or serious to of death risk unreasonable (c) children, the children because of their such condition or realize risk do discover youth coming intermeddling within with or involved (d) it, utility to dangerous by area made maintaining the condition and the burden possessor of slight compared danger are eliminating the (e) involved, possessor fails the risk children danger care to eliminate the to exercise reasonable added.) (Emphasis the children.’ protect otherwise to emphasizes, this doc b section “As comment obligation possessor only a 'limited imposes on the trine falling duty prevent child, of a all short him, care but reasonable requiring harm foreseeable against may which be ex conditions as to those he himself,’ (Accord, protect Garcia pected to be unable to 107, 112; 338 P2d Soogian [1959], supra, Cal 2d *23 433). obligation duty or should or not an Whether such 'depends upon a of varia imposed, number moreover be ble question liability decided in factors. The of must be arbitrarily light by not of the circumstances and the placing of condition to the effect of all the factors all rigid categories type in on the basis cases of giving due involved without consideration particular in P2d situation.’ a 435.) (Id. 2d; p p 52 338 at With these at 110 of Cal rules in mind we turn to the record before us. meager, on cer- generally evidence is and
"Plaintiff’s proof. barely It is points on a failure of tain adequate borders support had to an inference that defendant know, observations, past through to that chil- reason pier likely trespass premises for dren were its and assuming swimming diving. But that purpose of drawn, it nevertheless legally inference could be would high only youths in their middle teens relate such school companions, is not a for there his young children of infants other shred evidence that App by P. J. trespass on were ever known to defendant’s property pier. off and dive its crucial, "This limitation dictated the facts is for (b) clause dangers of 339 of the speaks section Restatement of children, (a) referring to 'such’ back to clause possessor children who the 'knows or has likely trespass. reason (b), know’ are Under clause therefore,, precise question presented here is charged expecta whether defendant should be with the high youths tion that school in their middle teens fail would to realize the risk involved diving off its pier. matter, succinctly puts As Dean Prosser 'It is enough presence not may the child expected. danger There must also be unreasonable him if he If comes. the condition is one from which any danger reasonably such anticipated, is to be negligence protect against it, is no no in failure to him added.) (Italics (Prosser, liability.’ Trespassing Chil 452.) [1959], dren Cal Certainly L Rev there is always degree danger some thought because of youth plaintiff’s age lessness or may bravado a dive pier a ascertaining off without ñrst depth below, danger water appear but does not to have been an unreasonable one on the facts before us. This is where, not a example, pier case for a over apparently uniformly deep water rendered unsafe for shallow, submerged object only known to the land owner. pier Here defendant’s sloping extended over a beach, nothing and there was from which users pier justifiably could conclude surrounding bay bottom vary depth. did not likewise We high cannot youths conceive of school in their middle failing teens to realize that at least out to a certain point pier on such the water remains below too diving. shown, plain shallow tiff safe On the facts here (b) satisfy failed to the condition of clause of section (See Soogian 339. [1959], supra, Garcia v 52 Cal 2d 112-113; 433; 338 P2d Ry Herrera Southern Co Pacific [1961], 575.) 441, 448-449; App Cal 2d Rptr 10 Cal *24 added.) (Emphasis demonstrates, moreover, "The evidence knowledge had appreciation actual danger. of the (c) The condition of clause of 339 only section is fulfilled P. J. in the did not fact 'realize risk injured child the when varies, danger appreciate of ability 'The involved.’ there can be course, age the child and no of with the age of sufficient and mental child is recovery the if under circum- for himself the look out capacity to (Garcia Soogian [1959], v presented. stances [Citations.]’ 433.) 107, 112; 338 P2d As Dean 2d supra, 52 Cal reason for a rule which one basic explains, 'The Prosser trespassing from children distinguishes trespassing protect child to himself inability of the is the adults If he encounters. reason peril which against agreed exist, generally it has been does it. rule fails with The courts special policy of whole insistence that if the in their child very firm have been condition, understands fully fact aware is in carries, quite and is danger which appreciates it, position in no better than he stands to avoid able ’ understanding. knowledge and similar any adult with 427, (Prosser, [1959], Cal Rev Children L Trespassing added.) 461.) (Emphasis Although plaintiff’s age. fact we "The most obvious age limit beyond no which the laid down definite have age apply, of the child of section cannot rule important picture in total element remains an might an attractive nui- case. constitute each 'What 7-year-old child would be immaterial as to a sance high (Giddings 14-year-old applied to school student.’ 607, 612; App Superior [1951], Co 106 Cal 2d Oil 843.) 14, age allowing recovery Beyond the cases P2d dangers or such concealed unusual have involved high-voltage electricity (See, eg., caps. dynamite Prosser, [1959], Cal L Rev Trespassing Children 439-442.) increases, child age conditions 'As the recovery can under fewer which there become rule, point, probably until at some indeterminate this sixteen, longer any such beyond age of there are no 199.) (Rest c, Torts, p As conditions.’ 2d com outset, plaintiff just months at was three noted age at time the accident. He years short of 16 high sophomore year in half of his was the second school, receiving passing grades in all his and was 'healthy’ he agreed courses. His mother are way.’ Manifestly, we every 'normal and active *25 App 74 40 McGregor, P. Dissent J. dealing plaintiff 18-year-old not here with a such as the capacity of deaf mute with the mental a child of involved in Harris v Indiana General Service 206 (1934), Co. 351; 410. Ind 189 NE
"Nor was
a novice in the arts of swimming
diving.
swimming
He had been
for some three or
accident,
years prior
four
swimming
and had received
diving
high
in
lessons
school.
diving
His
experience
pool,
at
off the
school was
side of a
and it
would be unreasonable to assume his instructor did not
dangers
hitting
warn him of the
of
bottom. On this
important
moreover,
question,
we
indulge
need not
in
speculation: plaintiff agreed on the witness stand that
he
'if you
'knew’ that
dove into shallow water that that
do’;
wrong thing
was the
he
he
'always’
admitted
had
i.e.,
fact,
'early
known this
from
life.’
"Finally, plaintiff’s knowledge of the
actual
pier
conditions at defendant’s
was extensive. He admit-
having
pier
ted
off
dived
that same
some 10 or 15 times
period,
months,
over a
of three or four
doubtless under
varying conditions of weather and
day
tide. On the
of
pier
the accident
times,
he dived off the
three
four
side;
but
always
off the same
he did not recall
which side he dived off first. On the witness stand he
question,
'you
answered
the affirmative the
dove off
pier
both
you
sides of the
before
took the dive that
up
your
ended
right?’
accident.
Is
Even more
importantly, plaintiff also answered in the affirmative
question,
'you
deep
knew how
the water
then
was
place
at the
you
where
your
dove at the time of
acci-
dent,
right?’
is that
agreed
Plaintiff
that he 'knew’ that
depth
of the water was 'somewhere between five
feet,’
and six
and testified that at
time
accident he
about
was
5 feet 6 inches tall.
"On
persuasive
these
precedent
facts we find
in Gar-
Soogian (1959),
cia v
supra,
107;
52 Cal 2d
’’Here, Garcia, slight ’the chance as in was that a age’ ’appreciate fail plaintiff’s of would what child Indeed, plaintiff actually presented.’ risk was knew he diving generally in shallow water and knew what was incurring doing. by so Those risks were not risks he was merely plaintiff eliminated because was fortunate previous enough to have made several dives without Moreover, striking although bottom. the accident took appears place shortly midday, after the water to have opaque beyond been and the bottom not discernible edge plaintiff Thus was in effect aware of the beach. precisely that he did not know where the bottom was. Garcia, visibility inadequate that As the fact was youth should have rendered even more plaintiffs perception’ to a obvious age dangers without 'sufficient added.) lay (Emphasis of what ahead. Garcia, again light "Here as in ’In the of the undis- us, puted facts no for now before there is sound basis concluding plaintiff’s the condition which caused injury recognized constituting should have been as an great unreasonably bodily risk of serious harm which plaintiff appreciate was unable to discover or because of ’ immaturity. special duty It follows that no toward [his] plaintiff ownership arose virtue of defendant’s of the property. In duty, the absence of such a the case should jury. not be submitted to In Garcia we reversed judgment plaintiff ground for on the the evi- dence was insufficient as a of law to warrant matter 40MichApp74 P. J. governing recovery trespassing rule children; under the held, effect, that no reasonable trier of we fact could plaintiff found on the facts When, have for the shown. here, plaintiff’s at the the evidence close of as case so trial palpably insufficient court is mines that no deter- plaintiff sustained, for could be verdict duty to forestall the cost is the court and delay of proceedings by granting further defendant’s motion for added.) (Emphasis nonsuit.” O’Keefe The reasoning equally applicable here. plaintiff’s
On the pleadings basis and the depositions parties, there is no sound basis concluding the condition which caused plaintiff’s should have injury recognized been constituting an unreasonably great risk of serious bodily plaintiff harm which was unable to discover appreciate because of his immaturity. There special no duty owed because of ei- ther ownership defendants’ or leasehold inter- *27 in the Nor property. question est was any fact In Oxenger v regarding gross negligence. Ward, (1932), 502-503 stated: Johnston, "In Denman [1891], 'gross negligence’
term tional disregard was held to mean 'an inten- perform failure to duty manifest in reckless consequences affecting the life or property of It implies thoughtless another. also disre- gard consequences, without of any the exertion effort ” to avoid them.’ Defendants in the instant case not act did reckless disregard of consequences or without any effort to them. avoid
In the of a special absence owed duty of any question factual gross negligence, as to P. J. dismissing Count I correct trial court motion for summary defendants’ granting Michigan Sugar Heider v II. Count judgment (1965). Co, Mich 490 to affirm. I vote