Wert v. Afton , 190 Mich. App. 3 ( 1991 )

190 Mich. App. 3 (1991) 475 N.W.2d 403

WERT
v.
AFTON

Docket No. 127263.

Michigan Court of Appeals.

Decided June 18, 1991, at 9:05 A.M.

Sprik & Andersen, P.C. (by Dale R. Sprik), for the plaintiffs.

Bensinger, Cotant, Menkes & Aardema, P.C. (by Robert B. Aardema), for the defendants.

Before: HOOD, P.J., and McDONALD and FITZGERALD, JJ.

PER CURIAM.

Plaintiffs appeal as of right from an order of the Kent Circuit Court granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(10). We reverse.

Plaintiff Jason Wert was twenty-one years of age on July 26, 1987, and while riding a motorbike as a licensee^[1] in a gravel pit located on defendants' property, he hit a trench or groove. As a result of the accident, Jason broke his back, rendering him paralyzed from the waist down. On February 10, 1989, plaintiffs filed a complaint alleging negligence on the part of defendants for failure to maintain the property in a safe condition. The Attorney General and the Department of Social Services were allowed to intervene in the action.

In response to plaintiffs' complaint, defendants denied negligence and moved for summary disposition, arguing that they did not owe Jason a duty to maintain the gravel pit in a safe condition.

The trial court determined that the threshold issue was whether the defendants owed a duty to Jason, who had the legal status of a licensee. Concluding from the deposition testimony that Jason's familiarity and knowledge of the gravel pit negated any duty of the defendants, the circuit court granted defendants' motion for summary disposition. We reverse.

In reviewing a motion for summary disposition pursuant to MCR 2.116(C)(10), we must determine whether the kind of record which might be developed, giving the benefit of reasonable doubt to the plaintiffs, would leave open an issue of fact upon which reasonable minds might differ. Bowerman v Malloy Lithographing, Inc, 171 Mich. App. 110, 116; 430 NW2d 742 (1988).

In Preston v Sleziak, 383 Mich. 442, 453; 175 NW2d 759 (1970), our Supreme Court set forth the duty owed to a licensee:

A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,

(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and

(b) he fails to exercise reasonable care to make the condition safe, or to warn the licensees of the condition and the risk involved, and

(c) the licensees do not know or have reason to know of the condition and the risk involved.

At issue in the instant case is section c, commonly referred to as the open and obvious danger rule.

In Riddle v McLouth Steel Products Corp, 182 Mich. App. 259; 451 NW2d 590 (1990), this Court held that the rule that there is no duty to warn of open and obvious dangers is no longer viable in light of Michigan's adoption of comparative negligence. Id. at 266. The invitee's knowledge of a dangerous condition is properly considered, but not with respect to the invitor's duty to warn. Rather, an invitee's knowledge of a dangerous condition is to be considered in apportioning fault. Id. While Riddle involved an invitee's knowledge of open and obvious dangers, the principles established in Riddle were extended to licensees in Pressley v Bruce Post VFW Memorial Home, Inc, 185 Mich. App. 709, 710; 462 NW2d 830 (1990). In Pressley, the Court rejected the "no duty to warn of open and obvious dangers rule" as an absolute bar to recovery. Thus, the determination of whether a licensee knew or should have known of a dangerous condition should be a factor in determining recoverable damages under comparative negligence principles. Forche v Gieseler, 174 Mich. App. 588, 597; 436 NW2d 437 (1989). Consequently, the trial court erred in concluding that Jason's alleged knowledge vitiated defendants' duty to warn as a matter of law.

Unless the undisputed facts preclude a finding that defendants breached the standard of care which they owed Jason as a licensee under Preston, supra, Jason is entitled to a trial of his claim notwithstanding any contributory negligence. Forche, supra at 596. Because a determination of Jason's contributory negligence is factual in nature, it should not have been made by the court at the summary disposition phase. Murphy v Muskegon Co, 162 Mich. App. 609, 615; 413 NW2d 73 (1987).

Reversed.

NOTES

[1] If the instant case had gone to trial, defendants would have asserted that Jason was a trespasser. However, in order to avoid any factual dispute over whether Jason was a trespasser or a licensee, defendants conceded, for purposes of the summary disposition motion only, that Jason was a licensee.