Stitt v. Holland Abundant Life Fellowship , 229 Mich. App. 504 ( 1998 )

582 N.W.2d 849 (1998) 229 Mich. App. 504

Jill STITT, Personal Representative for the Estate of Violet J. Moeller, deceased, and Gilbert E. Moeller, Plaintiffs-Appellants,
v.
HOLLAND ABUNDANT LIFE FELLOWSHIP, Defendant-Appellee.

Docket No. 192208.

Court of Appeals of Michigan.

Submitted January 6, 1998, at Grand Rapids. Decided May 5, 1998, at 9:20 a.m. Released for Publication August 19, 1998.

Ronald J. Giddy, Holland, for plaintiffs-appellants.

Smith, Haughey, Rice & Roegge by Elizabeth Roberts VerHey, Grand Rapids, for defendant-appellee.

Before HOEKSTRA, P.J., and RICHARD ALLEN GRIFFIN and BANDSTRA, JJ.

BANDSTRA, Judge.

Violet Moeller (Moeller) was injured in defendant church's parking lot before an evening Bible study session when she tripped over a concrete tire stop. Moeller and her husband filed suit,^[1] claiming that defendant was negligent by, inter alia, failing to properly light the parking lot and failing to properly mark or position the tire stops that were placed there. The jury returned a verdict of no cause of action in favor of defendant.

Plaintiffs raise a number of issues on appeal, one of which is outcome-determinative. The trial court concluded that Moeller was a licensee, rather than an invitee, and instructed the jury accordingly with respect to the duty of care that defendant owed to her. Because there is no factual dispute concerning the purpose for which Moeller was on defendant's premises, Moeller's status as an invitee or licensee is a question of law that we review de novo on appeal. Reid v. Norfolk & W. R. Co, 964 F.Supp. 1249, 1252 (C.D.Ill., 1997) ("A plaintiff's status is a question of law if there are no factual questions present."); Swanson v. McKain, 59 Wash.App. 303, 307, 796 P.2d 1291 (1990) ("Where, as here, the facts surrounding the complaining party's entry upon the property in question are not contested, the determination of the legal status of that entrant as either an invitee, licensee or trespasser is a question of law."); In re Hamlet (After Remand), 225 Mich.App. 505, 521, 571 N.W.2d 750 (1997) (questions of law are reviewed de novo); cf. White v. Badalamenti, 200 Mich.App. 434, 436, 505 N.W.2d 8 (1993) (the issue of the visitor's status as an invitee or licensee is a question of fact if there is a factual dispute regarding the purpose for which the visitor is on the premises). We conclude that the trial court erred in deciding that Moeller was a licensee and remand for a new trial.

We begin our analysis with the definition of "invitee." Consistent with early English precedents, most American jurisdictions afforded invitee status to persons entering upon the property of another for business purposes and, accordingly, granted them greater protections than those afforded to licensees. Prosser & Keeton, Torts (5th ed.), § 61, pp. 419-420. This limited definition of "invitee" was adopted in the first Restatement of Torts. Id. at 420. In contrast, the second Restatement of Torts includes a second category of persons as "invitees," those who come onto property not for a business purpose but rather because of a public invitation extended by the property owner. Id. at 422.

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

(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.

(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land. [2 Restatement Torts, 2d, § 332, p. 176.]

This section of the second Restatement of Torts was cited by our Supreme Court in Preston v. Sleziak, 383 Mich. 442, 450, 175 N.W.2d 759 (1970). At issue in Preston was the status of social guests invited to a private cottage for a weekend visit. Id. at 444-445, 175 N.W.2d 759. Relying on comments under § 332 of the second Restatement of Torts, the Court reasoned that a social guest is a licensee rather than invitee. Id. at 450-451, 175 N.W.2d 759. In contrast to a "public invitee," as that term is used in the second Restatement, a social guest invited to a private residence "does not come as a member of the public upon premises held open to the public...." Id. at 451, 175 N.W.2d 759.

The Court in Preston did not explicitly state that it was adopting the second Restatement of Torts provision, including public invitees among those granted invitee status, as controlling Michigan authority. However, the Court did state that the second Restatement definition of "invitee," including the "public invitee" alternative, "fairly represents the law of this state pertaining to what constitutes the legal status of an invitee." Id. Further, the Court's analysis of the question before it assumed that persons entering property pursuant to a public invitation were to be afforded invitee status, although the Court held that a social guest did not fit into the public invitee category. On the basis of our reading of Preston, we conclude that § 332 of the second Restatement of Torts applies in Michigan and that, for purposes of the present analysis, an "invitee" includes a "public invitee" as defined in the second Restatement.^[2]

In Kreski v. Modern Wholesale Electric Supply Co., 429 Mich. 347, 359, 415 N.W.2d 178 (1987), the Supreme Court stated: "Essentially, invitee status requires ... benefit for the occupant.... The entrant must be on the premises for a purpose directly or indirectly related to the owner's or occupant's business." Defendant argues that Kreski thus rejected Preston's inclusion of "public invitees" within the definition of "invitees." We disagree. The Court in Kreski cited Preston and the second Restatement of Torts definition of invitee with approval. Id. Further, nothing in the Kreski analysis of the question presented, i.e., the status to be afforded firefighters, suggests that the Court intended to limit "invitees" to those entering premises with a business purpose. Kreski did not consider whether firefighters enter property for the benefit of the occupant or for a purpose related to the owner's business. Instead, the Court concluded that firefighters do not cleanly fit into the invitee category because they do not enter property by invitation, express or implied. Id. That analysis applies equally well to either the "public invitee" or "business visitor" definitions found in the second Restatement and adopted in Preston; both definitions apply only to persons "who [are] invited to enter or remain on land." Preston, supra at 450, 175 N.W.2d 759. Accordingly, notwithstanding the statement relied on by defendant, we do not conclude that Kreski undermines the clear import of Preston that "invitees" include both "public invitees" and "business visitors."

Having determined that Michigan law includes "public invitees" within the category of "invitees," we consider whether a church visitor like Moeller in this case is a "public invitee."^[3] Although we could find no Michigan precedent considering this question,^[4] courts in other jurisdictions that have considered the question^[5] uniformly conclude that church visitors are "public invitees." E.g., Clark v. Moore Memorial United Methodist Church, 538 So.2d 760, 763-764 (Miss., 1989); Fleischer v. Hebrew Orthodox Congregation, 539 N.E.2d 1 (Ind., 1989); Stevens v. Bow Mills Methodist Church, 111 N.H. 340, 283 A.2d 488 (1971). In Clark, supra at 764, the court concluded:

Members of religious associations, in general ... fall within the category of "public invitees," defined in ... § 332(2) of the Restatement.... Religious bodies do expressly and impliedly invite members to come and attend their services and functions. They hold their doors open to the public.... Therefore, a [visitor] who does not exceed the scope of a church's invitation, is an invitee while attending a church for church services or related functions.

For similar reasons, we conclude that Moeller in this case was a "public invitee" as that term has been defined by the second Restatement of Torts and adopted in Preston. Accordingly, Moeller is an "invitee" for purposes of determining the duty that defendant owed to Moeller while attending the Bible study session.

The trial court's incorrect decision, that Moeller should be considered a "licensee," resulted in improper jury instructions and inappropriate decisions regarding the evidence that was relevant and admissible at trial. Accordingly, we conclude that this matter must be reversed and remanded for a new trial. It is unnecessary for us to consider the other questions raised on appeal.^[6] We do not retain jurisdiction.

NOTES

[1] Although Violet Moeller was an original plaintiff in this matter, she is now deceased, and Jill Stitt, as personal representative for Moeller's estate, has been substituted for Moeller for purposes of this appeal. Further, Gilbert Moeller's claim is derivative of his wife's claim.

[2] In Socha v. Passino, 105 Mich.App. 445, 306 N.W.2d 316 (1981), another panel of our Court considered Preston and came to a more confusing conclusion. While stating that the Court in Preston "adopted" the second Restatement definition, including its "public invitee" alternative, the panel in Socha also defined an invitee as "one who is on the owner's premises for a purpose mutually beneficial to both parties ... [and where] the visit may reasonably be said to confer or anticipate a business, commercial, monetary, or other tangible benefit to the occupant." Id. at 447-448, 306 N.W.2d 316. Socha has thus been cited as indicating that Michigan law limits the definition of "invitee" to those who come upon the land of another for some "business" that is "of at least potential pecuniary profit to the possessor." Prosser, supra at 420 & n. 18. We are not bound by Socha, MCR 7.215(H)(1), and to the extent it may be read to interpret Preston differently, we reject its analysis.

[3] The trial court incorrectly limited its analysis to a determination whether Moeller was a "business visitor." It did so primarily relying on McNulty v. Hurley, 97 So.2d 185 (Fla., 1957). McNulty is certainly not binding on Michigan courts. Further, it no longer represents good Florida law following precedents in that state adopting the second Restatement of Torts definition including its "public invitee" alternative. Heath v. First Baptist Church, 341 So.2d 265, 266 (Fla.App., 1977).

[4] As the parties agree, the available Michigan precedents have only considered persons entering church property to participate in a business or economic activity being conducted there. Manning v. Bishop of Marquette, 345 Mich. 130, 76 N.W.2d 75 (1956) (bingo gaming); Kendzorek v. Guardian Angel Catholic Parish, 178 Mich.App. 562, 444 N.W.2d 213 (1989), overruled on other grounds in Orel v. Uni-Rak Sales Co., Inc., 454 Mich. 564, 563 N.W.2d 241 (1997) (a fund-raising carnival).

[5] The precedents cited by defendant from jurisdictions that do not recognize the "public invitee" alternative are, of course, inapposite.

[6] We do note, however, that we have concerns about the manner in which the trial court allowed defendant to introduce expert testimony notwithstanding plaintiffs' argument that the scientific theory advanced was not accepted by the scientific community. If this issue surfaces again, the trial court should state on the record its reasoning for allowing or disallowing the testimony under applicable precedents. See, e.g., Nelson v. American Sterilizer Co. (On Remand), 223 Mich.App. 485, 489-492, 566 N.W.2d 671 (1997); People v. Davis, 199 Mich.App. 502, 512, 503 N.W.2d 457 (1993).