Estate of Montrice Coleman v. Connie Pancotto ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
APRIL WARDEN-PITTMAN, personal UNPUBLISHED
representative of the ESTATE OF MONTRICE December 15, 2016
COLEMAN,
Plaintiff-Appellant,
v No. 327005
Macomb Circuit Court
CONNIE PANCOTTO and DOMINIQUE LC No. 2013-001939-NO
PANCOTTO,
Defendants-Appellees,
and
KINGSWOOD ESTATES SUBDIVISION
ASSOCIATION,
Defendant.
Before: GADOLA, P.J., and WILDER and METER, JJ.
PER CURIAM.
Plaintiff, as personal representative of the Estate of Montrice Coleman, appeals as of
right an order dismissing her case, with prejudice, against defendants Connie Pancotto and
Connie’s daughter, Dominique (Nikki) Pancotto, individuals, and the Kingswood Estates
Subdivision Association (Kingswood), an organization. Specifically, plaintiff challenges the
trial court’s earlier order granting summary disposition under MCR 2.116(C)(10) in favor of the
Pancotto defendants1 in this negligence action. We affirm.
1
Although Kingswood also moved for summary disposition under MCR 2.116(C)(10), the trial
court denied its motion. On appeal, plaintiff challenges only the motion for summary disposition
granted in favor of the Pancotto defendants. Kingswood was later dismissed from the action by
stipulation of the parties after the court approved a settlement agreement between plaintiff and
Kingswood.
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I. BACKGROUND FACTS
This case arises from the drowning death of 16-year-old Montrice Coleman, which
occurred during an afterschool party hosted by Nikki, then 16 years old, and her mother, Connie,
at their home on Royal Lake in Shelby Township. Nikki had invited about 15 to 20 classmates, a
number approved by Connie, and expected more to attend based on word-of-mouth invitations
by her friends. Although Nikki did not personally invite Coleman, she invited her friend Miguel
Hollingsworth, who was Coleman’s best friend, and she remembered her friend Megan Darr,
who was dating Coleman at the time, asking if he could come. Thus, she was not surprised when
Coleman arrived at the party and she did not ask him to leave. Connie agreed to host the
swimming party and borrowed life jackets from her neighbors in anticipation of the party to add
to her personal collection of 15 life jackets. According to Darr, Coleman, who was not a strong
swimmer, was encouraged to wear a life jacket, but he refused. Thereafter, Coleman attempted
to swim out to a floating dock in the center of the lake, but he sank beneath the surface of the
murky lake and ultimately drowned.
There is some dispute over the precise roles both Connie and Nikki played in the events
leading up to Coleman’s death. Importantly, Connie claimed at her deposition that, after
realizing Darr was yelling for help for Coleman, she pulled a phone from her pocket while she
stood knee-deep in the water and called 911. Connie also claimed that she stood at the shoreline
from the time she heard Darr screaming until after she ended the 911 call. In contrast, she told
the 911 operator that she checked the house for the missing boy, “opened the bathrooms,” and
located his cell phone. According to another party guest, Natalie Vamvas, Connie waited
between 5 and 10 minutes after learning that a teen was missing before calling 911. Connie
admitted in her deposition that she did not know how long it took her to call 911 after realizing
that a teen was missing; however, she denied Vamvas’s allegation that it had been up to 10
minutes, conceding only that it might have been “a minute or two” after she reached the
shoreline that she called 911.
Both Connie and Nikki testified that Nikki was in the house when the drowning occurred.
According to the Pancottos, once Nikki became aware of Coleman’s disappearance, she ran
outside the house and jumped into the lake to help search for Coleman at the location where Darr
was marking the spot in the water. Darr agreed that Nikki arrived to help look for Coleman.
Several of the teens testified that they thought Nikki was in the lake or was on the floating dock
at some point around the time of Coleman’s disappearance.
There is some dispute over whether and how Connie and Nikki informed the party guests
that they were required to wear jackets in the lake, and over how many teens were actually
wearing life jackets while swimming. Several of the teens who provided deposition testimony
said that few, if any, of the teens in the water were wearing life jackets. The teens unanimously
agreed that, although life jackets were readily available, neither Nikki nor Connie ever informed
the teens that Kingswood required them to wear life jackets, asked them to get out of the water
unless they wore a life jacket, or physically handed a life jacket to any party guest. Nikki
admitted that she did not physically hand out life jackets and did not tell anyone that they had to
get out of the lake if they were not wearing one.
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Plaintiff, as personal representative of Coleman’s estate, brought an action against
Connie and Nikki, alleging both gross and ordinary negligence. The Pancotto defendants then
moved for summary disposition on all of plaintiff’s claims, which the trial court granted.
II. DISCUSSION
Plaintiff first argues that the trial court erred when it granted the Pancotto defendants’
motion for summary disposition after concluding that the recreational land use act (RUA), MCL
324.73301(1), barred plaintiff’s claim against Connie for ordinary negligence and that plaintiff
failed to make a prima facie showing of gross negligence with regard to Connie or ordinary
negligence with regard to Nikki. We disagree with plaintiff.
A. STANDARDS OF REVIEW
We review de novo a trial court’s decision on a motion for summary disposition. Loweke
v Ann Arbor Ceiling & Partition Co, 489 Mich 157, 162; 809 NW2d 553 (2011). Below, the
trial court granted the Pancotto defendants’ motion for summary disposition pursuant to MCR
2.116(C)(10). Summary disposition is proper under MCR 2.116(C)(10) if “there is no genuine
issue regarding any material fact and the moving party is entitled to judgment as a matter of
law.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). When reviewing
such a motion, courts consider the affidavits, pleadings, depositions, admissions, and other
documentary evidence in the light most favorable to the nonmoving party. Liparoto Constr, Inc
v Gen Shale Brick, Inc, 284 Mich App 25, 29; 772 NW2d 801 (2009).
Whether the RUA applies to a given set of facts is a question of law that this Court
reviews de novo. Neal v Wilkes, 470 Mich 661, 664; 685 NW2d 648 (2004). We also review de
novo whether a defendant owed a duty of care in a negligence action. Fultz v Union-Commerce
Assoc, 470 Mich 460, 463; 683 NW2d 587 (2004).
B. THE RECREATIONAL LAND USE ACT
Plaintiff first argues that the trial court erred when it determined that the RUA applied in
this case to limit Connie’s liability to that of gross negligence or willful and wanton misconduct.
“The RUA exempts an owner of land from liability for injuries suffered by a person while that
person is using the owner’s land for specified purposes if that person has not paid the owner a
valuable consideration for such use, unless the injuries were caused by the owner’s gross
negligence or willful and wanton misconduct.” Neal, 470 Mich at 671. In pertinent part, MCL
324.73301(1) states the following:
Except as otherwise provided in this section, a cause of action shall not
arise for injuries to a person who is on the land of another without paying to the
owner, tenant, or lessee of the land a valuable consideration for the purpose of
fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling,
snowmobiling, or any other outdoor recreational use or trail use, with or without
permission, against the owner, tenant, or lessee of the land unless the injuries
were caused by the gross negligence or willful and wanton misconduct of the
owner, tenant, or lessee. [Emphasis added.]
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The application of the RUA is not “limited to vacant or undeveloped lands,” and bars liability
when land is used for recreational purposes even in “[u]rban, suburban, and subdivided lands”
such as the property at issue here. Neal, 470 Mich at 665-666. In Neal, our Supreme Court
explained the following:
The RUA simply states that an owner of land is not liable to a person who injures
himself on the owner’s land if that person has not paid for the use of the land and
that person was using the land for a specified purpose, unless the injuries were
caused by the owner’s gross negligence or willful and wanton misconduct. The
statute contains no limitation on the type of land involved, but rather applies to
specified activities that occur “on the land of another . . . .” MCL 324.73301(1).
That is, the act limits its application to specified activities, but it does not limit its
application to any particular type of land. Therefore, an owner is not liable to a
nonpaying outdoor recreational user of his land, unless the user’s injuries are
caused by the owner’s gross negligence or willful and wanton misconduct. [Id. at
667-668 (emphasis added).]
In this case, plaintiff does not dispute that Coleman was injured “on the land of another
without paying to the owner . . . a valuable consideration,” or that that Coleman was engaged in
an outdoor recreational use of the land within the meaning of the RUA. See MCL 324.73301(1).
Plaintiff also does not contest that this Court has previously concluded that swimming in a lake
or pond is an “outdoor recreational use” for which liability for injury is limited by the RUA. See
Hill v Guy, 161 Mich App 519, 521, 523-524; 411 NW2d 757 (1987). Rather, plaintiff focuses
on the language in MCL 324.73301(1) that limits the RUA’s protection to “the owner, tenant, or
lessee of the land.” According to plaintiff, because Connie failed to show that she owned the
lake, i.e., “the land” on which Coleman suffered his injury, she was not entitled to protection
under MCL 324.73301(1). We disagree.
The fact that Connie did not prove ownership of the specific part of the lake where
Coleman drowned did not preclude application of the RUA in this case. Although a
representative of the lake association stated that he did not know who “owned” the lake, he
explained that only property owners directly adjacent to the lake are allowed to access the water.
Therefore, Connie had a clear possessory interest in, and control over, Royal Lake. Additionally,
plaintiff does not dispute that Connie owned the property directly adjacent to the lake where
Coleman decided to forego use of a life jacket and enter the lake and where the alleged
negligence occurred. Rather, plaintiff acknowledges that “[i]t is undisputed that [Coleman] was
injured in the lake that is adjacent to the Pancotto property.”
Plaintiff argues that this Court’s opinion in Duffy v Irons Area Tourist Ass’n, 300 Mich
App 542, 546; 834 NW2d 508 (2013), limited the application of the RUA when it noted that
“[b]y repeatedly referring to the owner, tenant, or lessee of the land on which the person is
injured, the Legislature plainly intended to limit the scope of the protection provided under MCL
324.73301(1)[.]” However, plaintiff misconstrues the holding of Duffy, which was intended to
limit the application of the RUA to the actual owner, tenant, or lessee of the land on which a
negligence action arose. In Duffy, the Court considered whether a tourist association under
contract to care for part of the defendant’s land could claim protection under the RUA. Id. at
544-546. This Court held that it could not, explaining as follows:
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By repeatedly referring to the owner, tenant, or lessee of the land on which
the person is injured, the Legislature plainly intended to limit the scope of the
protection provided under MCL 324.73301(1): “a cause of action” by persons
who were injured “on the land of another”—without paying to “the owner, tenant,
or lessee of the land” a valuable consideration—shall not arise “against the owner,
tenant, or lessee of the land” unless that person’s injuries were caused “by the
gross negligence or willful and wanton misconduct of the owner, tenant, or
lessee.” . . . As can be seen from a cursory reading, the Legislature took pains to
state that it is the land owners, tenants, or lessees who cannot be liable unless the
land owner, tenant, or lessee engaged in gross negligence or wanton and willful
misconduct. It is also evident that the Legislature extended this protection to
owners, tenants, and lessees because it is those persons or entities whose
possession and control over the land renders them liable under the traditional
common-law principles applicable to premises liability. [Id. at 546-547
(emphasis omitted).]
Accordingly, the Court used the language cited by plaintiff to emphasize that the property owner,
tenant, or lessee was the only entity that could benefit from the RUA’s protection, not to limit the
RUA’s application to those who could prove ownership of the precise point of property where an
injury occurred. Plaintiff asks us to read a requirement into the RUA that simply is not there.
This would be inappropriate, particularly in light of Duffy, in which this Court emphasized:
[O]ur Supreme Court has disavowed this type of “legislative decision-making” by
the courts when interpreting the recreational land use act. Instead, our Supreme
Court has held that the recreational land use act should be enforced as written and
not given a judicial gloss designed to promote what the court believes to be the
Legislature’s policy goal in enacting the statute. [Id. at 548 (citations omitted).]
Nothing in the plain language of the RUA limits its protections to the owner of “the land on
which the plaintiff is injured.” In fact, in a dated, but still persuasive, opinion, this Court
considered a factual scenario very similar to the one presented here and concluded that the
RUA’s protection extended to the owners of property adjoining a body of water even when the
actual injury occurred within the body of water. James v Leco Corp, 170 Mich App 184, 190-
191; 427 NW2d 920 (1988). In James, the plaintiffs’ decedents used the defendant’s beachfront
property to access a pier before being swept away by high waves, suffering death. Id. at 186-
187. The James plaintiffs argued that the RUA did not apply “because their decedents were not
injured on [the] defendant’s land, but rather were injured while on the end of the government’s
pier attached to, but away from, [the] defendant’s land.” Id. at 189. The James Court disagreed,
holding the following:
Clearly, plaintiffs’ decedents used defendant’s property for recreational
purposes, traversing it in order to walk on the pier. Plaintiffs have alleged that it
was this use of “the lands of another,” in this case defendant’s property, that was
in fact the proximate cause of their decedents’ deaths.
* * *
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We hold that the recreational use statute applies to plaintiffs’ cause of action for
injuries alleged to be proximately caused by use of defendant’s land. [Id. at 190-
191.]
Like the decedents in James, Coleman used Connie’s land to enter the water, and clearly entered
Connie’s property for the purpose of engaging in a recreational use of that land. Therefore, the
trial court did not err by concluding that the RUA applies in this case to limit Connie’s liability
to that of gross negligence or willful and wanton misconduct. Further, because plaintiff has not
presented any evidence of “willful and wanton misconduct,” which is established when “the
conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will
result as to be the equivalent of a willingness that it does,” Radu v Herndon & Herndon
Investigations, Inc, 302 Mich App 363, 386; 838 NW2d 720 (2013) (quotation marks and
citations omitted), the RUA limits plaintiff’s claim against Connie to gross negligence.
C. GROSS NEGLIGENCE AS TO CONNIE PANCOTTO
Plaintiff contends that the trial court erred when it determined that plaintiff had not
alleged facts to support a gross negligence claim against Connie. Again, we disagree. Gross
negligence is conduct that is so reckless that it demonstrates a substantial lack of concern for
whether an injury results. Xu v Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003). The gross
negligence standard suggests “almost a willful disregard of precautions or measures to attend to
safety and a singular disregard for substantial risks. It is as though, if an objective observer
watched the actor, he could conclude, reasonably, that the actor simply did not care about the
safety or welfare of those in his [or her] charge.” Tarlea v Crabtree, 263 Mich App 80, 90; 687
NW2d 333 (2004). The issue of gross negligence may be determined by summary disposition
only if reasonable minds could not differ. Jackson v Saginaw Co, 458 Mich 141, 146; 580
NW2d 870 (1998).
No reasonable person could conclude that Connie exhibited a substantial disregard for the
safety of the party guests, including Coleman. Rather, the facts indicate that Connie went out of
her way to ensure that she would have extra life jackets available for the party and to inform the
guests that they should wear life jackets. Although Connie admitted that she did not personally
hand a life jacket to each party guest, her failure to do so was not grossly negligent. As this
Court has explained, “[e]ven the most exacting standard of conduct, the negligence standard,
does not require one to exhaust every conceivable precaution to be considered not negligent.”
Tarlea, 263 Mich App at 90. No reasonable person observing Connie’s actions on the day of the
incident would conclude that Connie “simply did not care about the safety or welfare,” id., of the
teens swimming in the lake.
Plaintiff suggests that the evidence, appropriately construed in a light most favorable to
plaintiff, proves that Connie waited an unreasonable amount of time before calling 911 after she
realized that one of the teens was missing. Specifically, Vamvas alleged that she and Darr
shouted for almost 10 minutes before Connie called 911. According to plaintiff, this failure to
act within a reasonable time illustrated “a willful disregard of precautions or measures to attend
to safety and a singular disregard for substantial risks.” Id. Even accepting Vamvas’s allegation
as true, it would not prove that Connie exhibited gross negligence because there is no evidence
that Connie knew Coleman was drowning during this time period. There is also no evidence that
any of the teens successfully communicated Coleman’s dire circumstances to Connie and Connie
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refused to believe them. Although Connie’s alleged delay might be considered “unreasonable,”
raising issues of ordinary negligence, “[e]vidence of ordinary negligence is insufficient to create
a material question of fact regarding the existence of gross negligence.” Woodman v Kera, LLC,
280 Mich App 125, 152; 760 NW2d 641 (2008). No reasonable trier of fact could conclude that
Connie’s alleged delay in calling for emergency help displayed conduct so reckless as to
demonstrate a substantial lack of concern for whether an injury results.2
D. NEGLIGENCE AS TO NIKKI PANCOTTO
Next, plaintiff argues that the trial court erred when it determined that no genuine issue of
material fact existed with regard to whether Nikki was liable for Coleman’s death. We disagree
with plaintiff.
At the outset, we note that the trial court erred when it determined the issue of Nikki’s
negligence before deciding whether Nikki owed Coleman any duty of care. A prima facie case
of negligence requires the establishment of four elements: (1) a duty owed by the defendant to
the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages. Henry v Dow Chem Co,
473 Mich 63, 71-72; 701 NW2d 684 (2005). “Duty” is a legally recognized obligation “to
conform to a particular standard of conduct to protect others against unreasonable risks of harm.”
Burnett v Bruner, 247 Mich App 365, 368; 636 NW2d 773 (2001) (quotation marks and citation
omitted). Ordinarily, whether a duty exists is a question of law for the court. Id. “[O]nce a
standard of conduct is established, the reasonableness of an actor’s conduct under the standard is
a question for the factfinder, not the court.” Tallman v Markstrom, 180 Mich App 141, 144; 446
NW2d 618 (1989). Here, the trial court erred when it failed to identify a duty owed by Nikki,
instead engaging in a reasonableness determination that turned on facts that were somewhat in
dispute. However, the error was harmless because Nikki did not owe Coleman a duty of care
and summary disposition was appropriate. Beaudrie v Henderson, 465 Mich 124, 130; 631
NW2d 308 (2001).
Plaintiff asserts that, by choosing to host a swimming party, Nikki owed Coleman and the
rest of her guests a duty to act reasonably in that undertaking. In addition, plaintiff suggests that
Nikki owed Coleman a duty in premises liability to warn Coleman of a dangerous drop off in
Royal Lake that was known to Nikki. “Michigan law distinguishes between claims arising from
ordinary negligence and claims premised on a condition of the land.” Buhalis v Trinity
Continuing Care Servs, 296 Mich App 685, 692; 822 NW2d 254 (2012). A claim can have
elements sounding in both premises liability and ordinary negligence. Laier v Kitchen, 266 Mich
2Plaintiff argues that the affidavit of aquatics expert Dr. Ralph Johnson established that Connie
was grossly negligent; however, expert witnesses may not draw legal conclusions and they “may
not give testimony regarding a question of law, because it is the exclusive responsibility of the
trial court to find and interpret the law.” Carson Fischer Potts & Hyman v Hyman, 220 Mich
App 116, 122-123; 559 NW2d 54 (1996). Because the circumstances of this case did not give
rise to sufficient indicia of gross negligence to create a genuine issue of material fact, the trial
court was permitted to conclude that Connie was entitled to summary disposition as a matter of
law. Johnson’s legal conclusions were irrelevant to the trial court’s determination in this regard.
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App 482, 493, 497; 702 NW2d 199 (2005). This Court is not limited by plaintiff’s failure to
clearly articulate the duties allegedly owed by Nikki to Coleman. See David v Sternberg, 272
Mich App 377, 381; 726 NW2d 89 (2006) (“It is well established that the gravamen of an action
is determined by reading the claim as a whole and looking beyond the procedural labels to
determine the exact nature of the claim.”) (quotation marks, citations, and brackets omitted).
Accordingly, we will address whether Nikki owed Coleman a duty of care in the context of both
ordinary negligence and premises liability.
1. ORDINARY NEGLIGENCE
Plaintiff argues that Nikki, in taking the affirmative action of hosting a swimming party,
had a duty to exercise reasonable care to avoid harm to her guests. It is true that “[e]very person
who engages in the performance of an undertaking has an obligation to use due care or to act so
as not to unreasonably endanger the person or property of another.” Laier, 266 Mich App at 494
(quotation marks and citation omitted). “However, as a general rule, there is no duty that
obligates one person to aid or protect another.” Hill v Sears, Roebuck & Co, 492 Mich 651, 660;
822 NW2d 190 (2012) (quotation marks and citation omitted). As this Court has explained:
“In determining standards of conduct in the area of negligence, the courts
have made a distinction between misfeasance, or active misconduct causing
personal injury, and nonfeasance, which is passive inaction or the failure to
actively protect others from harm. The common law has been slow in recognizing
liability for nonfeasance because the courts are reluctant to force persons to help
one another and because such conduct does not create a new risk of harm to a
potential plaintiff. Thus, as a general rule, there is no duty that obligates one
person to aid or protect another.”
“Social policy, however, has led the courts to recognize an exception to
this general rule where a special relationship exists between a plaintiff and a
defendant. . . . The rationale behind imposing a duty to protect in these special
relationships is based on control. In each situation one person entrusts himself to
the control and protection of another, with a consequent loss of control to protect
himself. The duty to protect is imposed upon the person in control because he is
best able to provide a place of safety.” [Graves v Warner Bros, 253 Mich App
486, 493-494; 656 NW2d 195 (2002), quoting Williams v Cunningham Drug
Stores, Inc, 429 Mich 495, 498-499; 418 NW2d 381 (1988).]
“Such a special relationship must be sufficiently strong to require a defendant to take action to
benefit the injured party.” Graves, 253 Mich App at 494 (quotation marks and citation omitted).
These relationships include “a common carrier that may be obligated to protect its passengers, an
innkeeper his guests, an employer his employees, owners and occupiers of land their invitees, a
doctor his patient, and business invitors or merchants their business invitees.” Id.
Plaintiff insists that Nikki owed Coleman a duty of care. However, plaintiff has not
identified an affirmative action undertaken by Nikki that might have caused Coleman’s death.
Instead, plaintiff notes that Nikki did not warn Coleman of a dangerous drop-off in the lake, did
not inform Coleman that Kingswood required all swimmers, regardless of skill, to wear a life
jacket in the lake, and did not personally hand Coleman a life jacket and force him to put it on.
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These are not affirmative acts leading to harm, but failures to intervene to protect Coleman from
the dangers inherent in swimming, an act voluntarily undertaken by Coleman himself.
The failure to act—nonfeasance—cannot form the basis of liability in the absence of a
special relationship, Downs v Saperstein Assoc Corp, 265 Mich App 696, 701; 697 NW2d 190
(2005), and plaintiff fails to argue that Nikki and Coleman had any special relationship imposing
an affirmative duty on Nikki to act on behalf of Coleman. Plaintiff suggests that Nikki, as the
host of a social gathering, had an affirmative duty to guarantee the safety of her party guests.
However, we are unable to find any caselaw in which this Court has required a social host to
affirmatively act to prevent harm to his or her guests and public policy counsels against the
imposition of such a duty. Ordinary social guests, such as Coleman, must take responsibility for
their own safety, and do not entrust themselves to the control and protection of another, with a
consequent loss of control to protect themselves. The relationship between social hosts and
guests is not in the same category as those relationships in which this Court has determined that
enough control is transferred to impose liability for injury. See Graves, 253 Mich App at 494.
Nikki, as a mere social host, did not owe Coleman a duty to keep him safe from injury.
Therefore, summary disposition on plaintiff’s ordinary negligence claim was appropriate.
2. PREMISES LIABILITY
Plaintiff also claims that Nikki had a duty to warn Coleman of a dangerous drop-off in
the lake and breached that duty by failing to do so. As previously discussed, “[w]hen an injury
develops from a condition of the land, rather than emanating from an activity or conduct that
created the condition on the property, the action sounds in premises liability.” Woodman, 280
Mich App at 153. In a premises liability action, “liability arises solely from the defendant’s duty
as an owner, possessor, or occupier of land.” Jahnke v Allen, 308 Mich App 472, 475; 865
NW2d 49 (2014) (quotation marks and citation omitted). The precise duty of care owed by a
premises possessor depends on whether the injured party is classified as a trespasser, a licensee,
or an invitee. James v Alberts, 464 Mich 12, 19; 626 NW2d 158 (2001).
Social guests, such as Coleman in this case, are licensees who are “privileged to enter the
land of another by virtue of the possessor’s consent,” Stitt v Holland Abundant Life Fellowship,
462 Mich 591, 596; 614 NW2d 88 (2000), and “who assume the ordinary risks associated with
their visit,” James, 464 Mich at 19 (quotation marks and citation omitted). In general, a premises
possessor “owes a licensee a duty only to warn the licensee of any hidden dangers the [premises
possessor] knows or has reason to know of, if the licensee does not know or have reason to know
of the dangers involved.” Stitt, 462 Mich at 596 (emphasis added). However, perfection is
“neither practicable nor required by the law, and [u]nder ordinary circumstances, the overriding
public policy of encouraging people to take reasonable care for their own safety precludes
imposing a duty on the possessor of land to make ordinary [conditions] foolproof.” Hoffner v
Lanctoe, 492 Mich 450, 460; 821 NW2d 88 (2012) (quotation marks and citation omitted).
In her deposition, Nikki acknowledged that the lake water in Royal Lake dropped off
suddenly from knee or hip level to over-head level, and that the drop-off could not be seen from
above the water. Although whether Nikki informed Coleman of the drop-off is disputed, it is
undisputed that Coleman knew about the drop-off before he decided to swim in the lake. Darr
testified that she and Nikki discussed the drop-off in Coleman’s presence. Darr then swam out to
the drop-off, tested it, and swam back to warn Coleman before accompanying him on his swim
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to the floating dock. Additionally, Hollingsworth testified that he personally stopped at the drop-
off, pointed it out to Coleman, and suggested that Coleman stay at the shore. Plaintiff presented
no evidence contesting Coleman’s knowledge of the drop-off. Coleman’s girlfriend and best
friend, both of whom were with Coleman up until the drowning, testified that he was aware of
the drop-off, and no one testified to the contrary. Because Coleman, a social guest, was aware of
the potentially dangerous condition of the lake, Nikki had no duty to protect Coleman or offer
him an additional warning. Therefore, the trial court properly granted summary disposition in
favor of Nikki on plaintiff’s premises liability claim.
Affirmed.
/s/ Michael F. Gadola
/s/ Kurtis T. Wilder
/s/ Patrick M. Meter
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