Shaw v. Wiegartz , 1 Mich. App. 271 ( 1965 )

1 Mich. App. 271 (1965) 135 N.W.2d 565

SHAW
v.
WIEGARTZ.

Docket No. 214.

Michigan Court of Appeals.

Decided June 21, 1965.

Evans & Shipper (R.L. Shipper, of counsel), for plaintiffs.

John K. Irwin, Jr., for defendants.

FITZGERALD, J.

No single human act has been so tortured by the law as the simple deed of going onto the property of another and being injured. Courts, in their efforts to refrain from imposing undue burdens on injured parties or landowners, have set up categories and categories-within-categories to designate the "status" of the injured and the "knowledge" of the landowner.

The tangled skein created by the law can only be unravelled by close inspection and this saga is no exception to this precept.

Plaintiff Eve M. Shaw is an aunt of defendant Dorothy Wiegartz. The husbands of each party, though named in the suit, figure little in the statement of events. Plaintiff suffered a fall down a basement stairs in defendants' home on August 24, 1963. Trial, on June 9, 1964, without a jury, resulted in a no cause of action on the ground of lack of knowledge of the hazardous stairs on the part of defendant. Plaintiff brings this appeal.

From time to time, previous to the accident, plaintiffs had lived with defendants in Royal Oak, contributing part of the food but paying no rent. Defendants purchased a new home at Walled Lake during the summer of 1963 and were scheduled to move on August 24th. Sometime around August 22d, the parties had a conversation relative to the cleaning-up and moving process. Plaintiff claims defendant asked her to come out and help her. Defendant claims that Mrs. Shaw volunteered for duty. At any rate, there was no discussion regarding compensation for Mrs. Shaw's services.

On August 24th, Mrs. Shaw went to the premises for the first time with two other ladies and arrived some 15 minutes before defendant. The prior owners had moved out the day before. While getting ready to go to work, Mrs. Shaw walked to a darkened area in a normal manner and speed, thinking it was a hall (she asked specifically, "What is this, a hall?") and fell down the basement stairs, breaking bones in both ankles.

Meanwhile, Dorothy Wiegartz, who had arrived on the scene, was talking on the telephone and had no chance to answer plaintiff Shaw's question. Neither had she told Mrs. Shaw of the nature of the stairs, described in testimony as the "well-type," being an opening cut out of the floor. There was no door as such, and the opening was mostly concealed by the outside door to the kitchen when that door was open. The walls were a continuation of the kitchen walls, the floor was a continuation of the kitchen floor. There was a light switch and a light in the stairwell, but at the time of the fall, the light was not on. There was no handrail. The ceiling was a continuation of the kitchen ceiling and the wall paint of the stairwell and the kitchen were the same.

The defendant had been on the premises three times before the day of the accident: one trip she had not been in the house; one trip she had not gone to the basement; her other trip included a visit to the basement in the company of the prior owners and while it was lighted. She testified she saw nothing unusual or hazardous at that time.

Thus, the relationships of the parties and the treacherous conditions bring us directly to the issues: What was the legal status of Mrs. Shaw, and what duty of care was owed her, and did defendant have sufficient knowledge of a hazardous condition to be charged with a legal duty to warn of the stairs?

A trespasser Mrs. Shaw was not, and we can reject that she was a business invitee on the premises since it was neither urged by counsel nor carried out by proofs. About the best that can be said for her is that she was a licensee, as befits the conflicting testimony as to whether she was asked to help in the cleaning or whether she volunteered her services.

Authorities have universally agreed that the "licensee" is not entitled to the same degree of wariness for his safety on the premises of another as the "business invitee." If the family relationship is close, as is the case here, the most common term applied to such a visitor is a "gratuitous licensee" and this is borne out by the American Law Institute's Restatement of Torts, § 331.

But what of the visitor who confers a benefit on the host during the course of the visit? It is well stated in 25 ALR2d 598, 607 that minor services performed by the guest for the host during the course of the visit will not be sufficient to interrupt his status as a guest. The weight of authority for the duty owed licensees is likewise set out in 25 ALR2d 598, 602 where it states that:

"The host's only duty is not to injure, by active or affirmative negligence, a guest whose presence is known, not to set a trap or pitfall for the guest, to warn against or remove defects which the landlord knows are likely to cause harm to the guest, and which he has reason to believe the guest is not likely to discover for himself." (Emphasis supplied.)

The court in its opinion found that the stairs in question were hazardous, but further stated that it could not find "that defendant had actual knowledge of a hazardous condition requiring warning or other action on her part."

Plaintiff urges a long succession of Michigan cases, beginning with Samuelson v. Cleveland Iron Mining Company (1882), 49 Mich. 164, and ending with Kroll v. Katz (1965), 374 Mich. 364. But the majority of these cases deal with business invitees and, while helpful, are not controlling.

Such cases, however, stand for the proposition that it is for the trier of fact to determine whether or not the possessor of land knew of the danger or ought to have known about the danger. The court in the instant case found that defendant did not have such knowledge nor could such knowledge be imputed to her.

The recent case of Miller v. Miller (1964), 373 Mich. 519, is perhaps more factually in point in that a family relationship was also involved. Here, plaintiff had gone to her son's home for a social visit and to deliver clothing for his children. Finding the screen door stuck, she was advised by defendant to give it a kick which she did, thereupon hurtling out the door and down the steps. The Court cited with approval Restatement of Torts, § 342, p 524, "defendant's duty to plaintiff required they exercise reasonable care to disclose to her dangerous defects which were known to them and were likely to be undiscovered by plaintiff." (Emphasis supplied.)

We agree with the trial judge that we cannot impute superior knowledge to the defendant in the instant case. Her testimony reveals that the stairs were not hazardous in her estimation:

"Q. Did you have knowledge of this stairway before the accident?

"A. Well, what do you mean by knowledge? Did I know it was there?

"Q. Yes.

"A. I realized it was there, but I didn't realize it was a hazard."

What then is the duty owed to gratuitous licensees? Certainly protection from active wrongdoing, traps, gross negligence, and willful injury to name but a few. But unsuspected or undiscovered hazards? We think not. To place the duty of knowing every potential danger upon the owner of property — where he has had no reasonable opportunity to fully inspect his premises — is to place upon him an intolerable burden.

Protection from known hazards, yes. An ironclad guarantee of safety against all hazards, no.

Plaintiff put in her proofs fully and completely and, indeed, was allowed to reopen over objection for the purpose of submitting the question of defendant's knowledge of the condition that the court found dangerous. The proofs raised fact questions which were determined by a judge, acting without a jury. The Supreme Court of this State has frequently restated the rule that in a nonjury law case, the findings of fact by the trial judge will not be reversed unless contrary to the clear preponderance of the evidence.

A concise statement of this rule will be found in Mallory v. Pitcairn (1943), 307 Mich. 40, 47:

"The trial court saw and heard the witnesses and, as trier of the facts, was best able to judge the credibility of, and the weight to be accorded, their testimony. We have repeatedly said that in cases tried without a jury the trial judge may give such weight to the testimony as in his opinion it is entitled to, and that in such cases we do not reverse unless the evidence clearly preponderates in the opposite direction."

This rule was reiterated as late as 1965 in Kevreson v. Michigan Consolidated Gas Company, 374 Mich. 465.

After a review of the record, we cannot accord Mrs. Shaw any greater status than the trial court gave her, nor can we impose any greater duty upon the Wiegartzes than did that court.

Accordingly, the judgment of no cause of action is affirmed. Cost to appellees.

QUINN, P.J., and T.G. KAVANAGH, J., concurred.