Chapter 9: Premises Liability ^[1]

I.   Overview

§9.1   Premises liability cases are like other negligence cases in that the plaintiff must prove the following elements: (1) a duty owed to the plaintiff by the defendant, (2) a breach of that duty, (3) an injury proximately resulting from that breach, and (4) damages. Moning v Alfono, 400 Mich 425, 437, 254 NW2d 759 (1977). As with negligence cases generally, duty is a question for the court to decide. The jury decides the facts. Id. at 438; see also Rodis v Herman Kiefer Hosp, 142 Mich App 425, 370 NW2d 18 (1985).

Although the possessor has a duty to act with reasonable care, the measure of what is considered reasonable care varies based on the extent to which the relationship benefits the possessor. In other words, the plaintiff’s status as an invitee, a licensee, or a trespasser determines what level of care is owed. Swartz v Huffmaster Alarms Sys, Inc, 145 Mich App 431, 377 NW2d 393 (1985). Each of these terms has a special meaning in the law. A plaintiff’s status may also change if they move from one area of the premises to another. Constantineau v DCI Food Equip, Inc, 195 Mich App 511, 491 NW2d 262 (1992).

Generally, possessors of land owe invitees a duty to exercise ordinary care and prudence to keep their premises in a reasonably safe condition for the invitees’ use. Such a level of care generally includes a duty to maintain, warn, and inspect. Kroll v Katz, 374 Mich 364, 132 NW2d 27 (1965); Douglas v Elba, Inc, 184 Mich App 160, 457 NW2d 117 (1990). Possessors of land owe licensees a duty to use ordinary care to prevent injury arising from the defendants’ active negligence. Draper v Switous, 370 Mich 468, 122 NW2d 698 (1963). Under most circumstances, landowners have no duty to keep their premises safe for trespassers. Kreski v Modern Wholesale Elec Supply Co, 429 Mich 347, 415 NW2d 178 (1987); Polston v SS Kresge Co, 324 Mich 575, 37 NW2d 638 (1949); Ryan v Towar, 128 Mich 463, 87 NW 644 (1901).

As a general rule, for purposes of premises liability law, a defendant’s duty ends with the boundaries of the premises, and the defendant is not legally responsible for an injury caused by a dangerous condition outside those boundaries. Ward v Frank’s Nursery & Crafts, Inc, 186 Mich App 120, 463 NW2d 442 (1990); Swartz. However, this general rule may yield when a person is injured outside the defendant’s premises as a result of (1) a dangerous condition existing on the defendant’s premises, (2) the defendant’s physical intrusion on the adjacent property, or (3) affirmative acts of the defendant that increase an existing hazard or create a new one on those adjacent premises. Ward; Swartz; see also DeMare v Woodbridge 1985, 182 Mich App 356, 451 NW2d 871 (1990).

See Michigan Causes of Action Formbook ch 5 (Kaitlin A. Brown et al eds, ICLE 2d ed) for a complaint-drafting checklist and sample complaint for a premises liability action.

II.   Possession and Control

§9.2   The only proper party defendant in a premises liability case is the entity that had possession and control over the property; ownership is not dispositive. Orel v Uni-Rak Sales Co, 454 Mich 564, 563 NW2d 241 (1997). See also Finazzo v Fire Equip Co, 323 Mich App 620, 918 NW2d 200 (2018), which held that a party need not own the premises but must have both “possession and control” over them for liability purposes. The relevant question is whether injury was caused as a result of a condition on the land. If it was, the case is one of premises liability and a plaintiff fails to state a valid claim against a defendant that did not have both possession and control.

In Orel, plaintiff slipped and fell on ice while working at a job site on the property of Uni-Rak, which operated a small factory. A fire had shut down the facility previously. Plaintiff’s employer, a fire repair company, was hired to perform the repair and reconstruction work. Plaintiff sued the property owner, Uni-Rak, for his injuries.

Because there was a dispute about what entity had possession and control of the premises at the time of plaintiff’s injury, the trial court read M Civ JI 19.02 to the jury. That jury instruction is appropriate if there is a dispute about who is in possession and control. After a jury verdict in favor of defendant, plaintiff appealed, claiming that the trial court erred by giving this jury instruction because the evidence was clear that defendant Uni-Rak was a possessory landowner at the time of the incident. The court of appeals reversed in an unpublished opinion.

The supreme court reversed the court of appeals and affirmed the trial court. The court held that the issue of who had possession and control of the property at the time of the incident was one for the jury, and in Orel this issue was hotly contested. Defendant Uni-Rak presented evidence that plaintiff’s employer had completely taken over possession and control of the parking lot in question.

Similarly, in Kubczak v Chemical Bank & Tr Co, 456 Mich 653, 575 NW2d 745 (1998), the supreme court adhered to the rule that the only proper party defendant is the entity that had both possession and control over the property at the time of the accident. In Kubczak, defendant bank had foreclosed on the property pursuant to a default on a mortgage. During the six-month redemption period, plaintiff, a real estate agent, slipped and fell while showing the home to a prospective purchaser.

Although the bank had a theoretical impending right of possession, on the day of the accident it exercised no dominion or control over the property. Under mortgage law, the bank was not entitled to possession of the premises until after the six-month redemption period had run. The court explained that the purpose behind the general rule was that the entity that had the power to prevent the injury and failed to prevent the injury should be the entity that is held liable. Once again, the court stated that liability for negligence does not depend on legal title; rather, the test is possession and control. Id. at 662. Accordingly, the court held that the bank did not have a duty to maintain the premises.

In a similar case, Anderson v Wiegand, 223 Mich App 549, 567 NW2d 452 (1997), plaintiff slipped and fell on ice while attending an open house conducted by the property owners’ real estate agent. The property owners left the key with the agent and were gone at the time of the accident. In fact, the real estate agent had requested that the property owners not be home at the time of the open house. Plaintiff sued the homeowners, the real estate agent, and the real estate agency. The trial court granted summary disposition for all defendants. The court of appeals held that summary disposition was proper for the homeowners but was improper for the real estate agent and his agency. The court found that the homeowners ceded possession and control of the premises to the real estate agent for the purpose of conducting an open house. It therefore held that the real estate agent and his agency were the only proper party defendants because they had taken over possession and control of the premises. Id. at 556.

In Schneider v Nectarine Ballroom  (On Remand), 204 Mich App 1, 514 NW2d 486 (1994), the court considered whether defendant bar owed a duty to plaintiff for injuries sustained off the premises. Plaintiff was injured as a result of an altercation that began inside the bar. The other participants in the fight were ejected from the bar by the bouncer, who then pushed plaintiff out of the bar, allegedly into the arms of his assailants. The assailants dragged plaintiff to the curb and beat him. The trial court granted summary disposition in favor of the bar, finding that it had no duty to plaintiff regarding the injuries sustained off the premises. The court of appeals reversed. Accepting plaintiff’s allegations as true for purposes of the motion for summary disposition, the court held that the injuries plaintiff sustained should have been reasonably foreseeable to defendant bar and could have been avoided without much difficulty. Of course, the facts of Schneider are unusual and unique. Consequently, it has little precedential value.

In Sholberg v Truman, 496 Mich 1, 852 NW2d 89 (2014), the supreme court held that title owners of real property cannot be held liable for a public nuisance arising from that property in a circumstance where someone other than the title owners (1) is in possession of the property, (2) is exercising control over the property, and (3) is the one who created the alleged nuisance. The supreme court reversed the court of appeals holding to the contrary and reinstated the trial court’s order granting summary disposition for defendant.

When the premises is in the possession and control of a governmental entity, special rules apply. In Hoffner v Lanctoe, 290 Mich App 449, 802 NW2d 648 (2010), rev’d on other grounds, 492 Mich 450, 821 NW2d 88 (2012), the court of appeals found that the lease agreement and the actions and intent of the parties demonstrated that defendant landlords were responsible for the exterior areas of the exercise facility’s premises, including snow removal. The tenants were not proper defendants because they did not have possession and control of the sidewalk outside of the exercise facility, and the trial court erred in denying them summary disposition. Similarly, in Morelli v City of Madison Heights, 315 Mich App 699, 890 NW2d 878 (2016), the court held that individual defendant owed no legal duty to plaintiff because he did not have possession and control over the berm on which plaintiff fell into a hole. The court found that per a city ordinance, the berm was part of a public right-of-way. Although defendant city delegated responsibility to maintain the grass, it retained an easement over the right-of-way and thus had a duty to keep it in a safe condition. See chapter 15 for a discussion of governmental liability and immunity.

III.   Determination of Legal Status

A. In General

§9.3   What's New in this Section   The Michigan Supreme Court in Kandil-Elsayed v F&E Oil, Inc, 512 Mich 95, 1 NW3d 44 (2023), left in place the current scheme in Michigan for classifying all premises liability plaintiffs into one of three categories: invitee, licensee, or trespasser. Whether a plaintiff is an invitee, a licensee, or a trespasser is a question of fact for the jury to determine unless the court finds that reasonable people could not disagree. Leveque v Leveque, 41 Mich App 127, 199 NW2d 675 (1972). In Leveque, the court found that plaintiff was an invitee as a matter of law. Plaintiff was defendants’ sister-in-law. She went to their home, at their request, to pick up defendants’ children to babysit. When plaintiff carried defendants’ infant down the front porch stairs, she fell due to a defect of the porch. The trial court granted defendants’ motion for summary judgment, holding that plaintiff was a licensee as a matter of law. The court of appeals reversed, finding that plaintiff was an invitee as a matter of law.

This finding by the court turned on the nature of the visit. Because the evidence showed that plaintiff’s visit was not for social purposes but rather to benefit the landowner, the court determined that plaintiff was an invitee. In so doing, the court expanded the status of an invitee to include a personal friend or family member (who are normally social guests and, as such, licensees; see §9.7) if the primary purpose of the visit is other than social.

In addition, in Doran v Combs, 135 Mich App 492, 354 NW2d 804 (1984), the court held that defendant’s former mother-in-law was an invitee when she was injured while returning her grandchildren to their mother after a weekend visit with her son. The court found the ex–mother-in-law’s visit primarily benefited defendant, who was saved a 24-mile round trip to pick up the children and a possible altercation with her ex-husband.

Whether a person is an invitee or a licensee on another’s property is a question of fact when people of reasonable intelligence can disagree over whether the person is on the property for social purposes or to render a service to the property owner. White v Badalamenti, 200 Mich App 434, 505 NW2d 8 (1993). In White, defendants were babysitting plaintiff’s daughter. Plaintiff was injured when she fell on defendants’ steps as she arrived to pick up her child. Plaintiff did not pay defendants for their services, but there was testimony that plaintiff would occasionally babysit defendants’ niece. The court found that this testimony supported a reasonable inference that plaintiff’s presence on defendants’ property was part of a mutually beneficial exchange of services rather than a social visit. And in Kelsey v Lint, 322 Mich App 364, 912 NW2d 862 (2017), involving both statutory and common-law dog bite claims, the court found that the trial court erred in ruling that plaintiff was a trespasser as a matter of law where it could reasonably be inferred that she had an implied license to enter defendant’s property and approach the house. Defendant had held a garage sale on the previous day, and plaintiff was returning the following day to inquire about one of the items.

A landowner owes a person who is on their property as a volunteer the duties associated with the visitor’s status as an invitee, a licensee, or a trespasser. James v Alberts, 464 Mich 12, 626 NW2d 158 (2001).

In Janini v London Townhouses Condo Ass’n, No 164158, ___ Mich ___, ___ NW3d ___ (July 11, 2024), the supreme court held that a co-owner of a condominium unit is an invitee in the common areas of the condo project, and the condo association owes the co-owner a duty to exercise reasonable care to protect the co-owner from dangerous conditions on the land. The court clarified that “the proper inquiry when considering the duty owed in a premises-liability context is who holds possession and control over the land where a person was injured and not merely who owned the land.” Id., slip op at *15. The Janini holding overruled Francescutti v Fox Chase Condo Ass’n, 312 Mich App 640, 886 NW2d 891 (2015), thus making it possible for condo co-owners to sue the condo association for injuries sustained.

In Jeffrey-Moise v Williamsburg Towne Houses Coop, Inc, 336 Mich App 616, 971 NW2d 716 (2021), the court found that defendant housing cooperative retained sufficient control and dominion over the common areas of the cooperative to be considered in possession of them, whereas plaintiff—a cooperative member—merely had a right to use those areas.

B. Invitees

1. Definition

§9.4   An invitee is owed the highest duty in premises liability cases. An invitation to enter land may be either express or implied. In Polston v SS Kresge Co, 324 Mich 575, 578, 37 NW2d 638 (1949), the supreme court held that mere silence, acquiescence, or permission standing alone does not establish an invitation, although a license may be created.

An individual is a business invitee if the visit can reasonably be said to confer a business, commercial, monetary, or other tangible benefit on the owner of the premises. Kreski v Modern Wholesale Elec Supply Co, 429 Mich 347, 415 NW2d 178 (1987) (firefighter on defendant’s property); Kroll v Katz, 374 Mich 364, 132 NW2d 27 (1965) (plumber making repairs to premises). Even if the visitors are family members, the visitors may be business invitees if they are conferring a pecuniary benefit on the owner or possessor. Leveque v Leveque, 41 Mich App 127, 199 NW2d 675 (1972) (sister-in-law on premises to pick up children for babysitting).

For a person to be a business invitee, their presence on another’s premises must confer some benefit on the possessor. Berry v J&D Auto Dismantlers, Inc, 195 Mich App 476, 491 NW2d 585 (1992). Examples of rulings regarding whether a person meets the definition of an invitee include the following:

• A county-employed paramedic responding to an emergency on private property was not an invitee because defendant did not derive a business or commercial benefit from plaintiff’s provision of medical services on its property. McKim v Forward Lodging, Inc, 474 Mich 947, 706 NW2d 202 (2005).
• A child injured on a carnival ride at a church fundraising event is generally an invitee because the church enjoyed a pecuniary benefit from the carnival. Kendzorek v Guardian Angel Catholic Parish, 178 Mich App 562, 444 NW2d 213 (1989), rev’d on other grounds, 454 Mich 564, 563 NW2d 241 (1997).
• A spectator at a basketball tournament held on public streets was not an invitee of the tournament organizers; the organizers did not charge an admission fee to observe the tournament, and plaintiff had no contractual or business relationship with the organizers. Dykema v Gus Macker Enters, Inc, 196 Mich App 6, 492 NW2d 472 (1992).
• A tenant of an apartment complex is an invitee on the premises. Woodbury v Bruckner  (On Remand), 248 Mich App 684, 650 NW2d 343 (2001), remanded on other grounds, 467 Mich 922, 658 NW2d 482 (2002); Prebenda v Tartaglia, 245 Mich App 168, 627 NW2d 610 (2001).
• A social guest of a tenant, even if a licensee regarding the tenant, is considered to be an invitee of the landlord in common areas where the landlord retains possession and control. Petraszewsky v Keeth  (On Remand), 201 Mich App 535, 506 NW2d 890 (1993); see also Stanley v Town Square Coop, 203 Mich App 143, 512 NW2d 51 (1993).

The Michigan Supreme Court disregarded the Restatement (Second) of Torts and held that the classification of public invitee does not exist in Michigan in Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 614 NW2d 88 (2000), rev’g 229 Mich App 504, 582 NW2d 849 (1998). In Stitt, plaintiff tripped and fell over a parking bumper in defendant church’s parking lot, where she was going to attend bible study. Previous Michigan cases recognized the public invitee classification to hold that these plaintiffs enjoy the status of an invitee.

The supreme court has now made clear that for the plaintiff to be an invitee, the plaintiff’s presence on the premises must confer some pecuniary benefit to the defendant. In Kosmalski v St John’s Lutheran Church, 261 Mich App 56, 63, 680 NW2d 50 (2004), the court of appeals held that plaintiff, a volunteer childcare provider at defendant’s vacation bible school, was not on the premises for a commercial purpose because the relationship between plaintiff and the church did not have the “pecuniary quid pro quo that Stitt requires for imposing the higher duty of care owed to invitees.” However, an invitee of a business establishment who ventures into a private area of the establishment without permission or invitation becomes a trespasser and accepts the responsibility for any resulting injuries. Constantineau v DCI Food Equip, Inc, 195 Mich App 511, 491 NW2d 262 (1992).

2. The Duty Owed

§9.5   The duty owed to either business or public invitees places requirements on possessors of land. Land possessors have a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition on the land. Kandil-Elsayed v F&E Oil, Inc, 512 Mich 95, 1 NW3d 44 (2023). For example, the Bowling Center Act, MCL 691.1581–.1585, protects operators from liability for injuries to a bowler resulting from a slip, trip, stumble, or fall substantially caused by a substance on the bowler’s shoes that was acquired from entry or reentry into the bowling center if they post a notice in a conspicuous place near each entrance and exit.

In Prebenda v Tartaglia, 245 Mich App 168, 169, 627 NW2d 610 (2001), the court of appeals stated the rule for the liability of a possessor of land to an invitee as follows:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, and only if, all of the following are true: the possessor (a) knows, or by the exercise of reasonable care would discover, the condition, and should realize that it involves an unreasonable risk of harm to such invitees; (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it; and (c) fails to exercise reasonable care to protect them against the danger.

There must be a dangerous condition on the land for liability to attach. Id. at 170. In Prebenda, the lack of a window in a door leading to a common hallway shared with other apartments was not a dangerous condition.

Possessors of land are not ensurers of their invitees’ safety; rather, the duty is to exercise reasonable care for the invitees’ protection. Bryant v Brannen, 180 Mich App 87, 446 NW2d 847 (1989). However, the duty owed may be modified under certain circumstances.

Defective design

A plaintiff who alleges a defective design of a building must produce expert testimony regarding the unreasonableness of the design or be subject to summary disposition. Lawrenchuk v Riverside Arena, 214 Mich App 431, 542 NW2d 612 (1995). Such testimony often implicates only the architect, designer, or company that constructed the building. This may not constitute a legitimate claim against the premises holder.

Unreasonable risk of harm

In Hammack v Lutheran Soc Servs, 211 Mich App 1, 535 NW2d 215 (1995), plaintiff’s decedent, a man with a developmental disability, drowned after having a seizure in a bathtub while a resident at defendant’s nursing home. The court held there was a factual issue about whether the absence of monitors, alarms, or walkie-talkies in the bathroom created an unreasonable risk of harm. Because defendant’s nursing plan contained an instruction that plaintiff’s decedent not bathe unsupervised, the danger of his using the bathtub was foreseeable, requiring defendant to take reasonable precautions.

Compare Spagnuolo v Rudds #2, 221 Mich App 358, 561 NW2d 500 (1997), in which the court of appeals ruled that the position of a trash barrel on the sidewalk did not create an unreasonable risk of harm, even though plaintiff fell while trying to pass it in her wheelchair, because defendant restaurant could not reasonably foresee that someone in a wheelchair would try to squeeze by the barrel when there was obviously not enough room to do so.

Children

In Bragan v Symanzik, 263 Mich App 324, 687 NW2d 881 (2004), the court of appeals held that landowners owe a heightened duty of care to child invitees and that cases involving children are legally distinguishable from the line of open and obvious cases involving adult invitees. According to Bragan, the court must consider whether a dangerous condition would be open and obvious to a reasonably careful minor; that is, whether the minor would discover the danger and appreciate the risk of harm. When an 11-year-old boy was injured in defendants’ “Fun Barn” attraction when he fell from a 10-foot rope ladder to the barn floor, which was inadequately covered with straw to break such falls, the court held that only a jury could determine whether the ladder and lack of straw amounted to open and obvious dangerous conditions in the eyes of a child and, if open and obvious, whether the condition was unreasonably dangerous in light of the targeted youthful audience.

C. Licensees

1. Definition

§9.6   A licensee is a person on another’s land for a purpose other than business who is not conferring a pecuniary benefit to the premises holder but who has the express or implied permission of the premises holder to be on the premises. Kreski v Modern Wholesale Elec Supply Co, 429 Mich 347, 415 NW2d 178 (1987); see also Sanders v Perfecting Church, 303 Mich App 1, 840 NW2d 401 (2013) (slip-and-fall plaintiff was licensee because defendant church’s invitation was not directly tied to its commercial interests and it primarily invited people onto its premises to attend religious services). Social guests, for instance, are licensees rather than invitees, even though they may be expressly invited onto the possessor’s land. Preston v Sleziak, 383 Mich 442, 175 NW2d 759 (1970); Leveque v Leveque, 41 Mich App 127, 199 NW2d 675 (1972).

Permission to enter another’s premises may be implied when the property owner acquiesces in the known, customary use of the property by the public. However, in Alvin v Simpson, 195 Mich App 418, 491 NW2d 604 (1992), the court rejected plaintiff’s claim that her 10-year-old son was an “implied licensee.” The son had entered a friend’s neighbor’s yard to retrieve a ball and was bitten by a dog. There was no evidence to rebut the property owner’s claim that he never gave the child permission to enter his yard, and it was clear from the child’s testimony that he knew he was trespassing on defendant’s property and did not have permission, either express or implied, from defendant. The testimony of the friend’s mother that her children had permission on prior occasions to enter defendant’s property to retrieve balls and that in her opinion such acts did not constitute trespass was not sufficient to create a question of fact regarding the status of plaintiff’s son.

In Pippin v Atallah, 245 Mich App 136, 626 NW2d 911 (2001), plaintiff minor collided with a chain strung in a parking lot while he rode his bike. The chain had been strung the morning of the collision and blocked a maintained path leading to a park and trail that had been used by the public for at least 10 years. The court cited Alvin with approval for the proposition that permission to enter land may be implied when the owner acquiesces in the public’s known, customary use of the property. One who is privileged to enter land by implied or express consent is a licensee. Pippin, 245 Mich App 136. Because a fact-finder could determine that the minor in Pippin was a licensee, the trial court erred in granting summary disposition on the basis that he was a trespasser.

A social guest is a licensee regarding a tenant the guest is visiting even though the guest may be an invitee regarding the landlord, if they are injured in a common area. Petraszewsky v Keeth  (On Remand), 201 Mich App 535, 506 NW2d 890 (1993); see also Stanley v Town Square Coop, 203 Mich App 143, 512 NW2d 51 (1993).

2. The Duty Owed

a. Adults

§9.7   The duty possessors of land owe to adult licensees is less than the duty owed invitees. A possessor of land is liable for physical harm caused to a licensee by a condition on the land only if all the following conditions apply:

• the possessor knew or should have known of the condition, should have realized that it involved an unreasonable risk of harm to a licensee, and should have expected that the licensee would not discover or realize the danger;
• the possessor failed to exercise reasonable care to make the condition safe or to warn the licensee of the condition and the risk; and
• the licensee did not know or have reason to know of the condition and the risk involved.

Preston v Sleziak, 383 Mich 442, 175 NW2d 759 (1970) (adopting Restatement (Second) of Torts §342); Leep v McComber, 118 Mich App 653, 325 NW2d 531 (1982).

A landowner owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know about if the licensee does not know or have reason to know of the dangers involved. The landowner owes no duty of inspection or affirmative care to make the premises safe for the licensee’s visit. Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 596–597, 614 NW2d 88 (2000). Contrast the duty owed to invitees, which includes a duty to inspect for possible dangerous conditions. See M Civ JI 19.03.

For a licensee, no duty is placed on the landowner to know of every potential danger, even if there might have been an opportunity, though unexercised, to fully inspect. The duty is limited to hazards that the defendant actually knows about, whether or not further inspection would have revealed them. Shaw v Wiegartz, 1 Mich App 271, 135 NW2d 565 (1965).

In Burnett v Bruner, 247 Mich App 365, 636 NW2d 773 (2001), appeal denied, 466 Mich 875 (2002), plaintiff argued that a landowner owes a duty to his licensees either to remove dangerous conditions from the premises or to provide adequate warnings about those conditions. Defendant argued that a licensee must accept the premises in the condition maintained by the landowner for his own use and that a licensee is not entitled to expect that the premises will be prepared for his reception or that precautions will be taken for his safety. The court of appeals agreed with defendant that a landowner owes his licensees only a duty to warn, not to inspect or repair his premises.

The Burnett court also held that it was reversible error for the trial court to give an instruction modeled after M Civ JI 19.06 because the trial court did not include a special instruction that defendant owed plaintiff neither a duty of inspection nor a duty of affirmative care to make the premises safe. M Civ JI 19.06 has been amended in light of the decision in Burnett.

Regarding incidents that occur among the guests, the host has the duty to control their guests, “but only to the extent that the host refrain from wilful and wanton misconduct that results in one guest injuring another guest.” Taylor v Laban, 241 Mich App 449, 457, 616 NW2d 229 (2000). Generally, omissions to act are not viewed as willful and wanton misconduct. Id. In Taylor, defendant host was in her home when altercations between guests arose near her pool and in the street. Because the host was not on the scene and was not able to avoid the harm to plaintiff, the trial court properly granted defendant’s motion for summary disposition.

In D’Ambrosio v McCready, 225 Mich App 90, 570 NW2d 797 (1997), plaintiff, who was spending the night with his girlfriend, woke up in the middle of the night and decided to go downstairs to have a cigarette and a glass of water. On his way down the stairs, he tripped on a towel that defendant girlfriend allegedly left on the stairs, which caused him to fall and rendered him a quadriplegic. The trial court granted summary disposition to defendant girlfriend, which the court of appeals affirmed. The court first held that plaintiff was a mere licensee because he was a social guest. The court then reaffirmed that the only duty a possessor of property owes to a licensee involves dangerous conditions about which defendant knew or had reason to know, unlike the duty owed to an invitee to inspect or ensure that the premises are reasonably safe. In this case the court found that there was insufficient evidence to demonstrate that defendant girlfriend “had knowledge or reason to know that the towel was there.” Id. at 95. Defendant had no duty to inspect the stairway to protect plaintiff-licensee.

In Kosmalski v St John’s Lutheran Church, 261 Mich App 56, 680 NW2d 50 (2004), the court of appeals found a genuine issue of material fact concerning whether defendant church knew or had reason to know of the hidden danger of non–safety-glass doors on its premises. Plaintiff, a volunteer playground supervisor, was injured when a glass door between the playground and an activity room hit her arm and shattered. The fact that a member of the church’s executive council had expressed concern that the door was regularly used by children but was not equipped with safety glass precluded summary disposition on the basis of lack of knowledge. Interestingly, it does not appear as though defendant raised the argument that the glass door in question was an open and obvious hazard. Of course, using the standard, “whether a reasonable person, upon casual inspection could have discovered the danger,” one would think that the court would find a glass door to constitute an open and obvious hazard. The court, however, never reached that issue.

When the licensee is an adult, the fact that the defective condition is obvious is usually sufficient to apprise the licensee of the full extent of the risk involved. DeBoard v Fairwood Villas Condo Ass’n, 193 Mich App 240, 483 NW2d 422 (1992). Thus, in DeBoard, when plaintiff was aware of a protruding deck board before tripping over it, defendant had no duty to warn plaintiff of the danger of tripping over that defective board. Similarly, when the licensee was aware that a lawnmower was being used in the vicinity, defendant had no duty to warn plaintiff before she was struck in the eye by a projectile ejected by the lawnmower. Campbell v Kovich, 273 Mich App 227, 731 NW2d 112 (2006).

b. Children

§9.8   When children are involved, a special rule imposing a higher degree of care may apply. Preston v Sleziak, 383 Mich 442, 175 NW2d 759 (1970), and Moning v Alfono, 400 Mich 425, 254 NW2d 759 (1977), both discuss the duty possessors of land owe to child social guests.

In Klimek v Drzewiecki, 135 Mich App 115, 352 NW2d 361 (1984), while plaintiff was a social guest visiting defendant Drzewiecki, her four-year-old child was bitten on the face by a dog belonging to defendant’s neighbor. Plaintiff’s complaint alleged that the dog’s attack was unprovoked, that defendant knew at the time that the dog was loose and unsupervised, that the dog had previously bitten someone, and that the child was outside the residence without adult supervision. The Klimek court recognized a duty on the part of occupiers of land to exercise reasonable or ordinary care to prevent injury to child social guests and concluded that plaintiff’s complaint was sufficient to state a claim on which relief could be granted for the breach of this duty. Id. at 120.

A landowner is required to take into consideration that a child’s ability to appreciate the full extent of the risk is different from that of an adult. In Kosmalski v St John’s Lutheran Church, 261 Mich App 56, 680 NW2d 50 (2004), plaintiff, a volunteer playground supervisor, was injured when a non–safety-glass door between the playground and an activity room hit her arm and shattered. The court of appeals concluded that because children regularly used the door and because children are unlikely to appreciate the risk of harm that could result from the shattering of a non–safety-glass door, there was a genuine issue of fact regarding whether the door presented an unreasonable risk of harm.

In Liang v Liang, 328 Mich App 302, 936 NW2d 710 (2019), the court held that parental immunity bars a minor’s negligent supervision claims against their parent, even if the alleged negligent supervision occurred at the parent’s business. The court also held, however, that parental immunity does not extend to premises liability claims against the business itself, as landowners have a duty to take reasonable or ordinary care to prevent injury to child licensees from dangerous conditions on the land. Id.

D. Trespassers

1. Definition

§9.9   A trespasser is a person who goes on the premises of another without an express or implied invitation, for their own purposes, and not in the performance of any duty to the owner. See Alvin v Simpson, 195 Mich App 418, 491 NW2d 604 (1992); see also Restatement (Second) of Torts §329. Unlawful intent is not required for the person to be a trespasser. M Civ JI 19.01.

2. The Duty Owed

a. Adults

§9.10   What's New in this Section   Trespassers are lowest on the legal scale in terms of the level of care required of owners or occupiers of land. As a general rule, a landowner is liable to a trespasser only if the landowner is grossly negligent or commits a willful and wanton act that results in injury to the trespasser. Wymer v Holmes, 429 Mich 66, 71 n1, 412 NW2d 213 (1987). However, the rule is defined depending on whether the trespasser’s presence is known or unknown to the premises owner. In addition, a special rule exists for children in the case of an attractive nuisance. See §9.21.

The Michigan Legislature codified the law of trespass liability in the Trespass Liability Act, MCL 554.581 et seq. The act provides that an owner, lessee, or other lawful occupant of land “owes no duty of care to a trespasser and is not liable to a trespasser for physical harm caused by the possessor’s failure to exercise reasonable care to put the land in a condition reasonably safe for the trespasser or to carry on activities on the land so as not to endanger trespassers.” MCL 554.583(1). The act also outlines exceptions under which the possessor of land would be subject to liability for a trespasser’s injury or death, including “willful and wanton misconduct” by the possessor, failure of the possessor “to use ordinary care to prevent injury to the trespasser arising from active negligence,” a possessor’s failure to carry on an activity in an area on which they know trespassers “consistently intrude” with “reasonable care for the trespasser’s safety,” or the injury of a child trespasser by an artificial condition on the land under certain specific circumstances. MCL 554.583(2)(a)–(d). The act clarifies that it does not increase a possessor’s liability and does not affect any immunity or defenses established by other statutes or Michigan common law. MCL 554.583(3).

In Polston v SS Kresge Co, 324 Mich 575, 37 NW2d 638 (1949), defendant leased the ground floor of a two-story building as well as a 10-foot strip of land that ran across the front of the building. The strip was covered by a sidewalk that extended in width beyond the strip defendant leased, onto the public right-of-way to a curb. The strip did not differ in appearance from the public sidewalk, and defendant permitted the public to use it. Plaintiff was a window washer employed by the building’s owner to wash the second-floor windows of the building. He rested his ladder on defendant’s 10-foot strip. An employee of defendant lowered an awning in front of the building, knocking the ladder down and causing plaintiff to fall and suffer injuries. Defendant’s employee admitted that he could have seen the ladder from where he stood lowering the awning.

Although the supreme court concluded that plaintiff was a licensee, it discussed the obligation of possessors of land to determine the presence of others on their land. Given the character of the property, the Polston court concluded that defendant was well aware that his strip was commonly used by the public as a sidewalk, that employees of plaintiff’s employer were accustomed to placing ladders in front of the store building to wash windows, and that the placement interfered with the use of the awning. In such a situation, a greater duty rests on the possessor of the premises to anticipate and look out for the presence of licensees or known trespassers on a commonly traveled way or path than of licensees or trespassers generally on the premises. Id. at 581.

Similarly, in Lyshak v Detroit, 351 Mich 230, 88 NW2d 596 (1958), the court adopted the principle of law articulated in the Restatement of Torts §334 (now Restatement (Second) of Torts §334) that a possessor of land who knows or should know that trespassers constantly intrude on a limited area of land is subject to liability for harm to them if they carry on an activity there involving a risk of death or serious bodily harm without reasonable care for their safety.

Thus, the rule is as follows: If the defendant had reason to anticipate the presence of the licensee or trespasser, the defendant is bound to use ordinary care to prevent injury resulting from the defendant’s active negligence. Polston. Of course, if the hazard was open and obvious, there would be no liability on the part of the defendant, regardless of the status of the plaintiff. See Pippin v Atallah, 245 Mich App 136, 626 NW2d 911 (2001). The open and obvious hazard doctrine, therefore, has become an issue in a great many premises liability cases. See §§9.13–9.15 for further discussion of open and obvious hazards.

Note that an invitee of a business establishment who ventures into an area of the establishment without permission or invitation becomes a trespasser and accepts responsibility for any resulting injuries. Constantineau v DCI Food Equip, Inc, 195 Mich App 511, 491 NW2d 262 (1992). In Constantineau, plaintiff salesman became a trespasser when he wandered around an area of defendant’s store without permission.

In Marion v Grand Trunk W RR Co, No 164298, ___ Mich ___, ___ NW3d ___ (June 5, 2024), a case involving the death of a 14-year-old boy who was walking on train tracks, the Michigan Supreme Court held that the presumption that a person on railroad tracks will get out of the way of a moving train is overcome when it becomes apparent that the person will not or cannot move to safety, at which point the train operator has a duty to take steps to avoid a collision. The court affirmed the court of appeals denial of summary disposition for defendants, finding that there were questions of fact concerning when it became apparent that the victim was not going to move or what reasonable actions the operator was required to take to avoid colliding with him. The case was remanded to the trial court for further proceedings.

b. Children

§9.11   The legal status of a person who enters another’s land is not changed by the fact that the person is a child. Morris v Lewis Mfg Co, 331 Mich 252, 49 NW2d 164 (1951); see also Thomason v Olive Branch Masonic Temple, 156 Mich App 736, 401 NW2d 911 (1986) (claim by child trespasser under Recreational Use Act (RUA), part of Natural Resources and Environmental Protection Act (NREPA), requires finding of gross negligence). Moreover, a landowner is not obligated to keep their premises safe for the use of child trespassers. Morris. As with an adult, the issue is whether the landowner knew or should have known of the child trespasser’s presence. Lyshak v Detroit, 351 Mich 230, 88 NW2d 596 (1958).

A 10-year-old child who enters the property of a friend’s neighbor to retrieve a ball without either express or implied permission of the property owner is a trespasser. Alvin v Simpson, 195 Mich App 418, 491 NW2d 604 (1992).

See Edward Meany, Standard of Care Involving Children, 72 Mich BJ 574 (1993).

Note that a condition of the land that is an attractive nuisance to a child may be an additional basis for liability. See §9.21.

IV.   Causes of Action

A. Slip/Trip and Fall

1. Snow and Ice

§9.12   Invitees

In Kandil-Elsayed v F&E Oil, Inc, 512 Mich 95, 1 NW3d 44 (2023), although the supreme court reversed numerous prior holdings based on the open and obvious hazard doctrine, it reaffirmed its prior holding on the duty owed to an invitee on slip-and-fall cases on snow or ice. Significantly, the court reaffirmed the general duty standard first set forth by the court in Quinlivan v Great Atlantic & Pacific Tea Co, 395 Mich 244, 235 NW2d 732 (1975). That standard, which should be included as a jury instruction in a trial involving a slip and fall on snow or ice, is whether the defendant took reasonable measures “within a reasonable time after an accumulation of ice and snow to diminish the hazard of the injury to the invitee.” Kandil-Elsayed, 512 Mich at 150 (quoting Quinlivan, 395 Mich at 261). See §9.13 for further discussion of the open and obvious doctrine.

In Janson v Sajewski Funeral Home, Inc, 486 Mich 934, 935, 782 NW2d 201 (2010), the supreme court reversed the court of appeals and reaffirmed the precedent established in Slaughter v Blarney Castle Oil Co, 281 Mich App 474, 483, 760 NW2d 287 (2008), that invisible, black ice constitutes an open and obvious condition when there are “indicia of a potentially hazardous condition,” including the “specific weather conditions present at the time of plaintiff’s fall.” Because the slip and fall at issue occurred in winter during typical “wintry conditions” (including freezing temperatures, snow on the ground, freezing rain, and light snow), the court ruled that an average user of ordinary intelligence would discover the danger on casual inspection.

In Ververis v Hartfield Lanes  (On Remand), 271 Mich App 61, 718 NW2d 382 (2006), the court of appeals held that a snow-covered surface presents an open and obvious danger as a matter of law because of the high probability that it may be slippery. The court noted that established precedents have already recognized that an icy surface presents an open and obvious danger as a matter of law.

In Jeffrey-Moise v Williamsburg Towne Houses Coop, Inc, 336 Mich App 616, 971 NW2d 716 (2021), the court found that as a premises possessor, defendant housing cooperative had no duty to warn of open and obvious dangers. The court determined that the trial court erred in finding that there was an issue of fact regarding the open and obvious nature of the black ice plaintiff slipped on when there were “sufficient other ‘indicia of a potentially hazardous condition’” in the form of assorted wintry conditions: cold temperatures, falling snow, snow on the ground, and visible patches of ice. Id. at 634 (quoting Janson, 486 Mich at 935).

Although these cases would no longer support a motion for summary disposition on the issue of duty, they remain relevant in presenting the case to a jury at trial. Specific jury instructions, tailored to the facts of the case, should be given at trial. Of course, if reasonable minds could not differ on these issues, a motion for summary disposition may still be appropriate.

Liability of snow removal contractors

In Fultz v Union-Commerce Assocs, 470 Mich 460, 683 NW2d 587 (2004), the supreme court eliminated most slip-and-fall cases against snow removal companies. There will be no liability on the part of the snow removal contractor unless the contractor owed a duty to the plaintiff that is separate and distinct from the defendant’s contractual obligation. If no independent duty exists, the plaintiff does not have a cause of action against the snow removal contractor. Note that the Michigan Supreme Court clarified Fultz in Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 159, 809 NW2d 553 (2011), holding that “a contracting party’s assumption of contractual obligations does not extinguish or limit separately existing common-law or statutory tort duties owed to noncontracting third parties in the performance of the contract.”

Unless the plaintiff is specifically named as a third-party beneficiary to the snow removal contract, the plaintiff will not state a claim based on a theory that the plaintiff was a third-party beneficiary to the contract. See, e.g., Teufel v Watkins, 267 Mich App 425, 705 NW2d 164 (2005); Koenig v City of S Haven, 460 Mich 667, 597 NW2d 99 (1999).

In Derbabian v Mariner’s Pointe Assocs Ltd P’ship, 249 Mich App 695, 644 NW2d 779 (2002), the court determined that defendant snow removal contracting company was not in possession and control of the parking lot on which plaintiff slipped and fell, so it was not subject to liability under a premises liability theory. Nothing in its contract gave it exclusive authority over the shopping center parking lot; it was not in possession of the lot at the time of the injury; and the shopping center tenants, rather than defendant, were in the best position to prevent plaintiff’s injury. In addition, there was no showing that defendant was negligent under its snow removal contract. Moreover, plaintiff could not pursue an action in tort against defendant for nonperformance of a contract because defendant had no independent duties regarding the parking area apart from those specified in the contract.

Similarly, in Joyce v Rubin, 249 Mich App 231, 642 NW2d 360 (2002), there was no evidence that defendant snow removal contractor had failed to properly perform its duties under its contract. The contractor was required to work at the premises only when there was a snowfall of at least two inches. On the date plaintiff fell, there was only a trace of snowfall. Therefore, defendant breached no duty through a failure of exercising ordinary care in performing its snow removal contract.

2. Open and Obvious Hazard Doctrine

a. In General

§9.13   In July 2023, the Michigan Supreme Court in Kandil-Elsayed v F&E Oil, Inc, 512 Mich 95, 1 NW3d 44 (2023), overruled Lugo v Ameritech Corp, Inc, 464 Mich 512, 629 NW2d 384 (2001), and its longstanding precedent that a property owner is under no duty to protect an “invitee from an unreasonable risk of harm caused by a dangerous condition on the land,” id. at 516, if the condition is open and obvious. The supreme court also rejected Lugo’s “special aspects” doctrine, which held that land possessors could be held liable for an open and obvious condition only when an invitee provided evidence of special aspects of the condition, such as when the condition was effectively unavoidable or presented a substantial risk of death or severe injury.

In sum, the Kandil-Elsayed court held that land possessors continue to have a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land, even if the condition is open and obvious. The three traditional status-based categories—invitee, licensee, and trespasser—remain. Most importantly, the open and obvious nature of a condition remains a relevant inquiry in a premises liability case; however, it is relevant to the defendant’s breach and the plaintiff’s comparative fault. It is not relevant to the land possessor’s duty. To the extent prior cases have held that it should be analyzed as a part of a land possessor’s duty, those cases are overruled. Kandil-Elsayed.

Note that the court of appeals has given Kandil-Elsayed retroactive effect, holding in Gabrielson v Woods Condo Ass’n, Inc, Nos 364809, 364813, ___ Mich App ___, ___ NW3d ___ (Jan 4, 2024), that the Kandil-Elsayed decision establishes a new principle of law and satisfies the three-factor test for the application of retroactivity established in Linkletter v Walker, 381 US 618 (1965), rendering it appropriate for retroactive application to all cases pending on direct appeal. See also Wenzel v Tremonti, No 23-1128 (6th Cir Dec 12, 2023); Muczynski v UnaSource Health, LLC, No 363124 (Mich Ct App Aug 31, 2023) (unpublished).

With the Kandil-Elsayed decision, the issue of whether the condition is an open and obvious hazard is now one for the jury, not the court, to decide, if reasonable people could differ. The jury must decide whether the dangers are known to the invitee or are so obvious that the invitee might reasonably be expected to discover them, and an invitor owes no duty to protect or warn the invitee unless they should anticipate the harm despite knowledge of it on behalf of the invitee.

Whether a danger is open and obvious depends on whether it is reasonable to expect that an average person with ordinary intelligence would have discovered the danger on casual inspection. Novotney v Burger King Corp  (On Remand), 198 Mich App 470, 474–475, 499 NW2d 379 (1993). The test is an objective one, requiring the jury to consider whether genuine issues of material fact exist as to whether a reasonable person would foresee the “particular risk at issue.” Hughes v PMG Bldg, Inc, 227 Mich App 1, 11, 574 NW2d 691 (1997). See §9.12 for a discussion of how the courts have applied the open and obvious rule to slip-and-fall cases involving snow and ice.

According to the Sixth Circuit, the open and obvious hazard doctrine applies to activities as well as conditions on the land. Kessler v Visteon Corp, 448 F3d 326 (6th Cir 2006) (plaintiff raised genuine issue of material fact about whether operation of forklift in proximity to pedestrians on loading dock was open and obvious activity that presented special aspects of danger under Michigan law). The Bowling Center Act, MCL 691.1581–.1585, protects operators from liability for injuries to a bowler resulting from a slip, trip, stumble, or fall substantially caused by a substance on the bowler’s shoes that was acquired from entry or reentry into the bowling center if they post a notice in a conspicuous place near each entrance and exit.

When a claim sounds in ordinary negligence, the open and obvious danger doctrine is inapplicable. Laier v Kitchen, 266 Mich App 482, 702 NW2d 199 (2005). However, when the injury is caused by a condition on the land, a plaintiff may not claim ordinary negligence to circumvent the open and obvious doctrine. Jahnke v Allen, 308 Mich App 472, 865 NW2d 49 (2014) (plaintiff who was injured when she fell off concrete pavers could not bring claim for negligence when facts supported only claim for premises liability); see also Pugno v Blue Harvest Farms LLC, 326 Mich App 1, 930 NW2d 393 (2018) (holding that injury claims based entirely on condition of land sound solely in premises liability; unless plaintiff alleges conduct giving rise to independent ordinary negligence theory, plaintiff may not proceed on both claims).

b. Doctrine Inapplicable

§9.14   What's New in this Section   The open and obvious defense does not apply to a claim for breach of a landlord’s statutory duty to maintain premises in reasonable repair and in accordance with health and safety laws. MCL 554.139(1)(a), (b); Woodbury v Bruckner, 467 Mich 922, 658 NW2d 482 (2002); Benton v Dart Props, 270 Mich App 437, 715 NW2d 335 (2006) (sidewalk in apartment complex is common area under MCL 554.139(1)(a), and sidewalk covered with ice is not fit for its intended use); see also Holder v Anchor Bay Invs, Inc, No 364401, ___ Mich App ___, ___ NW3d ___ (Mar 21, 2024) (holding that an exterior stairway leading to plaintiff’s apartment was a “common area” under MCL 554.139(1)).

Practice Tip

• In Janini v London Townhouses Condo Ass’n, No 164158, ___ Mich ___, ___ NW3d ___ (July 11, 2024), the supreme court held that a co-owner of a condominium unit is an invitee in the common areas of the condo project, and the condo association owes the co-owner a duty to exercise reasonable care to protect the co-owner from dangerous conditions on the land. The Janini holding overruled Francescutti v Fox Chase Condo Ass’n, 312 Mich App 640, 886 NW2d 891 (2015), thus making it possible for condo co-owners to sue the condo association for injuries sustained. Note, however, that in Jeffrey-Moise v Williamsburg Towne Houses Coop, Inc, 336 Mich App 616, 971 NW2d 716 (2021), the court found that MCL 554.139(1)(a) does not apply to housing cooperatives. The court held that as in the relationship between a condominium development and a condominium unit owner, the relationship between a housing cooperative and a member is not one of lessor of land and tenant.

To the extent that Teufel v Watkins, 267 Mich App 425, 705 NW2d 164 (2005), held that a lessor’s duty to maintain premises and common areas “fit for the use intended” under MCL 554.139(1)(a) could never include snow and ice removal, it was overruled in Allison v AEW Capital Mgmt, LLP, 481 Mich 419, 751 NW2d 8 (2008). However, the Allison court read the language “unfit for the use intended” very narrowly and cautioned that, in most circumstances, a plaintiff will not have a cause of action under the act for a slip and fall outside of the tenant’s apartment. Under the facts of the case, snow and ice did not make the premises “unfit for the use intended” because plaintiff was able to get to his car and use the premises as intended. A strict reading of the statute, according to the court, revealed that a cause of action would arise under the statute only if accumulation of snow or ice were so substantial that the tenant could not get to his car or his apartment. But note that in Hadden v McDermitt Apartments, LLC, 287 Mich App 124, 782 NW2d 800 (2010), in a 2-1 decision, the court distinguished Allison by finding that ice on an outdoor stairwell made the steps unfit for the purpose intended. The court found, as the dissent pointed out, that the steps were not fit for the use intended, despite plaintiff’s testimony that she had used the steps three times previously without a problem.

3. Notice

§9.15   Michigan courts have long held that to state a prima facie premises liability case, the plaintiff must prove that the defendant caused the alleged defective condition, knew of the alleged defective condition, or should have known of the defective condition (constructive notice). Ritter v Meijer, 128 Mich App 783, 341 NW2d 220 (1983). Plaintiffs have to walk a fine line. If the evidence indicates that the alleged hazard was noticeable, the defendant may have a basis to have the case dismissed pursuant to the open and obvious hazard doctrine (see §9.13). On the other hand, if the evidence demonstrates that the alleged hazard could not be seen, the defendant may have a basis for bringing a motion for summary disposition based on lack of notice. In other words, if the plaintiff could not see the alleged hazard, the defendant could not see the hazard either; therefore, the defendant did not have notice of the hazard.

Notice is an element in proving a premises liability case. M Civ JI 19.03. The plaintiff has the burden of proving notice. M Civ JI 16.02A. The defendant, on the other hand, has the burden of proving its affirmative defenses. The Michigan Supreme Court has held that the defendant is entitled to summary disposition under MCR 2.116(C)(10) if it can show that the plaintiff presented insufficient proof to establish the notice element of the claim. Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 890 NW2d 344 (2016). It is not the defendant’s burden to provide “proof of reasonable inspection” to show lack of constructive notice. Id. The Lowrey court determined that because plaintiff failed to establish a question of fact about whether defendant knew or should have known of the hazardous condition, the court of appeals erred in denying defendant summary disposition. See also Albitus v Greektown Casino, LLC, 339 Mich App 557, 984 NW2d 511 (2021). When the possessor is the one who created the condition at issue, notice as to the condition is imputed to the possessor. Pugno v Blue Harvest Farms LLC, 326 Mich App 1, 930 NW2d 393 (2018) (citing Pippin v Atallah, 245 Mich App 136, 145 n2, 626 NW2d 911 (2001)).

Plaintiffs cannot base their claim of the defendant’s notice of the condition on speculation or conjecture. For example, in Serinto v Borman Food Stores, 380 Mich 637, 158 NW2d 485 (1968), plaintiff was a business invitee of defendant’s Farmer Jack grocery store. Plaintiff claimed that she slipped on a broken mayonnaise jar in the aisle. She did not see the mayonnaise because it blended in with the white floor tile. Plaintiff testified that she was in the store for 45–50 minutes and heard nothing that sounded like breaking glass. Based on that “negative evidence,” plaintiff argued that the mayonnaise jar must have been broken for more than 45 minutes and that, therefore, defendant should have known of the broken jar. The court found that plaintiff had not proven a prima facie case, i.e., that defendant had notice or constructive notice of the hazard. Plaintiff’s evidence that she did not hear a jar breaking was not sufficient because such evidence amounted only to speculation.

In Clark v Kmart Corp, 465 Mich 416, 634 NW2d 347 (2001), the supreme court concluded that a jury question existed regarding whether a dangerous condition existed long enough in defendant’s store that defendant’s employees should have had notice of it. Plaintiff slipped and fell on grapes in a closed checkout lane in the store. Her husband testified that he saw shoe print marks on the floor leading away from the smashed grapes, and store personnel testified that the checkout lane had been closed for about an hour before the fall. Because the jury could infer from this evidence that the grapes had been on the floor for at least an hour and that defendant should have discovered and remedied the condition, the trial court correctly refused to direct a verdict for defendant.

In Banks v Exxon Mobil Corp, 477 Mich 983, 725 NW2d 455 (2007), plaintiff alleged that he was a business invitee at defendant’s gas station and was pumping gas when the gasoline pump nozzle suddenly broke and splashed gasoline in his face, causing serious injury to his eyes. The court of appeals, in an unpublished opinion, held defendants were entitled to summary disposition on the issue of constructive notice of the dangerous condition of the gasoline pump. However, the supreme court reversed in an order:

Constructive notice may arise not only from the passage of time itself, but also from the type of condition involved, or from a combination of the two elements. [Kroll v Katz, 374 Mich 364, 372, 132 NW2d 27 (1965)]. Generally, the question of whether a defect has existed a sufficient length of time and under circumstances that the defendant is deemed to have notice is a question of fact, and not a question of law. Id., p 371 (citing [Cruz v City of Saginaw, 370 Mich 476, 481, 122 NW2d 670 (1963)]). Because a reasonable jury could conclude based on the facts presented to the trial court that the defendants should have discovered the defect, summary disposition was improperly granted.

Banks, 477 Mich at 493–494.

4. Active Negligence Requirement

§9.16   Michigan courts have held in premises liability cases that the plaintiff must demonstrate that the defendant was “actively negligent” in causing an accident to take place. For example, in Yearsley v City Bank, 361 Mich 574, 106 NW2d 162 (1960), plaintiff, supported by her son’s testimony, claimed that she slipped on a slippery, shiny, and highly polished tile floor. Plaintiff alleged improper use of materials, improper wax, and over-polishing by employees. The trial court directed a verdict for defendant. The Michigan Supreme Court affirmed, holding that plaintiff did not prove that such a waxed floor was an unusual condition so as to impose liability. Accordingly, the court found that the directed verdict was proper because plaintiff had not proven actionable negligence on the part of defendant.

Similarly, in Corbett v Heck, 20 Mich App 708, 174 NW2d 618 (1969), plaintiff caught her heel in the doormat going into defendant’s premises. The doormat was not unusual and was of common construction. The trial court directed a verdict for defendant. The court of appeals held that plaintiff had not proven any defect. As such, there was no actionable negligence and the directed verdict was proper.

The Bowling Center Act, MCL 691.1581–.1585, protects operators from civil liability for injuries to a bowler resulting from a slip or fall substantially caused by a substance on the bowler’s shoes that was acquired from entry or reentry into the bowling center if they post a notice in a conspicuous place near each entrance and exit. This protection does not apply if the injury results from acts or omissions amounting to willful or wanton misconduct or if the operator fails to maintain the premises in a reasonably safe condition and the condition substantially causes the injury to the bowler.

Accordingly, plaintiffs should be careful to demonstrate that the accident occurred because of some act of negligence that caused an unusual defect on the premises. Defendants should attempt to demonstrate that the alleged defect was not really a defect at all, but rather, that the premises were maintained in a normal fashion and that customers should know they will encounter such normal conditions on the premises.

In a similar vein, plaintiffs must be able to prove what caused them to slip and fall. The seminal case in this area is Stefan v White, 76 Mich App 654, 257 NW2d 206 (1977). In that case, plaintiff tripped and fell on the threshold of defendant’s doorway. Plaintiff admitted at her deposition that she did not know the cause of her fall. After her fall, her husband discovered a metal strip that came out from the floor and filed an affidavit describing the floor’s condition.

Summary disposition was granted to defendant. The court found that the mere occurrence of a fall is not enough to raise the inference of negligence. There was no causal link between plaintiff’s fall and defendant’s act of negligence. Plaintiff’s case was based only on conjecture.

Under Stefan, plaintiff’s counsel must demonstrate a defect as well as a causal relationship between that defect and the plaintiff’s fall. Defense counsel, on the other hand, should argue that the plaintiff has either not identified a defect or not proven that there was a causal relationship between an identified defect and the fall.

In Clark v Kmart Corp, 465 Mich 416, 634 NW2d 347 (2001), the supreme court quoted with approval from Serinto v Borman Food Stores, 380 Mich 637, 640–641, 158 NW2d 485 (1968), regarding the duties of a storekeeper to customers involving dangerous conditions. Serinto states that the storekeeper has a duty to provide reasonably safe aisles for customers and is liable for injuries resulting from unsafe conditions caused, among other reasons, by the active negligence of the storekeeper or their employees.

B. Third-Party Assaults

1. General Rule

§9.17   The general rule is that a business invitor does not have a duty to protect its invitees from the criminal acts of third parties. Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 418 NW2d 381 (1988).

In numerous cases following Williams, courts ruled that business invitors were not liable for third-party criminal acts, under different circumstances. For example:

• Merchants are not subject to a higher standard of duty in high-crime areas. Papadimas v Mykonos Lounge, 176 Mich App 40, 439 NW2d 280 (1989).
• Merchants are not liable for failing to provide security guards for adjacent parking lots used by customers. Douglas v Elba, Inc, 184 Mich App 160, 457 NW2d 117 (1990).
• Defendant was not required to protect against the possibility of criminals entering the property through a hole in a boundary fence; the property was open to the public and a person could enter the property by other means. Harkins v Northwest Activity Ctr, Inc, 434 Mich 896, 453 NW2d 677 (1990).
• Despite past criminal activity in the area, defendant had no duty to protect its patrons from criminal activity or to provide security guards. Jackson v White Castle Sys, 205 Mich App 137, 517 NW2d 286 (1994).
• Defendant bank was not liable for injuries sustained by a customer who was attacked by a third party while using defendant’s automatic teller machine. Fuga v Comerica Bank–Detroit, 202 Mich App 380, 509 NW2d 778 (1993).

The supreme court virtually eliminated causes of action involving criminal attacks of third parties. In MacDonald v PKT Inc, 464 Mich 322, 628 NW2d 33 (2001), plaintiff brought an action against Pine Knob Music Theater for injuries suffered during a concert at defendant’s theater as a result of sod being thrown by other concertgoers. She alleged that defendant was negligent by failing to provide proper security, failing to stop the performance when it should have known that continuing the performance would incite the crowd, failing to screen the crowd to eliminate intoxicated individuals, and selling alcoholic beverages. The court held that a premises holder’s sole duty is to respond reasonably to problems that occur on the premises. Fulfilling the duty to respond reasonably requires only that an invitor make reasonable efforts to contact the police:

To summarize, under Mason, generally merchants “have a duty to use reasonable care to protect their identifiable invitees from the foreseeable criminal acts of third parties.” The duty is triggered by specific acts occurring on the premises that pose a risk of imminent and foreseeable harm to an identifiable invitee. Whether an invitee is readily identifiable as being foreseeably endangered is a question for the factfinder if reasonable minds could differ on this point. While a merchant is required to take reasonable measures in response to an ongoing situation that is taking place on the premises, there is no obligation to otherwise anticipate the criminal acts of third parties. Consistent with Williams, a merchant is not obligated to do anything more than reasonably expedite the involvement of the police. We also reaffirm that a merchant is not required to provide security guards or otherwise resort to self help in order to deter or quell such occurrences.

Id. at 338 (citations omitted).

In Mouzon v Blackwell Ctr, 308 Mich App 415, 864 NW2d 606 (2014), the court of appeals held that a merchant has no duty to provide armed, visible security guards to prevent criminal acts of third parties in its establishment, and providing guards does not subject the merchant to liability for the guards’ negligent actions. The court further held that the merchant’s duty to call the police when a criminal act occurs is met when police are already present at the scene.

Accordingly, the only potential cause of action that remains is if there is evidence that someone asked the invitor to call the police and the invitor refused. Under the broad language used by the supreme court in MacDonald, any other cause of action has been eliminated.

2. Exceptions to General Rule

a. Foreseeable Danger

§9.18   In Mason v Royal Dequindre, Inc, 455 Mich 391, 566 NW2d 199 (1997), the court held that a merchant could be liable for failing to take reasonable measures to protect an invitee from harm caused by criminal acts of third parties if the harm was foreseeable to an identifiable invitee and preventable by the exercise of reasonable care. 455 Mich at 393.

However, in MacDonald v PKT Inc, 464 Mich 322, 628 NW2d 33 (2001), the supreme court expressly overruled that portion of Mason that indicated that a merchant has a duty to take precautions against the criminal conduct of third parties that may be reasonably anticipated. 464 Mich at 334 n10.

According to MacDonald, there is no general duty to anticipate and prevent criminal activity even when there have been prior incidents and the site of the injury is a business premises. Any duty is limited to reasonably responding to situations that occur on the premises and that pose a risk of imminent and foreseeable harm to identifiable invitees, and the duty to respond is limited to contacting the police. This limited duty to expedite police involvement also extends to landlords who are put on notice of criminal acts occurring in common areas under their control. Bailey v Schaaf, 494 Mich 595, 835 NW2d 413 (2013); see also Bailey v Schaaf  (On Remand), 304 Mich App 324, 852 NW2d 180 (2014) (affirming trial court’s dismissal of plaintiff’s claim against security company but reversing its dismissal of claims against apartment complex and complex’s owner-operator). Note that the Michigan Supreme Court, in an order denying leave to appeal in all other respects, vacated the part of the court of appeals opinion “setting forth a hypothetical scenario in which defendant Hi-Tech Protection and its employees were not in the business of providing security, because the panel’s conclusion in that regard is contrary to law.” Bailey v Schaaf, 497 Mich 927, 856 NW2d 692 (2014) (citing Upjohn Co v New Hampshire Ins Co, 438 Mich 197, 214, 476 NW2d 392 (1991)).

b. Other Exceptions

§9.19   Another exception to the general rule of nonliability for the criminal acts of third parties in the context of premises liability law is recognized when the defendant is actually harboring criminal activity and profiting from that activity. In Wagner v Regency Inn Corp, 186 Mich App 158, 463 NW2d 450 (1990), the court held that plaintiff had stated a claim against a motel for injuries caused by third parties. The evidence demonstrated that defendant actually harbored criminals and criminal activity, including prostitution and drug trafficking, at its motel. Therefore, the court held that the unique facts of Wagner provided an exception to the general rule of no duty.

In addition, if the plaintiff requests that the defendant allow them to use the phone to call the police and the defendant refuses, the plaintiff may have stated a claim. Such a cause of action was recognized in Mills v White Castle Sys, Inc, 167 Mich App 202, 421 NW2d 631 (1988).

Landlords may have a broader duty to control criminal assaults than merchants have. See §9.20.

V.   Special Circumstances

A. Landlords and Innkeepers

§9.20   In Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 418 NW2d 381 (1988), the court declined to impose a duty on merchants to control the incidence of crime, a duty that properly belongs to the police. However, the holding in Williams is limited to businesses generally open to the public. See §9.17. The Williams court noted that there is a difference between the duties of landlords and merchants: “We find that a landlord has more control in his relationship with his tenants than does a merchant in his relationship with his invitees. Should a dangerous condition exist in the common areas of a building which tenants must necessarily use, the tenants can voice their complaints to the landlord.” 429 Mich at 502 n17.

Caselaw has described the duties and liabilities specific to landlords. First, landlords are liable to the extent that foreseeable criminal acts are facilitated by their failure to keep the physical premises under their control reasonably safe (e.g., poor locks, no locks, or poor lighting) or in good repair (e.g., broken locks). Johnston v Harris, 387 Mich 569, 198 NW2d 409 (1972); Bryant v Brannen, 180 Mich App 87, 98, 446 NW2d 847 (1989).

Second, landlords may be held liable for unreasonable risks of harm caused by dangerous third parties in the common areas of the premises. In Samson v Saginaw Prof’l Bldg, Inc, 393 Mich 393, 224 NW2d 843 (1975), a mental health clinic leased space on the fourth floor of a five-story building. Other building tenants voiced concerns to defendant-owner about their safety on the building stairs and elevators, which were also used by the clinic’s patients. However, defendant-owner took no action. Plaintiff, an employee of a fifth-floor tenant, was attacked in an elevator by a clinic patient.

The court held that

the landlord has retained his responsibility for the common areas of the building which are not leased to his tenants. The common areas such as the halls, lobby, stairs, elevators, etc., are leased to no individual tenant and remain the responsibility of the landlord. It is his responsibility to insure that these areas are kept in good repair and reasonably safe for the use of his tenants and invitees.

The existence of this relationship between the defendant and its tenants and invitees placed a duty upon the landlord to protect them from unreasonable risk of physical harm.

Id. at 407.

Samson imposes a duty on landlords to investigate and take available preventive measures when their tenants inform them that a possible dangerous condition exists in the common areas of the building. Contrast Bryant, which involved the shooting of plaintiff tenant by an employee of defendant building owner, who was also a tenant. The court in Bryant found for defendant because the shooting had not occurred in a common area and the employee had acted outside the scope of his employment.

In Holland v Liedel, 197 Mich App 60, 494 NW2d 772 (1992), plaintiff sued her landlord for injuries she suffered when she was abducted from the underground parking lot of an apartment building owned by defendant and in which she rented an apartment. Plaintiff alleged that defendant failed to provide reasonable security for the tenants, including failing to replace the parking lot security guard when that employee died and failing to monitor a subsequently installed electronic surveillance system. The court of appeals affirmed the trial court’s denial of defendant’s motion for summary disposition. The court assumed without deciding that the reasoning of Williams would apply in a landlord-tenant situation. However, even though defendant would not be obligated to provide parking lot security guards under Williams, the court stated that if defendant voluntarily assumed the duty to provide security, a cause of action would exist if they were negligent in discharging this voluntarily assumed duty. Although the question of duty is ordinarily one of law for the court, if a determination of duty depends on factual findings, those findings must be made by the jury. Id.

Note that in Scott v Harper Recreation, 444 Mich 441, 506 NW2d 857 (1993), the Michigan Supreme Court concluded that a nightclub was not liable for injuries suffered by a patron who was attacked in the parking lot. In so holding, the court rejected plaintiff’s argument that the safety measures undertaken by the club were not as effective as they should have been. However, the court specifically reserved the question of whether this holding applies in the area of landlord-tenant law, citing Holland. 444 Mich at 452 n15.

In Stanley v Town Square Coop, 203 Mich App 143, 512 NW2d 51 (1993), the court found that a landlord has a duty to take reasonable precautions to protect tenants and their guests from foreseeable criminal activity in the common areas inside the premises. However, this duty does not encompass an obligation to make open parking lots safer than the adjacent public streets.

A landlord has no duty to protect a tenant’s visitor from an assault by the tenant if the assault occurs in an area over which the tenant has exclusive possession and control, the injured visitor has no special relationship with the landlord, and the landlord’s obligation to provide the premises reasonably safe and fit for habitation does not require it to protect a visitor to a tenant’s apartment from the tenant. Shoulders v Record Realty Co, 185 Mich App 606, 462 NW2d 803 (1990). This principle is true even if the tenant has a reputation for violence. Id.

The duty that a cooperative association owes to those who come on the premises is the same as the duty a landlord owes those who come on their premises. Id.

A landlord had no duty to protect third parties from attacks by his tenants’ dog that took place off the leased premises where the dog was acquired after the premises were leased. Feister v Bosack, 198 Mich App 19, 497 NW2d 522 (1993); see also Braun v York Props, 230 Mich App 138, 583 NW2d 503 (1998) (landlord owed no duty to third party for dog bite by tenant’s dog for landlord’s failure to enforce its rules and regulations restricting size of pets in its mobile home park).

Finally, landlords have a nondelegable duty to reasonably repair leased premises and remain responsible for the negligence of independent contractors in making repairs. Whether the repairs are undertaken pursuant to a lease or contract or made gratuitously has no legal significance. Misiulis v Milbrand Maint Corp, 52 Mich App 494, 218 NW2d 68 (1974).

Generally, innkeepers owe their guests the duty that an invitor owes an invitee. Upthegrove v Myers, 99 Mich App 776, 299 NW2d 29 (1980).

In Ann Arbor Tenants Union v Ann Arbor YMCA, 229 Mich App 431, 581 NW2d 794 (1998), the court held that the relationship between the YMCA and its residents is one of hotel and guest, not one of landlord and tenant.

A tenant of an apartment complex was stated to be an invitee in Prebenda v Tartaglia, 245 Mich App 168, 627 NW2d 610 (2001).

B. Attractive Nuisances

§9.21   The doctrine of attractive nuisance has long been recognized in Michigan. Elbert v Saginaw, 363 Mich 463, 109 NW2d 879 (1961); Lyshak v Detroit, 351 Mich 230, 88 NW2d 596 (1958); Petrak v Cooke Contracting Co, 329 Mich 564, 46 NW2d 574 (1951). Basically, the doctrine holds a landowner liable for harm caused by artificial conditions that are highly dangerous to trespassing children.

In Rosario v Lansing, 403 Mich 124, 268 NW2d 230 (1978), 19-month-old DeAndrea Rosario drowned in an open sewer drain in defendant church’s parking lot. Plaintiff filed a multicount complaint, including a count for attractive nuisance. In holding that the attractive nuisance doctrine applied, the Rosario court stated the doctrine took into account the peculiar nature of children:

“Children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution towards them must calculate upon this, and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken.”

Id. at 140–141 (quoting Powers v Harlow, 53 Mich 507, 515, 19 NW 257 (1884)).

In applying the doctrine of attractive nuisance, the age of the child is a circumstance for the jury to consider in determining whether the condition is a nuisance. Rosario, 403 Mich at 141.

Once a plaintiff has alleged and established an attractive nuisance, the following elements must be proved to sustain the cause of action:

1. The possessor knows or has reason to know that children are likely to trespass on the place where the condition exists.
2. The possessor knows or has reason to know that the condition involves an unreasonable risk of death or serious bodily harm to such children.
3. The children, because of their youth, do not discover the condition or realize the risk involved.
4. The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk to children that is involved.
5. The possessor fails to exercise reasonable care to eliminate the dangers or to otherwise protect the children.

Gilbert v Sabin, 76 Mich App 137, 141–142, 256 NW2d 54 (1977) (citing Restatement (Second) of Torts §339); accord Murday v Bales Trucking, Inc, 165 Mich App 747, 752, 419 NW2d 451 (1988); see also Rand v Knapp Shoe Stores, 178 Mich App 735, 444 NW2d 156 (1989).

All five conditions must be met for a possessor of land to be held liable to a trespassing child under an attractive nuisance theory. In addition, liability under this rule is imposed only if the injury is caused by an artificial condition of the land. Rand. Actual notice of the presence of trespassing children is not required. It is sufficient if the defendants have reason to know that children are likely to trespass. Byrne v Schneider’s Iron & Metal, Inc, 190 Mich App 176, 475 NW2d 854 (1991).

A landowner is not liable under the attractive nuisance doctrine for injuries to a child trespasser that result from the criminal acts of a third person whom the landowner could not and did not control. Gouch v Grand TWR Co, 187 Mich App 413, 468 NW2d 68 (1991).

A defendant who is aware, or should have been aware, of a hazardous condition on their property and children’s use of that area cannot escape liability for a child’s injury simply by attempting to shift the blame to the child for the child’s use of the property. Pippin v Atallah, 245 Mich App 136, 626 NW2d 911 (2001).

C. Firefighter’s Rule

§9.22   The Michigan Legislature abolished the common-law firefighter’s rule, MCL 600.2965, and enacted a statutory version, MCL 600.2967. With certain delineated exceptions and limitations, the statutory firefighter’s rule prevents “a firefighter or police officer who seeks to recover damages for injury or death arising from the normal, inherent, and foreseeable risks of his or her profession while acting in his or her official capacity” from recovering from a landowner for their injuries.

Certain governmental entities are immune from liability for a firefighter’s or police officer’s injury “that arises from the normal, inherent, and foreseeable risks” of the profession. MCL 600.2966.

To recover from a defendant who is not immune under MCL 600.2966 for injuries arising from normal, inherent, and foreseeable risks, a plaintiff must show one of the following:

1. injury or death caused by conduct that is grossly negligent, wanton, willful, intentional, or criminal;
2. a cause of action based on product liability under certain circumstances; or
3. negligence in very limited circumstances specified by the statute.

MCL 600.2967.

Note that the Michigan Supreme Court has held that a defendant’s degree of recklessness is irrelevant to whether the immunity provision applies. Lego v Liss, 498 Mich 559, 874 NW2d 684 (2016) (holding that defendant was entitled to immunity because being shot by another police officer while pursuing active shooter is normal, inherent, and foreseeable risk of profession).

The firefighter’s rule does not extend to volunteer firefighters, Roberts v Vaughn, 459 Mich 282, 587 NW2d 249 (1998), or to paramedics, McKim v Forward Lodging, Inc, 266 Mich App 373, 702 NW2d 181, rev’d on other grounds, 474 Mich 947, 706 NW2d 202 (2005).

When a safety officer seeks relief for ordinary negligence, the statute imposes an independent negligence requirement: either the negligent person was not someone whose act or omission resulted in the safety officer’s presence at the scene of the injury or the person was someone whose act or omission resulted in the firefighter’s or police officer’s presence at the place where the injury occurred and the action was based on an act by that person that occurred after the firefighter or police officer arrived at the place where the injury occurred. In Tull v WTF, Inc, 268 Mich App 24, 706 NW2d 439 (2005), the court of appeals held that the independent negligence requirement applies only when a safety officer is seeking relief for ordinary negligence. A safety officer who brings an action under the Dramshop Act is not required to satisfy the independent negligence requirement because a dram-shop action is a statutory action and not a common-law negligence action.

D. Recreational Use Act

1. In General

§9.23   The RUA, MCL 324.73301 et seq., part of NREPA, provides that a person on a tract of vacant but private land for one of the purposes enumerated in the RUA who has paid no valuable consideration and is not a social guest has no cause of action against the owner, lessee, or tenant of the property for injuries sustained unless the injuries were caused by either the gross negligence or the willful and wanton misconduct of the owner, lessee, or tenant. The RUA also provides immunity for individuals with whom the owner, tenant, or lessee of land contracts to construct, maintain, or operate a trail or other land improvement used as described in MCL 324.73301(1) and (2) absent that individual’s gross negligence or willful and wanton misconduct. See also Burnett v Adrian, 414 Mich 448, 326 NW2d 810 (1982).

The purpose of the RUA is “to open up and make available for public recreational use vast areas of vacant but private lands.” Thone v Nicholson, 84 Mich App 538, 543, 269 NW2d 665 (1978); see also Estate of Thomas v Consumers Power Co, 58 Mich App 486, 228 NW2d 786, aff’d in part, rev’d in part, 394 Mich 459, 231 NW2d 653 (1975).

The RUA was not intended to waive the state’s immunity from liability and does not create an exception to governmental immunity. Ballard v Ypsilanti Twp, 457 Mich 564, 577 NW2d 890 (1998).

Historically, common law places a successively greater burden on landowners to watch over the safety of a visitor, depending on whether the visitor is a trespasser, a licensee, or an invitee. Thus, the RUA should not apply to a visitor who is on recreational land as an invitee and who had paid valuable consideration to be there. Estate of Thomas. The RUA is intended as a statutory codification of the common-law liability of landowners to people with only the status of a licensee or trespasser who gratuitously enter the lands of another. Thone; Estate of Thomas.

In Neal v Wilkes, 470 Mich 661, 685 NW2d 648 (2004), the court of appeals held that the RUA did not apply because plaintiff was injured on the mowed portion of defendant’s backyard and not on a “large tract of undeveloped land.” Id. at 663. The supreme court found “absolutely no indication in the language of the RUA that the Legislature intended its application to be limited to vacant or undeveloped lands.” Id. at 666. The court held further:

The RUA makes no distinction between large tracts of land and small tracts of land, undeveloped land and developed land, vacant land and occupied land, land suitable for outdoor recreational uses and land not suitable for outdoor recreational uses, urban or suburban land and rural land, or subdivided land and unsubdivided land. To introduce such distinctions into the act is to engage in what is essentially legislative decision-making. … 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.

Neal, 470 Mich at 667–668.

2. Types of Uses Covered

§9.24   What's New in this Section   MCL 324.73301(1) outlines the uses that the RUA covers: “[F]ishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use.”

Several cases have discussed the meaning of “other outdoor recreational use.” Swimming and diving are covered. Anderson v Brown Bros, Inc, 65 Mich App 409, 237 NW2d 528 (1975).

In Rott v Rott, 508 Mich 274, 972 NW2d 789 (2021), a case involving a zip-lining accident, the court affirmed Neal v Wilkes, 470 Mich 661, 685 NW2d 648 (2004), and reiterated that the RUA applies when an individual is injured while on another’s land without paying consideration for access and when their purpose at the time of the accident is participation in a covered “outdoor recreational use or trail use.” The court found that the RUA does not apply to zip lining because Michigan caselaw, the statutory language, and the statute’s evolution all make it clear that it is not an activity covered by the catchall phrase “any other outdoor recreational use” in MCL 324.73301(1).

In Estate of Robinson v Robinson, 339 Mich App 682, 984 NW2d 844 (2021), which involved a fatal ATV accident on defendant’s property, the court of appeals found that the RUA governed, as it applied more specifically than the Civil Liability Act, MCL 257.401 et seq., of the Michigan Vehicle Code (MVC). The RUA applies when, as in this case, a nonpaying visitor is injured while on someone else’s land for the purpose of “motorcycling, snowmobiling, or any other outdoor recreational use or trail use.” MCL 324.73301(1). The court of appeals noted that, in contrast, the MVC applies to all motor vehicles in all places and circumstances. “[T]raversing” private property to reach a government-owned pier is also covered under “other recreational use.” James v Leco Corp, 170 Mich App 184, 190, 427 NW2d 920 (1988). On appeal, the Michigan Supreme Court took up the issue of whether the owner’s liability provision of the MVC, MCL 257.401(1), irreconcilably conflicts with the RUA, MCL 324.73301(1), when a defendant is both the owner of the property on which a listed recreational activity occurred and the owner of the vehicle used for that activity. The court held that the legislature intended the RUA to limit owner liability under MCL 257.401(1) and that an owner liability claim under MCL 257.401(1) for injuries to a person engaged in recreational activity on the landowner’s property must be based on the landowner’s gross negligence or willful and wanton misconduct. Milne v Robinson, 513 Mich 1, 6 NW3d 40 (2024).

The RUA does not apply to actions against contractors constructing, maintaining, or operating a trail or other land improvement, MCL 324.73301(3), “gleaning agricultural or farm products,” MCL 324.73301(4), or picking and purchasing agricultural products at a farm or u-pick operation, MCL 324.73301(6).

The RUA also does not apply to injuries on a right-of-way of a rail line occurring after the dedication of the right-of-way under an applicable statute and before the right-of-way is reactivated for rail service. MCL 324.73302.

3. Valuable Consideration Exception

§9.25   If the plaintiff has paid “valuable consideration” to engage in one of the activities the RUA enumerates, the statute does not apply and the property owner, tenant, or lessee owes the same duty to the plaintiff that is owed to any licensee under general premises liability rules. See MCL 324.73301(1). The valuable consideration must be a specific fee for a particular recreation. Syrowik v Detroit, 119 Mich App 343, 326 NW2d 507 (1982). Park permit fees apply only to motor vehicles and are fees for the use of roads and parking lots, not valuable consideration for recreational purposes. Schiller v Muskegon State Park, 153 Mich App 472, 395 NW2d 75 (1986).

4. Gross Negligence

§9.26   An owner, a tenant, or a lessee of land used for recreational purposes under the RUA is not protected from liability for injury if their gross negligence led to the injury. See §9.23.

In Jennings v Southwood, 446 Mich 125, 521 NW2d 230 (1994), appeal after remand, 224 Mich App 15, 568 NW2d 125 (1997), vacated in part on other grounds, 457 Mich 884, 586 NW2d 925 (1998), the supreme court, in a non-RUA case, adopted as the definition of gross negligence “‘conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.’” 446 Mich at 136. The court repudiated the long-standing definition of gross negligence stated in Gibbard v Cursan, 225 Mich 311, 196 NW 398 (1923). Gibbard defined gross negligence as subsequent negligence, that is, negligence occurring after an injured party’s negligence occurs.

In a case under the RUA that was decided before Jennings changed the definition of gross negligence, the court used the now-discarded Gibbard definition. Burnett v Adrian, 414 Mich 448, 461, 326 NW2d 810 (1982).

5. Willful and Wanton Misconduct

§9.27   An owner, a tenant, or a lessee of land used for recreational purposes under the RUA is not protected from liability for injury if their willful and wanton misconduct led to the injury. See §9.23.

The definition of willful and wanton misconduct is not as clear as that for gross negligence. In Jennings v Southwood, 446 Mich 125, 521 NW2d 230 (1994), appeal after remand, 224 Mich App 15, 568 NW2d 125 (1997), vacated in part on other grounds, 457 Mich 884, 586 NW2d 925 (1998), the court approved the three-prong test for willful and wanton misconduct set forth in Gibbard v Cursan, 225 Mich 311, 196 NW 398 (1923), as further clarified by Burnett v Adrian, 414 Mich 448, 326 NW2d 810 (1982).

The Gibbard test includes the following elements:

1. the knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another;
2. an ability to avoid the resulting harm by ordinary care and diligence using the means at hand; and
3. a failure to use such care and diligence to avert the threatened danger when, to the ordinary mind, it must be apparent that the result is likely to prove disastrous to another.

The Burnett court added the element of an intention to harm or an indifference that is the equivalent of a willingness to do harm. 414 Mich at 456. Other RUA cases applying the Burnett standard include Wilson v Thomas L McNamara, Inc, 173 Mich App 372, 433 NW2d 851 (1988), and James v Leco Corp, 170 Mich App 184, 427 NW2d 920 (1988).

Willful and wanton misconduct goes beyond ordinary negligence. In Ellsworth v Highland Lakes Dev Assocs, 198 Mich App 55, 498 NW2d 5 (1993), the court decided that even if defendants knew or should have known that both motorcyclists and children were on the property, defendants’ alleged negligence in failing to protect one from the other did not rise to the level of willful and wanton misconduct.

E. Participant Sports

§9.28   What's New in this Section   For the most part, Michigan courts have ruled that plaintiffs voluntarily exposed themselves to the danger by participating in a sport. For example, in Dillon v Keatington Racquetball Club, 151 Mich App 138, 390 NW2d 212 (1986), the court held that there was no duty to supervise a wallyball game to make sure that the rules were complied with. Plaintiff claimed that the court was overcrowded, which contributed to his injury. The court held that imposing such a duty would be “unduly onerous and patronizing.” Id. at 141–142.

The courts have also held that defendants are not liable for naturally occurring disasters while a plaintiff is engaged in a participant sport. In Dykema v Gus Macker Enters, Inc, 196 Mich App 6, 492 NW2d 472 (1992), plaintiff was struck by lightning while at an outdoor basketball tournament. The court held that defendant had no duty to warn plaintiff of the approaching thunderstorm. Although not couching the case in terms of the open and obvious hazard doctrine, the court indicated that plaintiff should have been able to observe and react to the approaching thunder, as well as defendant could.

Suits arising from particular sporting activities are also precluded by statute:

• Ski Area Safety Act of 1962 (SASA), MCL 408.321
• Roller Skating Safety Act of 1988, MCL 445.1721
• Equine Activity Liability Act (EALA), MCL 691.1661 et seq.
• Bowling Center Act, MCL 691.1581 et seq.

In Lamp v Reynolds, 249 Mich App 591, 645 NW2d 311 (2002), plaintiff motocross participant prevailed in a premises liability action against defendant racetrack owners. Plaintiff was injured when his bike hit a hidden tree stump near the outside edge of the racetrack as he traveled at a high rate of speed. Defendants knew about the tree stump for years but failed to remove it or to warn race participants about it. However, they were aware that it was common for the fast-moving participants to leave the track during a race. Because the court found defendants’ conduct to be willful and wanton, liability releases that plaintiff had executed did not insulate defendants from liability.

For a case involving the Roller Skating Safety Act of 1988, see Dale v Beta-C, Inc, 227 Mich App 57, 574 NW2d 697 (1997) (skater assumes risk of obvious and necessary dangers inherent in sport of roller skating but does not assume risk of another operator violating prescribed duties under act).

For cases finding the SASA as a bar to liability, see Anderson v Pine Knob Ski Resort, Inc, 469 Mich 20, 664 NW2d 756 (2003) (plaintiff’s negligence claim barred by SASA because potential of collision with timing shack is obvious and necessary hazard inherent in sport of ski racing); Round v Trinidad Resort & Club, LLC  (On Remand), No 357849, ___ Mich App ___, ___ NW3d ___ (Dec 14, 2023) (to the extent plaintiff pled premises liability claim arising from injuries plaintiff’s decedent sustained in collision with snowmaking equipment located off ski run during nighttime skiing event, such claim is abrogated by SASA); McGoldrick v Holiday Amusements, Inc, 242 Mich App 286, 618 NW2d 98 (2000) (ski area operator immune from liability for skier’s collision with rope tow component; no greater standard of care for minors). In Rusnak v Walker, 273 Mich App 299, 729 NW2d 542 (2006), the court held that while a skier assumes the risk of colliding with another skier, when it can be shown that the collision was the result of a violation of the SASA the violator is to be held liable for damages. And in Swanson v Bittersweet Ski Resort, Inc, No 366258, ___ Mich App ___, ___ NW3d ___ (Aug 29, 2024), the court held that the SASA did not bar plaintiffs’ claims because the injured plaintiff was not “participating” in the “sport of skiing” under MCL 408.342(2) while he was working as a volunteer ski patroller. The court found that the release plaintiff signed likewise did not bar his claims, as its plain language was designed to broadly absolve defendants of liability for injuries sustained while skiing, not injuries sustained while getting on a ski lift for a shift as a ski patroller.

In Beattie v Mickalich, 486 Mich 1060, 784 NW2d 38 (2010), the supreme court held that although the EALA abolished strict liability for horse owners, it did not abolish negligence actions against horse owners. Because plaintiff sustained injuries while holding the lead rope and halter as defendant asked her to do while he prepared to saddle his “green broke” horse and the horse reared up, pulling plaintiff up in the air and then throwing her on the ground, the trial court erred in granting defendant’s motion for summary disposition. However, a plaintiff is not required to plead a claim in avoidance of the limitations on liability provided in the EALA. Id.

Note that the Trampoline Court Safety Act, MCL 691.1731 et seq., specifically prescribes the duties and liabilities of those operating and visiting trampoline courts. The act requires operators to provide specific instructions and convey to their customers the “responsibility requirements” outlined in the act. It includes an assumption-of-risk provision and provides that “[a] trampoliner, spectator, or operator who violates this act is liable in a civil action for damages for the portion of the loss or damage that results from the violation.” For an older case in which the court rejected plaintiff’s claim that defendant should have provided a trampoline instructor, see Nabkey v Jack Loeks Enters, Inc, 376 Mich 397, 137 NW2d 132 (1965).

Preinjury waivers of liability signed by parents on behalf of their minor children before the children participate in recreational activities are not presumptively enforceable. Woodman v Kera, LLC, 280 Mich App 125, 760 NW2d 641 (2008), aff’d, 486 Mich 228, 785 NW2d 1 (2010) (release signed before birthday party held at commercial inflatable playscape facility). The supreme court, in split opinions, affirmed the court of appeals ruling in Woodman, and a majority of the justices agreed that Michigan common law precludes enforcement of a preinjury liability waiver signed by a parent on behalf of a child because, absent special circumstances, a parent does not have the authority to bind their child by contract.

MCL 700.5109 authorizes a parent to provide a limited release of a “person” from liability for injuries sustained by a child in specific “recreational activity” before the child participates, but only if it is “sponsored or organized by a nongovernmental, nonprofit organization.” MCL 700.5109(2). Recreational activity is defined to mean “active participation in an athletic or recreational sport or in a camping activity.” MCL 700.5109(7). People who may be released under this statute are “[e]ither or both” the sponsor or organizer and paid people or volunteers who coach or assist in conducting the activity. MCL 700.5109(3). The release must be in writing and is specifically limited to “liability for injury or death that results solely from the inherent risks of the recreational activity.” MCL 700.5109(4), (5) (emphasis added). The release under this section, however, “does not limit the liability” of the named people for their own negligence or the negligence of their employees or agents that causes or contributes to the child’s injury or death. MCL 700.5109(4).

See also the discussion in §1.16.

F. Volunteer Doctrine

§9.29   Before 2001, Michigan courts recognized the volunteer doctrine, which provided that the only duty owed to a volunteer is to refrain from injuring them by a willful or wanton act. However, in James v Alberts, 464 Mich 12, 626 NW2d 158 (2001), the supreme court abolished this doctrine and found that situations involving injuries to volunteers should be governed by traditional agency and tort principles. James involved a premises liability claim against a landowner, and the court found that the landowner’s duties turned on the visitor’s status as an invitee, a licensee, or a trespasser at the time of the injuries. That the visitor was on the property as a volunteer was inconsequential to the duty analysis.

G. Plaintiff’s Intoxication

§9.30   In Mann v Shusteric Enters, Inc, 470 Mich 320, 623 NW2d 573 (2004), plaintiff suffered injury after slipping and falling in the parking lot of a bar. Plaintiff admitted to having nine drinks at defendant bar and registered a .25 percent blood alcohol level. Plaintiff claimed that because he was visibly intoxicated inside the bar, and the bar continued to serve him to the point of gross intoxication, the bar had an increased duty to protect him.

The supreme court flatly rejected plaintiff’s argument. The court held that although defendant served plaintiff alcohol and was aware that plaintiff was intoxicated, defendant did not owe plaintiff any heightened duty of care. Concomitantly, there was no diminished duty on the part of the intoxicated plaintiff to take reasonable care for their own safety. Thus, evidence that plaintiff’s intoxication was apparent to defendant’s employees would appear to be irrelevant and inadmissible in a premises liability case.

H. Dog Bites

§9.31   A dog qualifies as a “condition on the land” for purposes of premises liability. Tripp v Baker, No 360960, ___ Mich App ___, ___ NW3d ___ (Apr 13, 2023); Klimek v Drzewiecki, 135 Mich App 115, 352 NW2d 361 (1984). “A prima facie case of premises liability arising from a dog bite requires a showing that: (a) the dog is the condition on the land; and (b) that the defendant had knowledge of the dog’s dangerous tendencies.” Tripp, slip op at *6. In Tripp, because the court held that a dangerous dog could constitute a hazardous condition on the land, it also recognized that the open and obvious defense would apply. In the trial court, however, defendant did not present any evidence that the dog was an open and obvious hazard. Nevertheless, the court of appeals held that summary disposition was proper because plaintiff was trespassing when he was injured.