Introduction
Instructions
M Civ JI 19.01 Invitee, Licensee, Trespasser—Definitions (Relationship Disputed)
M Civ JI 19.02 Possessor of Land—Definition
M Civ JI 19.03 Duty of Possessor of Land, Premises, or Place of Business to Invitee; Known Risk or Open and Obvious Condition
M Civ JI 19.04 Duty of Plaintiff to Use Ordinary Care in Self-Service Store or Store Displaying Goods [Instruction Deleted]
M Civ JI 19.05 Duty of Possessor of Land, Premises, or Place of Business to a Business Invitee Regarding the Natural Accumulation of Ice and Snow
M Civ JI 19.06 Duty of Possessor of Land, Premises, or Place of Business to Licensee
M Civ JI 19.07 Duty of Possessor of Land, Premises, or Place of Business to Trespasser Whose Presence is Not Known to Possessor
M Civ JI 19.08 Duty of Possessor of Land, Premises, or Place of Business to Trespasser Whose Presence is Known or Should Have Been Known to Possessor
M Civ JI 19.09 Duty of Possessor of Land, Premises, or Place of Business to Persons Traveling Along Adjacent Street or Way
M Civ JI 19.10 Nondelegable Duty of Possessor or Occupier of Land, Premises, or Place of Business
M Civ JI 19.11 Landlord's Nondelegable Duty for Negligent Repairs Made by An Independent Contractor
In a premises liability case, as in other negligence cases, plaintiff must show (1) a duty owed by the defendant, (2) a breach of that duty, (3) that as a proximate result of that breach plaintiff suffered injury, and (4) that damages resulted. The latter three elements are covered by negligence instructions already in existence. See, e.g., M Civ JI 16.08. The following instructions cover elements of duty and related matters.
In 1987, Michigan adopted the common-law doctrine called the “fireman’s rule” precluding police officers or firefighters from negligence actions based on incidents that required their presence or where the risk of harm was inherent in their work. Kreski v Modern Wholesale Electric Supply Co, 429 Mich 347; 415 NW2d 178 (1987). However, 1998 PA 389 abolished the common-law fireman’s rule (MCL 600.2965) in favor of a statutory scheme regulating the circumstances in which a police officer or firefighter may sue in tort for injury or death arising from normal, inherent, and foreseeable risks of his or her profession when acting in an official capacity. MCL 600.2967, .2966.
History
This Introduction was added January 1982.
Amended January 1988, April 1, 2002. TOP
To determine the duty owed to plaintiff, you must first determine whether plaintiff was an [invitee / or / licensee / or / trespasser].
*(An invitee is a person who is invited to enter or remain on [land / premises / a place of business] for a commercial benefit to the possessor of the [land / premises / place of business] or for a purpose directly or indirectly connected with business dealings with the possessor. An invitation may be either express or implied.)
*(A licensee is a person who is invited to enter or remain on [land / premises / a place of business] for any purpose other than a business or commercial one with the express or implied permission of the owner or person in control of the [land / premises / place of business]. A social guest is a licensee, not an invitee.)
*(A trespasser is a person who goes upon the [land / premises / place of business] of another without an express or implied invitation, for his or her own purposes, and not in the performance of any duty to the owner. It is not necessary that in making such an entry the trespasser have an unlawful intent.)
Note on Use
*These definitions should be given only if there is a factual issue as to the legal status of the plaintiff as invitee, licensee, or trespasser. If the factual issue pertains to two, but not all three, of the categories, only the applicable two paragraphs of this instruction should be given. The jury should then be instructed that once it decides on the legal status of the plaintiff, according to this instruction, it should apply the corresponding instruction on duty.
This instruction and the other instructions in this chapter are not intended for use in cases in which liability is limited by statute. See MCL 324.73301, which provides that an owner, tenant or lessee of land is liable only for gross negligence or willful and wanton misconduct that causes injuries to a person who is on the land for outdoor recreational purposes without having paid a valuable consideration. The predecessor statute, MCL 300.201, was held to apply to large tracts of undeveloped land suitable for outdoor recreational uses, but not to urban, suburban, and subdivided lands. Wymer v Holmes, 429 Mich 66; 412 NW2d 213 (1987).
Comment
See Wymer; Preston v Sleziak, 383 Mich 442; 175 NW2d 759 (1970); Perl v Cohodas, Peterson, Paoli, Nast Co, 295 Mich 325; 294 NW 697 (1940); Cox v Hayes, 34 Mich App 527; 192 NW2d 68 (1971). Social guests are licensees. Preston.
Persons who are on church premises for religious activities and not a commercial purpose are licensees. Stitt v Holland Abundant Life Fellowship, 462 Mich 591; 614 NW2d 88 (2000). Stitt overruled Preston insofar as Preston might be read as adopting the public invitee portion of the definition of “invitee” in Restatement (Second) of Torts §332, at 176.
History
M Civ JI 19.01 was added January 1982.
Amended September 1982, October 2001. TOP
A “possessor” is defined as—
- a person who is in occupation of the land with intent to control it; or
- a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it; or
- a person who is entitled to immediate occupation of the land, if no other person is in possession as I have just explained.
Note on Use
This instruction should be given if there is a dispute as to who had possession of the land. Orel v Uni-Rak Sales Co, 454 Mich 564; 563 NW2d 241 (1997). If it is not an issue, this instruction should not be given. Orel.
Comment
See Merritt v Nickelson, 407 Mich 544; 287 NW2d 178 (1980).
A mortgagee not in actual possession and control of the premises during the mortgage foreclosure redemption period is not considered a possessor. Kubczak v Chemical Bank & Trust Co, 456 Mich 653; 575 NW2d 745 (1998).
History
M Civ JI 19.02 was added January 1982. TOP
A possessor has a duty to use ordinary care to protect an invitee from risks of harm from a condition on the possessor's [land / premises / place of business] if:
the risk of harm is unreasonable, and
the possessor knows or in the exercise of ordinary care should know
of the condition, and should realize that it involves an unreasonable risk of harm to an invitee.
*(In determining whether the possessor should know of the condition, you should consider the character of the condition and whether the condition existed for a sufficient length of time that a possessor exercising ordinary care would discover the condition.)
**(Here the defendant claims that the condition was [open and obvious/known to the invitee]. If the condition was [open and obvious/known to the invitee], then defendant did not have a duty to protect the invitee from the risks presented, unless there were special features of the condition that made it unreasonably dangerous. This is for you to decide. The following will help you in making these decisions.)
(A condition is open and obvious if the invitee knew of it or if a reasonably careful [person / (minor plaintiff ' s age)] under the circumstances that you find existed in this case would have discovered it upon casual inspection.)
(If you decide that the condition was [open and obvious/known to the invitee], then you are to decide whether there were special features of the condition that made it unreasonably dangerous. These would be features that made the condition effectively unavoidable or features that gave rise to an unreasonably high risk of severe harm.)
(If you decide there existed at least one of those types of special features, it is for you to decide whether defendant took reasonable precautions to avoid the risk that was presented.)
Note on Use
*This paragraph should be used only if there is an issue of constructive notice or inspection.
** The remaining paragraphs should be used if there is a question about whether an open and obvious condition existed. The "open and obvious danger" doctrine encompasses conditions on a landowner's property that are either objectively open and obvious or that the plaintiff was subjectively aware of before suffering an injury. Riddle v McLouth Steel Products Corp , 440 Mich 85, 92 (1992). The material in parentheses will allow the trial court to instruct appropriately depending on whether it is claimed that the dangerous condition was open and obvious or, alternatively, on the ground that the invitee knew of the condition prior to being injured. In some cases, both the open and obvious character of the condition and the invitee's subjective awareness of that condition may be at issue. In that circumstance, the jury should be instructed on both open and obvious and on plaintiff's prior knowledge of the condition. If the trial court decides as a matter of law that the condition was not open and obvious or if it determines as a matter of law that there are "special aspects" concerning that condition, this portion of the instruction should be omitted.
The third paragraph in parentheses should be used in any case in which there remains an issue of fact on whether the condition was open and obvious or where there remains an issue of fact on the question of whether the plaintiff knew of the condition. However, if the trial judge has granted summary disposition to the defendant on the issue of whether the condition was open and obvious or known to the plaintiff, the third paragraph in parentheses will need to be modified to reflect that ruling.
The third and fourth paragraphs in parentheses should be used if there remains an issue of fact on the question of whether there are "special aspects" of the open and obvious or known condition that made the risk of harm unreasonable. If the trial judge has granted summary disposition to the defendant on the "special aspect" issue, the third and fourth paragraphs in parentheses should not be used.
Comment
See Riddle v McLouth Steel Products Corp , 440 Mich 85 (1992); Kroll v Katz , 374 Mich 364 (1965). See also Singerman v Municipal Service Bureau , 455 Mich 135 (1997); Millikin v Walton Manor Mobile Home Park, Inc , 234 Mich App 490 (1999). Mann v Shusteric Enterprises, Inc, 470 Mich 320 (2004); Lugo v Ameritech Corp , 464 Mich 512 (2001); Bertrand v Alan Ford, Inc, 449 Mich 606 (1995).
On the subject of constructive notice and inspection, see Clark v Kmart Corp , 465 Mich 416, 419 (2001); James v Alberts , 464 Mich 12, 19-20 (2001).
On the subject of liability to invitees injured by the criminal acts of third parties, see MacDonald v PKT, Inc , 464 Mich 322 (2001).
On special aspects that make a risk of harm from an open and obvious or known condition unreasonable, see Lugo . For cases involving a minor, see Bragan v Symanzik , 263 Mich App 324 (2004). Whether the condition is open and obvious depends on whether the condition, as presented, was noticeable to the ordinary user. Novotney v Burger King Corp (On Remand) , 198 Mich App 470 (1993); Hughes v PMG Building, Inc., 227 Mich App 1 (1997); Joyce v Rubin, 249 Mich App 231 (2002).
History
M Civ JI 19.03 was added January 1982.
Amended January 1994.
Amended June 2003.
Amended March 2005.
Amended December 2005.
History
M Civ JI 19.04 was added January 1982.
This instruction was deleted by the Committee April 1, 2004. The instruction was deleted because the Committee believes it did not accurately state the law. TOP
History
This instruction was deleted by the Committee September 11, 2004 . The instruction was deleted because it was found to be inaccurate by the Michigan Supreme Court in Mann v Shusteric Enterprises, Inc, 470 Mich 320 (2004). TOP
M Civ JI 19.06
Duty of Possessor of Land, Premises, or Place of Business to Licensee
A possessor of [ land / premises / a place of business ] is liable for physical harm caused to a licensee by a condition on the [ land / premises / place of business ] if, but only if —
(a) the possessor knew or should have known of the condition and should have realized that it involved an unreasonable risk of harm to the licensee, and should have expected that [ he / she ] would not discover or realize the danger; and
(b) the possessor failed to warn the licensee of the danger; and
(c) the licensee did not know or have reason to know of the danger.
Note on Use
If there is no dispute as to the legal status of the plaintiff as a licensee, the plaintiff's name should be substituted for the term “licensee” in this instruction.If there is a factual question as to the legal status of the plaintiff as invitee, licensee, or trespasser, M Civ JI 19.01 should be given.
Comment
See Preston v Sleziak, 383 Mich 442; 175 NW2d 759 (1970). Stitt v Holland Abundant Life Fellowship, 462 Mich 591; 614 NW2d 88 (2000), overruled Preston only insofar as Preston might be read as adopting the public invitee portion of the definition of “invitee” in the Restatement Torts, 2d, § 332, p 176.
While a possessor owes no duty to pedestrians regarding the natural accumulations of ice and snow on public sidewalks abutting the possessor's land, this rule does not change the duty owed by a possessor to a licensee on the possessor's private premises. Altairi v Alhaj, 235 Mich App 626; 599 NW2d 537 (1999), lv den, 461 Mich 1021; 611 NW2d 797 (2000).
In Burnett v Bruner, 247 Mich App 365 (2001), the Court of Appeals held that it was reversible error for the trial court to give an instruction to the jury modeled after an earlier version of M Civ JI 19.06. The Court held that a landowner only owes his or her licensees a duty to warn and does not owe a duty to inspect or repair the premises. The amendment deletes the offending provision from subpart (b). Therefore, it is not necessary to include the supplemental instruction sought by the defendant in Burnett.
History
M Civ JI 19.06 was added January 1982.
Amended June 2006. TOP
If [name of defendant] did not know and in the exercise of ordinary care could not have known of the presence of [name of plaintiff] on [his / her] [land / premises / place of business], [he / she] owes [name of plaintiff] no duty to either make the premises safe or warn [name of plaintiff] of conditions existing on the premises.
Note on Use
If there is a factual question as to the legal status of the plaintiff as invitee, licensee, or trespasser, M Civ JI 19.01 should be given.
If there is a factual question as to whether the trespasser’s presence is known to the possessor of the land trespassed upon, this instruction should be given in conjunction with M Civ JI 19.08 Duty of Possessor of Land, Premises, or Place of Business to Trespasser Whose Presence Is Known or Should Have Been Known to Possessor.
Comment
See Blakeley v White Star Line, 154 Mich 635; 118 NW 482 (1908).
History
M Civ JI 19.07 was added January 1982. TOP
After a possessor of [land / premises / a place of business] is aware of the presence of a trespasser, or if in the exercise of ordinary care [he / she] should have known of the trespasser’s presence, [he / she] is bound to use ordinary care to prevent injury to the trespasser arising from active negligence.
Note on Use
If there is no dispute as to the legal status of plaintiff as a trespasser, the plaintiff’s name should be substituted for the term “trespasser” in this instruction.
If there is a factual question as to the legal status of the plaintiff as invitee, licensee, or trespasser, M Civ JI 19.01 should be given.
Comment
See Schulke v Krawczak, 62 Mich App 675; 233 NW2d 694 (1975).
History
M Civ JI 19.08 was added January 1982. TOP
A possessor of [land / premises / a place of business] has a duty to exercise ordinary care in maintaining [his / her] premises in a reasonably safe condition in order to prevent injury to persons traveling along an adjacent [street / or / sidewalk / or other / public way].
Comment
See Parsons v E I Du Pont De Nemours Powder Co, 198 Mich 409; 164 NW 413 (1917); Grimes v King, 311 Mich 399; 18 NW2d 870 (1945).
Generally, the law imposes no duty on a possessor of land to maintain or improve the condition of an adjacent street, sidewalk, or other public way. Mendyk v Michigan Employment Security Commission, 94 Mich App 425; 288 NW2d 643 (1979). This instruction pertains only to the duty of the possessor to maintain his or her own land so as not to injure users of the abutting street, sidewalk, or public way.
History
M Civ JI 19.09 was added January 1982. TOP
A possessor or occupier of [land / premises / a place of business] who owes a duty to [name of plaintiff] may not delegate that responsibility to another and thus avoid liability.
Note on Use
This instruction should be given if an issue is raised at the trial that the occupier or possessor of property has attempted to delegate the duty regarding the premises by either a lease arrangement, a contract, or the employment of an independent contractor.
Comment
See McCord v United States Gypsum Co, 5 Mich App 126; 145 NW2d 841 (1966), lv den, 379 Mich 759 (1967), citing with approval Prosser, Handbook of the Law of Torts (2d ed), § 61, p 404, and Bradley v Burdick Hotel Co, 306 Mich 600; 11 NW2d 257 (1943). See also Quinlivan v Great Atlantic & Pacific Tea Co, 395 Mich 244; 235 NW2d 732 (1975); Misiulis v Milbrand Maintenance Corp, 52 Mich App 494; 218 NW2d 68 (1974).
History
M Civ JI 19.10 was added January 1982. TOP
A landlord, [name of landlord], undertaking to make repairs on the leased premises may not delegate his or her duty to another and avoid liability for injuries occurring on the leased premises, but remains responsible to the [tenant / tenant’s invitees], [name of tenant / names of tenant’s invitees], for negligence of the independent contractor in undertaking or making the repairs.
Note on Use
This instruction should be given if a dangerous condition is brought about as the result of a negligent act of an independent contractor making repairs on the premises. It does not matter whether the repairs are being undertaken pursuant to a lease or other agreement, or gratuitously.
Comment
This instruction is supported by Misiulis v Milbrand Maintenance Corp, 52 Mich App 494; 218 NW2d 68 (1974).
History
M Civ JI 19.11 was added January 1982. TOP