                           STATE OF MICHIGAN

                            COURT OF APPEALS



BOBBI KLINERT, Next Friend of TRAVIS                                 UNPUBLISHED
KLINERT, Minor,                                                      April 18, 2017

               Plaintiff-Appellant,

v                                                                    No. 331016
                                                                     Genesee Circuit Court
D L STORAGE, INC.,                                                   LC No. 15-104251-NO

               Defendant-Appellee.


Before: FORT HOOD, P.J., and JANSEN and HOEKSTRA, JJ.

PER CURIAM.

       Plaintiff appeals as of right the trial court’s order granting summary disposition in favor
of defendant pursuant to MCR 2.116(C)(10). We affirm.

       On appeal, plaintiff argues that the trial court erred in granting summary disposition in
favor of defendant where it concluded that (1) Travis Klinert was a trespasser on defendant’s
property, and (2) that the doctrine of attractive nuisance was not applicable under the facts of this
case. We disagree.

        This Court reviews de novo a trial court’s decision regarding a motion for summary
disposition. McLean v Dearborn, 302 Mich App 68, 72; 836 NW2d 916 (2013).

       In reviewing a motion under MCR 2.116(C)(10), the trial court considers
       affidavits, pleadings, depositions, admissions, and other evidence introduced by
       the parties to determine whether no genuine issue of material fact exists and the
       moving party is entitled to judgment as a matter of law. The evidence submitted
       must be considered in the light most favorable to the opposing party. [Id. at 73
       (citations and quotation marks omitted).]

       “In a premises liability action, a plaintiff must prove the elements of negligence: (1) the
defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the
proximate cause of the plaintiff’s injury, and (4) the plaintiff suffered damages.” Benton v Dart
Properties, Inc, 270 Mich App 437, 440; 715 NW2d 335 (2006). To determine what duty
defendant owed to Travis, an initial consideration is what status Travis held on defendant’s
property. The reason this is important is because “a landowner’s duty to a visitor depends on


                                                -1-
that visitor’s status.” Stitt v Holland Abundant Life Fellowship, 462 Mich 591, 596; 614 NW2d
88 (2000).

        In Stitt, the Michigan Supreme Court set forth the legal principles governing the analysis
of the status that an individual holds on the property of another.

       A trespasser is a person who enters upon another’s land, without the landowner’s
       consent. The landowner owes no duty to the trespasser except to refrain from
       injuring him by willful and wanton misconduct.

       A licensee is a person who is privileged to enter the land of another by virtue of
       the possessor’s consent. A landowner owes a licensee a duty only to warn the
       licensee of any hidden dangers the owner knows or has reason to know of, 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. Typically, social guests are licensees who assume the
       ordinary risks associated with their visit.

               The final category is invitees. An invitee is a person who enters upon the
       land of another upon an invitation which carries with it an implied representation,
       assurance, or understanding that reasonable care has been used to prepare the
       premises, and make [it] safe for [the invitee’s] reception. The landowner has a
       duty of care, not only to warn the invitee of any known dangers, but the additional
       obligation to also make the premises safe, which requires the landowner to inspect
       the premises and, depending upon the circumstances, make any necessary repairs
       or warn of any discovered hazards. Thus, an invitee is entitled to the highest level
       of protection under premises liability law.

               A possessor of land is subject to liability for physical harm caused to his
       invitees by a condition on the land if the owner: (a) knows of, or by the exercise
       of reasonable care would discover, the condition and should realize that the
       condition involves an unreasonable risk of harm to such invitees; (b) should
       expect that invitees will not discover or realize the danger, or will fail to protect
       themselves against it; and (c) fails to exercise reasonable care to protect invitees
       against the danger. [Citations and quotation marks omitted.]

        As an initial matter, plaintiff asserts that any questions regarding Travis’s status on
defendant’s property are questions of fact that ought to be submitted to a jury. In support of this
assertion, plaintiff points to White v Badalamenti, 200 Mich App 434, 436; 505 NW2d 8 (1993),
where this Court recognized, “[w]hether someone is an invitee or licensee on another’s property
may be a question of fact where persons of average intelligence can disagree over whether the
guest is on the property for a social purpose or to render a service beneficial to the owner of the
property.” In this case, questions of fact do not exist concerning whether Travis was on
defendant’s property for a social purpose or to render a beneficial service to defendant, therefore
plaintiff’s reliance on White is misplaced. Additionally, the Michigan Supreme Court has
recognized that whether a defendant “owes a particular plaintiff a duty” presents a question of
law. Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162; 809 NW2d 553

                                                -2-
(2011); see also Bailey v Schaaf, 494 Mich 595, 603; 835 NW2d 413 (2013) (recognizing that
where a defendant owes a plaintiff a duty is a question of law that is reviewed de novo). This
Court has also made a similar determination. For example, in Burnett v Bruner, 247 Mich App
365, 368; 636 NW2d 773 (2001), this Court, quoting Riddle v McLouth Steel Products Corp, 440
Mich 85, 95-96; 485 NW2d 676 (1992), concluded, in pertinent part, as follows:

                  The threshold issue of the duty of care in negligence actions must be
          decided by the trial court as a matter of law. In other words, the court determines
          the circumstances that must exist in order for a defendant’s duty to arise . . . . A
          negligence action may only be maintained if a legal duty exists which requires the
          defendant to conform to a particular standard of conduct in order to protect others
          against unreasonable risks of harm. [Citations omitted in original.]

Accordingly, the trial court correctly recognized that Travis’s status on defendant’s property is a
question of law.

         On appeal, plaintiff contends that Travis was an invitee on defendant’s property, given
that he visited defendant’s property at the invitation of his friend, who possessed an access code
that opened the automatic gate. According to plaintiff, JL,1 Travis’s friend, must have obtained
the access code from defendant, and in support of this assertion, plaintiff points to the deposition
testimony of Ranjit Chera, defendant’s principal, who testified that each tenant of the storage
facility has a four digit code that is “programmed[,]” and that once a tenant no longer stores their
possessions at the storage facility, the code is deleted and a new code assigned for the new
tenant. According to plaintiff, this testimony establishes that “[JL’s] status was therefore that of
an invitee and [Travis’s] status on the property was not that of a trespasser but of an invitee
through the invitation of [JL].” However, in Stitt, the Michigan Supreme Court determined in
the context of public invitees, “Michigan is better served by recognizing that invitee status must
be founded on a commercial purpose for visiting the owner’s premises.” Stitt, 462 Mich at 607.
Stitt involved facts where the plaintiff was injured after visiting the defendant church, and the
Michigan Supreme Court was asked to consider whether the plaintiff was an invitee on the
defendant’s property. The Michigan Supreme Court stated, in pertinent part, as follows:

          We conclude that the imposition of additional expense and effort by the
          landowner, requiring the landowner to inspect the premises and make them safe
          for visitors, must be directly tied to the owner’s commercial business interests. It
          is the owner’s desire to foster a commercial advantage by inviting persons to visit
          the premises that justifies imposition of a higher duty. In short, we conclude that
          the prospect of pecuniary gain is a sort of quid pro quo for the higher duty of care
          owed to invitees. Thus, we hold that the owner’s reason for inviting persons onto
          the premises is the primary consideration when determining the visitor’s status: In
          order to establish invitee status, a plaintiff must show that the premises were held
          open for a commercial purpose. [Id. at 604.]



1
    We will refer to minors other than Travis Klinert by their initials.


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While it is not disputed that defendant’s property was “open for a commercial purpose[,]” id., the
record does not yield any indication that Travis was visiting defendant’s property for a
commercial purpose. Id. at 607. For example, during his deposition, Travis testified that when
he and his brother, TK, and JL visited the storage facility on March 27, 2012, it was the first time
that Travis had been there, and he did not believe that TK or JL had visited the storage facility
before.

        A review of the record confirms that when Travis, TK and JL visited the storage facility,
they did so with the apparent purpose of having some childish fun and their purposes were not
commercial in nature. Stitt, 462 Mich at 607. The present facts can thus be distinguished from
those in Bragan v Symanzik, 263 Mich App 324, 326; 687 NW2d 881 (2004), where the plaintiff,
an eleven-year-old boy accompanied by his parents, was injured at the defendant’s berry farm
while hanging from a “Jacob’s Ladder” in the defendant’s Fun Barn. In that case, it was not
disputed that under those circumstances, the child plaintiff was an invitee. Conversely, in this
case, there is no suggestion that Travis entered defendant’s property “upon an invitation which
carries with it an implied representation, assurance, or understanding that reasonable care has
been used to prepare the premises, and make [it] safe for [the invitee’s] reception.” Stitt, 462
Mich at 597. The trial court therefore correctly determined that Travis was not an invitee on
defendant’s property.

        On appeal, plaintiff also contends that Travis held the status of a licensee on defendant’s
property. In support of this contention, plaintiff points to this Court’s decision in Pippin v
Atallah, 245 Mich App 136, 142; 626 NW2d 911 (2001). In Pippin, this Court noted that
approval to enter the premises of another can be express or implied. Pippin, 245 Mich App at
142. “Permission may be implied where the owner, or person in control of the property,
acquiesces in the known, customary use of property by the public.” Id. (citation and quotation
marks omitted.) In Pippin, the minor child was injured when he “collided with a four-foot-high
chain while riding a bicycle,” on the defendants’ parking lot, resulting in injuries to his neck,
head and brain. Id. at 139. The record evidence confirmed that at the back of the parking lot
where the minor child was injured was a maintained path that had been regularly used by
members of the public for at least ten years to access a local park and trail. Id. at 139-140. In
Pippin, this Court considered the ample record evidence in that case and concluded that
traversing the defendants’ property was “a known and customary use of the property by the
public.” Id. at 142.2

       According to plaintiff in her brief on appeal, “the invitation by invitee [JL] to [Travis] to
enter onto the [d]efendant’s property to gain access to the storage units establishes, at the very



2
  This evidence included the consistent statement of a Rochester Police detective, as well as the
fact that there existed “a maintained pathway running from the park to [the defendants’
property], with an official sign posted directly at that entrance[.]” Pippin, 245 Mich App at 142.
Where the property at issue was a former A & P grocery store parking lot, the A & P property
manager also stated during a deposition that “the public’s use of the lot was no serious problem.”
Id.


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least, an implied permission for [Travis] to enter onto [defendant’s] property.” However, as we
have concluded in the foregoing analysis, the record does not support a conclusion that JL was
an invitee on defendant’s property, and therefore plaintiff’s argument that JL was an invitee who
in some way could imply permission for Travis to enter onto defendant’s property is simply
attenuated, and ultimately unsuccessful. Consequently, where Travis did not hold the status of
either an invitee or a licensee, the trial court properly concluded that he was a trespasser on
defendant’s property on March 27, 2012.

        As stated in Stitt, a landowner “owes no duty to the trespasser except to refrain from
injuring him by ‘willful and wanton’ misconduct.” Stitt, 462 Mich at 591 (citations and
quotations omitted); see also Sanders v Perfecting Church, 303 Mich App 1, 4; 840 NW2d 401
(2013) (recognizing that a landowner does not owe any duty to a trespasser in the absence of
willful and wanton misconduct). On appeal, plaintiff asserts that if this Court agrees with the
trial court that Travis was a trespasser, defendant is still liable for Travis’s injuries arising from
riding the automatic gate pursuant to the attractive nuisance doctrine. In Bragan, this Court
discussed the attractive nuisance doctrine, and observed that landowners owe a “heightened duty
of care to known child trespassers.” Bragan, 263 Mich App at 328 (emphasis added).

               Pursuant to the attractive nuisance doctrine . . . the landowner is liable for
       harm caused by a dangerous artificial condition located where children are known
       to trespass if children would not likely realize the danger and the owner fails to
       use reasonable care to eliminate a danger whose burden outweighs its benefit.
       [Id. (footnote omitted).]

       In Rand v Knapp Shoe Stores, Inc, 178 Mich App 735, 740-741; 444 NW2d 156 (1989),
this Court, quoting the Restatement of Torts, 2d, §339, set forth the legal principles of the
doctrine of attractive nuisance:

       A possessor of land is subject to liability for physical harm to children trespassing
       thereon caused by an artificial condition upon the land if

       (a) the place where the condition exists is one upon which the possessor knows or
       has reason to know that children are likely to trespass, and

       (b) the condition is one of which the possessor knows or has reason to know and
       which he realizes or should realize will involve an unreasonable risk of death or
       serious bodily harm to such children, and

       (c) the children because of their youth do not discover the condition or realize the
       risk involved in intermeddling with it or in coming within the area made
       dangerous by it, and

       (d) the utility to the possessor of maintaining the condition and the burden of
       eliminating the danger are slight as compared with the risk to children involved
       and

       (e) the possessor fails to exercise reasonable care to eliminate the danger or
       otherwise to protect the children.

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       All five conditions must be met in order for a possessor of land to be held liable
       for injury to a trespassing child. At the onset, liability under this rule is imposed
       only where the injury is caused by an “artificial condition.” [Emphasis added;
       citations omitted.]

        In support of her assertion that defendant should be held liable pursuant to the attractive
nuisance doctrine, plaintiff points to the November 12, 2015 affidavit of TM, in which she
averred that she had witnessed children playing near the automatic gate, hanging from it, and that
she herself suffered injuries in January 2010 when she was hanging from the gate. According to
plaintiff, this record evidence confirmed that defendant knew or had reason to know that children
were likely to trespass at the storage facility.

        In his deposition, Chera testified that before the date of Travis’s injury, March 27, 2012,
he was not aware of anyone being injured by the automatic gate. During his deposition, Travis
also stated that he had not been to defendant’s property before, and that he did not think that TK
or JL had been there before either. Plaintiff testified that on March 27, 2012, she was not aware
that Travis and TK were planning on visiting the storage facility, and she had never seen them
play at the storage facility before March 27, 2012. Plaintiff also denied being aware of other
children going to play on the automatic gate, and she had never personally seen any children
playing on the automatic gate.

        As plaintiff points out in her brief on appeal, actual notice of children being likely to
trespass is not necessary, rather, “it is enough that [defendant] have reason to know that children
are likely to trespass.” Byrne v Schneider’s Iron & Metal, Inc, 190 Mich App 176, 179; 475
NW2d 854 (1991). Rand, a case from this Court cited above, is instructive in our analysis
regarding whether the doctrine of attractive nuisance is applicable. In Rand, the plaintiff’s minor
son was injured when he was struck by a vehicle while riding his bicycle in an alley behind the
defendant’s shoe store. The plaintiff submitted as evidence the affidavit of the child’s father, in
which he averred that children used a nearby sidewalk as a bicycle jump, and would jump off of
the sidewalk into the public alley where motorists travelled. Rand, 178 Mich App at 740. The
trial court in Rand noted that “plaintiff has failed to come forward with evidence which
convinces this Court that the [defendants] knew or had reason to know of the asserted dangerous
condition. Id. at 742. The trial court in Rand stated, in pertinent part, as follows:

              Plaintiff does not indicate for example, that the activity of the bike
       jumping occurred during store hours, or that the store employees and the landlord
       received complaints of this activity. Rather, the affidavit of James Rand, Sr.,
       merely indicates in part that he observed children frequently use the sidewalk as a
       bike jump, and that he believed this was a dangerous condition. [Id.]

This Court affirmed the trial court’s granting of summary disposition pursuant to MCR
2.116(C)(10), noting the lack of evidence that the defendants “had notice that the children were
using the sidewalk as a bicycle jump into the public alley and thereby subjecting themselves to a
dangerous condition.” Rand, 178 Mich App at 742. While we acknowledge that TM averred
that she herself was injured from climbing on the gate in January 2010, and that she observed
other children playing around the storage facility and hanging off of the gate “on numerous
occasions prior to March 27, 2012[,]” like the plaintiff’s father’s affidavit in Rand, TM’s

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affidavit, even when viewed in the light most favorable to plaintiff, does not yield genuine issues
of material fact regarding whether defendant knew, or should have known, that the storage
facility was a location where children were likely to trespass. The trial court therefore properly
determined that the attractive nuisance doctrine is not applicable under the facts of this case.

       Affirmed. Defendant, as the prevailing party, may tax costs pursuant to MCR 7.219.



                                                            /s/ Karen M. Fort Hood
                                                            /s/ /Kathleen Jansen
                                                            /s/ Joel P. Hoekstra




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