McKim v. FORWARD LODGING, INC.

702 N.W.2d 181

266 Mich. App. 373

Katrina McKIM and Steven McKim, Plaintiffs-Appellants, v. FORWARD LODGING, INC., d/b/a Quality Inn Forward Conference Center, Defendant-Appellee.

Docket No. 251498.

Court of Appeals of Michigan.

Submitted March 2, 2005, at Grand Rapids.

Decided May 10, 2005, at 9:10 a.m.

Released for Publication July 26, 2005.

Skupin & Lucas, P.C. (by Joseph F. Lucas), Detroit, for the plaintiffs.

Collison & Collison, P.C. (by Jeffrey C. Collison and Alexander D. Bommarito), Saginaw, for the defendant.

Before: SAAD, P.J., and SMOLENSKI and COOPER, JJ.

COOPER, J.

Plaintiff Katrina McKim¹ appeals on leave granted a trial court order granting defendant Forward Lodging, Inc.'s motion for summary disposition pursuant to MCR 2.116(C)(10) in this premises liability action. As there remains a question of material fact whether defendant breached its duty of care to plaintiff as an invitee, we reverse the trial court's order and remand for further proceedings consistent with this opinion.

I. Factual and Procedural Background

Defendant's complex includes a hotel, conference center, and restaurant in West Branch, Michigan. At around 10:30 a.m. on the morning of January 6, 2001, a hotel guest, Verna Dolle, was injured when she slipped and fell on ice in defendant's north parking lot. An ambulance was summoned and two paramedics arrived on the scene. Several of defendant's employees came to Ms. Dolle's assistance, including Jana Healey, the assistant manager of defendant's restaurant. As Ms. Healey stepped off the sidewalk to cross the north parking lot, she also slipped and fell, breaking her ankle. At that time, a second ambulance was summoned and plaintiff arrived on the scene. After assessing Ms. Healey's condition, plaintiff walked across the parking lot to her ambulance to obtain the appropriate medical equipment. On the way, plaintiff slipped and fell on the ice, hitting her head on the pavement. It is undisputed that the north parking lot had not been salted before Ms. Dolle fell. However, there was conflicting testimony on many issues pertaining to the condition of the north parking lot at the time of these falls. The witnesses presented different accounts regarding the visibility of the ice on the asphalt surface, when the parking lot was actually salted, and whether plaintiff was warned to be careful of the ice.²

Plaintiff subsequently filed the current premises liability action. On May 8, 2003, the trial court granted defendant's motion for summary disposition of plaintiff's claims. The trial court found that defendant did not have a duty to warn plaintiff of the icy conditions, as the danger was open and obvious. One month later, the trial court denied plaintiff's motion for reconsideration as untimely. Plaintiff's motion was based upon the affidavit of an architect stating that the hotel's roof design was defective, as it allowed water from melting snow to discharge onto the cooler parking lot surface, contributing to the formation of ice. Subsequently, the trial court denied plaintiff's motion for relief from judgment based on newly discovered evidence³ and fraud.⁴ Ms. Dolle, as a resident of Ohio, had filed a negligence action in federal court. Evidence presented in that case revealed that defendant was not only aware of the icy conditions in the north parking lot, but had actually created the dangerous condition on the previous day. Defendant's employees spent several hours spraying hot water to dislodge an ice dam on the roof. There was evidence that mist from this activity coated the north parking lot and that the water poured over the roof created giant icicles on that side of the building. However, defendant never revealed this maintenance activity during plaintiff's case.⁵

II. Duty of Care Owed to a Paramedic on Hotel Property

In granting leave to appeal, this Court ordered the parties "to address the issue of the duty owed by defendant, as a private business or commercial premises owner, to plaintiff given her status upon entry onto defendant's premises as a paramedic or emergency medical responder employed by the county."⁶ The parties were directed not to assume that plaintiff was an invitee.⁷ Plaintiff contends that she was an invitee on the premises. As plaintiff was summoned to care for an injured guest, plaintiff contended that she should receive the same protection as that guest. Defendant, however, contends that plaintiff was a licensee and that her right to recovery should be limited by the "fireman's rule."

Determining plaintiff's status on the land is especially important, as the possessors of land do not owe the same duty of care to all who enter.

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.⁸

Invitees, however, are owed a higher duty of care. "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.'"⁹ In Michigan, the definition of "invitee" has been limited to one who is invited onto the land for a commercial purpose:

[W]e 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.¹⁰

What status to grant a county-employed paramedic responding to an emergency on private property is an issue of first impression for this Court. As noted above, defendant asks this Court to determine that a paramedic is a licensee and to extend the "fireman's rule" to limit a paramedic's right to recovery. In Kreski v. Modern Wholesale Electric Supply Co.,¹¹ the Michigan Supreme Court adopted the common-law "fireman's rule."

Thus, as a matter of public policy, we hold that fire fighters or police officers may not recover for injuries occasioned by the negligence which caused their presence on the premises in their professional capacities. This includes injuries arising from the normal, inherent, and foreseeable risks of the chosen profession.¹²

The public policy arguments in favor of adopting such a rule included the fact that the very nature of the service provided by police officers and firefighters is to confront dangerous situations for the protection of the public.¹³ As they respond to emergency situations, "[f]ire fighters and police officers often arrive at unpredictable times and may enter portions of the premises not open to the public."¹⁴ It would, therefore, be unreasonably burdensome to require landowners to prepare their premises for the arrival of these emergency personnel.¹⁵ Furthermore, limiting the recovery of firefighters and police officers to worker's compensation benefits fairly spreads the cost of injury onto the public.¹⁶

Under the common-law rule, there may have been room to extend the limitation on recovery to paramedics; however, we need not decide that issue.¹⁷ The Michigan Legislature abolished the common-law rule¹⁸ and enacted a statutory version.¹⁹ With certain delineated exceptions and limitations, the statutory "fireman'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 his or her injuries.²⁰ According to the clear and unambiguous language of the statute, only firefighters and police officers have a limited right to recover for injuries. There is no room for interpretation, and we must reject defendant's request to extend the limitation.²¹

We also reject defendant's contention that plaintiff should be treated as a licensee. We first note that plaintiff responded to a call from defendant to assist a hotel guest and an employee. Both of these parties were clearly invitees on defendant's property. Ms. Dolle, as a paying guest of the hotel was obviously on the premises for a commercial purpose.²² Before the Stitt commercial purposes test was introduced into Michigan jurisprudence, employees were considered invitees of the landowner.²³ We see no need to change the status of employees under the commercial purposes test. An employee furthers a landowner's pecuniary gain and, therefore, is clearly on the land for the owner's commercial purpose. Beyond owing its hotel guest and employee the heightened duty of care of an invitor to an invitee, defendant also had a special relationship with both of these parties, obligating defendant to provide aid and assistance not available to the general public. It is well settled that a special relationship exists between an innkeeper and his or her guests and between an employer and his or her employee mandating a heightened standard of care.²⁴

Plaintiff contends that she is entitled to the same standard of care as those she was...