Pigeon v. Radloff

Sawyer, P.J.

(dissenting). I respectfully dissent.

The majority makes a valiant effort to distinguish this case from the controlling opinions of this Court and the Supreme Court. However, its reasoning is nevertheless fatally flawed. This case involves two issues: (1) the applicability of the open and obvious danger doctrine to the premises liability claim and (2) the viability of the negligent supervision claim. With respect to both issues, the *447majority appears to concede that had plaintiff been an adult, summary disposition would have been appropriate. The majority, however, argues that because plaintiff was a minor, his claims remain viable. I disagree.

There is no doubt that were plaintiff an adult, the open and obvious danger doctrine would preclude recovery on the premises liability claim. The Supreme Court has held, in the context of a products liability case, that the open and obvious danger doctrine precludes recovery for dangers associated with the use of an aboveground swimming pool. Glittenberg v Doughboy Recreational Industries (On Rehearing), 441 Mich 379; 491 NW2d 208 (1992). Furthermore, the Supreme Court has extended the open and obvious danger doctrine to premises liability cases, Riddle v McLouth Steel Products Corp, 440 Mich 85; 485 NW2d 676 (1992). Additionally, this Court has held that the open and obvious danger doctrine applies to minors in products liability cases, specifically an above-ground swimming pool case. Mallard v Hoffinger Industries, Inc, 210 Mich App 282; 533 NW2d 1 (1995). Thus, there is clear precedent favoring defendants were this a products liability case or a premises liability case involving an adult plaintiff. The majority, however, believes this case is distinguishable because it is a premises liability case involving a minor plaintiff, a permutation that apparently has not yet been decided by this Court.

I fail to see any reason to distinguish this case merely because plaintiff is a minor. In Mallard, supra at 285-286, this Court explained why the open and obvious danger doctrine, in the context of a products liability case, applies to children as well as adults:

Because the determination of the obvious nature *448of the danger is an objective one that focuses on the typical pool user, and because it is not necessary that the user understand the precise nature of every possible injury that might result from diving into an above-ground pool, we are unable to distinguish this case from Glittenberg on the basis of the victim’s age. We tend to agree with defendant Pool Town’s comment that, if a child is capáble of understanding a warning, the dangerous condition would be obvious to the child, rendering the warning unnecessary. Conversely, if the condition is not obvious to the child, then a warning would likely be of little use.

This reasoning is as applicable to premises liability cases as it is to products liability cases. That is, in either case, if the minor is sufficiently immature to appreciate the dangerous condition, he is also sufficiently immature to appreciate the warning.

The more relevant question, I believe, is the need or duty to supervise the minor while on the premises. This is the basis of plaintiffs second claim, the lack of adequate supervision by defendants while plaintiff was on the property and using the pool. This is admittedly a stronger argument for plaintiff than the premises liability claim, but one that, I believe, nevertheless must fail. The majority dismisses the trial court’s reliance on Bradford v Feeback, 149 Mich App 67, 70; 385 NW2d 729 (1986), noting that Bradford involved the children of guests and not children who were guests. The majority notes that in Bradford, the parents of the children were the guests themselves of the premises owner and, therefore, were in a position to supervise their own children directly and did not need to rely upon the premises owner to do so. This, however, begs the question in this case regarding whether plaintiff was sufficiently immature as to need supervision.

*449As the majority acknowledges in its opinion, plaintiff was not invited to the property by defendants, but, rather, by their son. The majority further acknowledges that defendants were not even home at the time of the accident.

Thus the majority would impose liability on defendants for failure to supervise a guest not invited by themselves and who was allowed to come to their home and swim unsupervised by his own parents.1 Furthermore, plaintiff points to no evidence that he obtained permission to go to defendants’ home to swim contingent upon a promise by defendants to supervise him once he arrived. That is, defendants would certainly be liable for a failure to supervise plaintiff had they voluntarily assumed a duty to do so. But plaintiff points to no evidence that such a duty was voluntarily assumed.

In short, I believe that the lesson to be learned from Bradford, supra, is not that social guests have a responsibility to supervise the children they bring with them. Rather, it is that parents have a duty to supervise their own children, or determine that their children are of sufficient age and maturity to no longer need such supervision. In either event, the responsibility lies with the parent, not the premises owner. When a minor visits the home of another person, three possible situations exist: (1) the minor has been allowed to go there unsupervised, (2) the parents accompany the child and supervise him, or (3) the parents do *450not accompany the child, but allow the child to go only with the understanding that there will be a responsible adult, such as the premises owner, present to supervise the child because the parents have determined the child is still in need of supervision. In my view, it is only under this third condition, where the premises owner has assumed responsibility for supervising the unaccompanied child, that the premises owner owes a duty to supervise the minor guest and is liable for any negligent supervision.

In the case at bar, plaintiff points to no evidence to establish that defendants agreed to supervise the minor. Plaintiff points to no explicit promise by defendants that they would supervise the child, nor is there anything implicit in defendants’ conduct that implies an agreement to supervise the child, inasmuch as they were neither present in the home at the time nor did they themselves invite the minor.2

For the above reasons, I would conclude that the trial court correctly granted summary disposition for defendants and I would affirm.

We do not know whether plaintiff was given permission by his parents to go to defendants’ home to swim or whether he went there without permission. I do not believe, however, that that affects the analysis. Either plaintiff’s parents concluded that plaintiff did not need supervision or they failed to supervise plaintiff adequately to prevent him from going without permission. In either event, the responsibility for the supervision or lack of supervision rests with the parent, not the homeowner.

For example, if a premises owner were to call the parents of a seven-year-old child and invite the child over to swim in the pool with the premises owner’s own seven-year-old child, it is reasonable to conclude that there is an implied promise by the premises owner to supervise the visiting seven-year-old child, though perhaps prudent parents would clarify the nature of the supervision to make sure it is safe to allow their seven-year-old child to attend the pool party. The facts of this case, however, do not give rise to such an implied promise to supervise.