Daily Development for Tuesday, August 22, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

LANDOWNER'S LIABILITY; CHURCHES: Michigan rejects majority rule and concludes that "commercial purpose" is necessary to make a party on an owner's premises an invitee, and that churchgoers, members or not, lack the necessary commercial purpose and are mere licensees. Stitt v. Abundant Life Fellowship, 2000 WL 097152 (Mich. 7/18/00)

This case presents the deceptively simple question of whether a party who attends a bible study session at a church premises, but who is not a member of the congregation, will be treated as an invitee or licensee for purposes of determining the duty of care. Plaintiff in this case was injured when she tripped over a tire stop allegedly placed negligently in a dark parking area.

The court treated this issue as a question of law: whether an individual who enters a church premises for noncommercial purposes can be treated as an invitee under any circumstances. Ultimately it concluded that churchgoers, whether members of the congregation or not, are simple licensees and are not entitled to the affirmative duty of care established for invitees.

Under the Michigan category approach to defining the duty of care owed to persons injured on a landowner's premises: a "trespasser" is entitled to be protected from injury only from "wilful and wanton" misconduct; a "licensee" is entitled only to be warned of any hidden dangers the owner knows about or should know about, and then only if the licensee does not know and reasonably would no know of them; but an "invitee" is owed an affirmative duty of care. In the case of the invitee, 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."

Typically an ordinary social guest is treated as a licensee, while 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."

In analyzing the status of church visitors, the court noted that "[b]ecause invitee status necessarily turns on the existence of an "invitation," we must examine our common law in order to ascertain the meaning of that term." The court analyzed Michigan case law suggesting that for a person to be an "invitee" there must be a commercial purpose associated with the visit, and even acknowledged that a number of other courts and secondary sources refer to Michigan as having adopted this definition.

But other Michigan cases appear to adopt the approach that a commercial purpose is not required if a general invitation has been extended.

In any event, the court concluded that no Michigan case has every evaluated whether a churchgoer is entitled to invitee status. Cases involving plaintiffs injured on Church premises have all involved parties who came on the premises for a distinct commercial purpose, as opposed to church activities. (In one case the "commercial purpose" was an illegal bingo game; in another the purpose was a carnival/fund raiser.)

The court then proceeded to analyze the Restatement Section 362 approach, adopted in many other jurisdictions:

"(1) An invitee is either a public invitee or a business visitor.

(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.

(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land."

The court finally concluded that Michigan tradition runs against the notion that any invitation to the public is sufficient, and adopted the rule that a commercial purpose is necessary to render a visitor an invitee in Michigan.

"In harmonizing our cases, 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."

The question remained, however, whether church visitors come to the premises for a purpose that should be defined as "commercial." The court rejected this premises. Church visitors, in its view are mere licensees. The court quoted with approval from a Florida case.

"[A]n invitation to enter and worship, whether it be either express or implied, does not constitute one who accepts the invitation an invitee in the legal sense. In order for such relationship to arise the person entering onto the premises, i.e., the invitee, must have done so for purposes which would have benefited the owner or occupant of the premises, i.e., the invitor, or have been of mutual benefit to the invitee and the invitor. And as we view it this benefit must be of a material or commercial rather than of a spiritual, religious, or social nature.."

The court extended the view to church members as well as to occasional visitors, even though it might be argued that church members are the church's typical source of financial support. The court indicated that the purpose of the visit is the religious activities of the visitors, and not the support of the Church itself. Indeed in this case, the plaintiff alleged that in prior visits she had contributed to the support of the church when the collection plate was passed. But the court rejected the notion that collection of funds was the purpose of the visit. Instead, it held that the visitors to the Church were there to enjoy "unrecompensed hospitality" in the same way that social guests in a home are welcomed.

The court acknowledged that it was in the minority position on this point, but viewed its conclusion as "best for Michigan. Justice Kelly, in dissent, argued forcefully for the Restatement position, quoting Michigan authority stating that: "The Restatement is . . . an attempt to categorically recite the content of the common law." Judge Kelly then argued that Michigan precedent in fact was consistent with the language of Restatement Section 332 and imposed no "commercial purpose" requirement.

Interestingly, the dissent noted that Florida now has rejected the reasoning that supported the quoted passages relied upon by the majority and has adopted Restatement Section 332.

Comment: The dissenting opinion, joined in by another judge, focuses upon the expectation by the party entering the premises that the owner has anticipated public visitations and has made the premises ready. Is there any difference between a church and a WalMart in this regard? Perhaps, but what about between a church and a barber shop? Between a church and a local pub? The editor is not persuaded that a church that opens itself to regular public worship activities is any different from these "commercial invitors."

As to the argument that the churchgoer's purposes are noncommercial, related only to their objectives of worship, the fact is that all patrons on commercial premises are there for their own objectives, and only incidentally to give money to the landowner. In fact, many persons in bars, barber shops and WalMarts are there as companions, or looking for friends, or simply escaping the heat, and have no individual purpose to trade with the landowner. Such persons fall within the broad definition of business invitee, and so should churchgoers.

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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