Ak v. Benedict Talan

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

AK, a Minor, by Next Friend KRISTINE UNPUBLISHED

KURZATKOWSKI, September 14, 2023

Plaintiff-Appellant,

v No. 361158

Oakland Circuit Court

BENEDICT TALAN, TRUDY TALAN, COSTCO LC No. 2020-180619-NO

WHOLESALE CORPORATION, BACKYARD

PLAY SYSTEMS, LLC, and WA HOME

IMPROVEMENT, INC.,

Defendants-Appellees.

Before: LETICA, P.J., and MURRAY and PATEL, JJ.

PER CURIAM.

Plaintiff appeals as of right the trial court’s order granting defendants’ motions for

summary disposition under MCR 2.116(C)(8) (failure to state a claim for relief) and (10) (failure

to establish a genuine issue of material fact). We affirm.

I. FACTS AND PROCEEDINGS

On June 9, 2019, eight-year-old AK was injured when she fell from a backyard playset

while at a birthday party at the home of defendants Benedict and Trudy Talan (collectively the

Talan defendants). The involved playset was the Ultra Playset, Model 4098, manufactured by

defendant Backyard Play Systems, LLC (Backyard). The Talan defendants purchased the playset

from defendant Costco Wholesale Corporation (Costco) in 2013, and placed it on their backyard

lawn. The playset was available for sale on Costco’s website, but not sold in Costco’s stores.

Backyard contracted with defendant WA Home Improvement, Inc. (WA) for delivery, assembly,

and installation of the playset. WA’s employee, Weislaw Synowiec, assembled the playset for the

Talan defendants. Backyard’s user’s manual states that grass is not a safe surface for the playset

and recommended placing a layer of cushioning material, such as wood chips, under the playset.

The Talan defendants held a birthday party for their daughter in June 2019. AK and her

mother, plaintiff, were guests at the party. The Talan defendants allowed the child guests to use

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the playset and a hot tub. While playing on the playset, AK slid down one of the slides and slipped

on a wet spot on the slide, which caused her to fall over the side, onto the grass. She fractured her

thoracic vertebra. AK received medical treatment and was able to resume her regular activities by

September 2019.

Plaintiff brought this action against defendants, asserting claims for nuisance, breach of

contract, and negligence against WA, negligence and nuisance against Costco and Backyard, and

premises liability, nuisance, negligence, and gross negligence against the Talan defendants. All

defendants moved for summary disposition and the trial court granted their motions. Plaintiff now

appeals.

II. STANDARDS OF REVIEW

A trial court’s decision on a motion for summary disposition is reviewed de novo. Eplee

v City of Lansing, 327 Mich App 635, 644; 935 NW2d 104 (2019). Defendants moved for

summary disposition under MCR 2.116(C)(8) and (10). “A motion under MCR 2.116(C)(8) tests

the legal sufficiency of a claim based on the factual allegations in the complaint.” El-Khalil v

Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2018) (emphasis in original).

“When considering such a motion, a trial court must accept all factual allegations as true, deciding

the motion on the pleadings alone.” Id. at 160. “A motion under MCR 2.116(C)(8) may only be

granted when a claim is so clearly unenforceable that no factual development could possibly justify

recovery.” Id.

Summary disposition may be granted under MCR 2.116(C)(10) “when the affidavits or

other documentary evidence, viewed in the light most favorable to the nonmoving party, show that

there is no genuine issue as to any material fact and the moving party is therefore entitled to

judgment as a matter of law.” Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 5; 890 NW2d 344

(2016). “If the moving party properly supports his or her motion, the burden shifts to the

nonmoving party to establish that a genuine issue of material fact exists.” Redmond v Heller, 332

Mich App 415, 438; 957 NW2d 357 (2020). “If the opposing party fails to present documentary

evidence establishing the existence of a material factual dispute, the motion is properly granted.”

Lowrey, 500 Mich at 7, quoting Quinto v Cross & Peters Co, 451 Mich 358, 363; 547 NW2d 314

(1996).

III. CLAIMS AGAINST WA

A. BREACH OF CONTRACT

Plaintiff argues that the trial court erred by dismissing her breach-of-contract claim against

WA, which was predicated on her claim that WA breached its contract with Barnyard by installing

the playset without laying cushioning material under it. Plaintiff asserts that she is entitled to

enforce that contract because AK is an intended third-party beneficiary of the contract. We

disagree.

“In Michigan, a person who is a nonparty to a contract may be entitled to sue to enforce

the contract as a third-party beneficiary.” Farm Bureau Ins Co v TNT Equip, Inc, 328 Mich App

667, 674; 939 NW2d 738 (2019). In Farm Bureau, this Court cited MCL 600.1405, which

provides, in pertinent part:

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Any person for whose benefit a promise is made by way of contract, as

hereinafter defined, has the same right to enforce said promise that he would have

had if the said promise had been made directly to him as the promisee.

(1) A promise shall be construed to have been made for the benefit of a

person whenever the promisor of said promise had undertaken to give or to do or

refrain from doing something directly to or for said person.

Thus, a person is a third-party beneficiary of a contract only if the contract establishes that a

promisor has undertaken a promise directly to or for the benefit of that person. Farm Bureau, 328

Mich App at 674. “A third-party beneficiary of a contract may enforce a contract against the

promisor because the third-party beneficiary ‘stands in the shoes’ of the promisee.” Id. at 674-

675. “To create a third-party beneficiary, a contract must expressly contain a promise to act to

benefit the third party.” Id. (cleaned up). Courts use “an objective standard to determine from the

language of the contract itself whether the promisor undertook to give or to do, or to refrain from

doing, something directly to or for the person asserting status as a third-party beneficiary.” Id. A

court does “not focus on the subjective intent of the contracting parties but . . . on the intent of the

contracting parties as determined solely from the form and meaning of the contract.” Id.

In Koenig v City of South Haven, 460 Mich 667; 597 NW2d 99 (1999), a large wave swept

the plaintiff’s decedent off a pier extending into Lake Michigan. The decedent sustained

permanent injuries and died five years later. Id. at 670. The piers were owned and erected by the

Detroit District Army Corps of Engineers. An agreement between the defendant city and the Corps

of Engineers delegated to the city responsibility for controlling access to the piers during inclement

weather. Id. at 671. The plaintiff brought suit against individual governmental employees for

gross negligence. The plaintiff’s theory of relief against the city was that the decedent was a third-

party beneficiary of the contract between the city and the Corps of Engineers. Id. at 672. The trial

court granted summary disposition for the defendant city. Id. On appeal, this Court held that the

trial court erred by holding that the decedent was not a third-party beneficiary to the contract and

granting summary disposition for the city on that basis. Koenig v City of South Haven, 221 Mich

App 711; 562 NW2d 509 (1997). Our Supreme Court disagreed and held that the plaintiff’s

decedent did not qualify as a third-party beneficiary of the contract between the defendant city and

the Corps of Engineers. The Court stated that “only intended third-party beneficiaries, not

incidental beneficiaries, may enforce a contract under § 1405.” Koenig, 460 Mich at 680. The

Court explained:

[A] third-party beneficiary may be a member of a class, but the class must be

sufficiently described. This follows ineluctably from subsection 1405(1)’s

requirement that an obligation be undertaken directly for a person to confer third-

party beneficiary status. As can be seen then, this of course means that the class

must be something less than the entire universe, e.g., “the public”; otherwise,

subsection 1405(2)(b) would rob subsection 1405(1) of any narrowing effect.

[Koenig, 460 Mich at 680.]

The Court observed that the agreement between the defendant city and the Corps of Engineers did

not state that the parties undertook obligations “for the benefit of a putative third-party

beneficiary.” Id. Instead, the contract allocated responsibilities between the parties with respect

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to restricting access to the piers during hazardous conditions. Id. The Court explained that the

contract “only references the public generally and includes no provision by which South Haven

undertook to do anything directly for a designated class of persons that included plaintiffs’

daughter.” Id. at 682. The Court rejected the argument that the contract implied a class of persons

who might be injured by the city’s responsibilities under the contract, remarking that “[t]his

reasoning would . . . mean that virtually every contract could be viewed as impliedly creating a

class of third-party beneficiaries because the inquiry would proceed backward from an injury to

create a class.” Id. at 683.

In Brunsell v City of Zeeland, 467 Mich 293; 651 NW2d 388 (2002), the plaintiff alleged

that she tripped and fell because of a defect in a sidewalk that the defendant city leased to a bank.

The lease agreement between the defendant and the bank required the city to maintain and repair

the sidewalk “as may be necessary for the public safety.” Id. at 294-295. The plaintiff alleged

that she was an intended third-party beneficiary of the lease agreement. Id. at 295. Applying the

principles stated in the lead opinion in Koenig, the Court concluded that the plaintiff “can only

plausibly claim third-party beneficiary status under the lease agreement as a member of the public

because her claim is premised on contractual language referring to the city repairing improvements

‘as may be necessary for the public safety.’ ” Id. at 298. The Court found that the lease agreement

defined the parties’ maintenance obligations with each other, rather than defining their obligations

“for the purpose of directly benefitting third parties.” Id. at 298-299. Accordingly, the plaintiff

“was not an intended third-party beneficiary of the lease agreement because an objective analysis

reflects that the city’s promise to the bank that the city would be responsible for repairs was not

intended to directly benefit third parties.” Id. at 299.

Plaintiff argues that this case is distinguishable because the language in the agreement

between Backyard and WA restricts the potential class of beneficiaries to children between the

ages of 3 and 11. Therefore, plaintiff argues, AK was not an incidental beneficiary, but rather a

member of the class of children who would use the playset, thereby qualifying as an intended

beneficiary. Although plaintiff generally cites page two of the agreement between Backyard and

WA, she does not specify the provision that allegedly memorializes a commitment to protect

children who will use the playset and establishes that AK is an intended beneficiary of the contract.

Plaintiff “may not leave it to this Court to search for a factual basis to sustain or reject [her]

position.” Great Lakes Div of Nat’l Steel Corp v City of Ecorse, 227 Mich App 379, 424; 576

NW2d 667 (1998). We have reviewed the contract and were unable to find any provision

indicating such a commitment. Notably, however, Paragraph 9.2 states that “[t]his Agreement

shall be binding upon and shall insure [sic] to the benefit of the parties, their permitted successors

and assignees.” Because plaintiff does not identify, and we have not found, any language

suggesting that AK, or any other third party for that matter, was an intended beneficiary of the

contract, plaintiff has not established that she is entitled to enforce the contract under a third-party

beneficiary theory.

Plaintiff also states that WA “included pamphlets in its playset boxes, stating, ‘children’s

safety is our number one priority,’ ” indicating that WA “intended for young children to use and

enjoy these playsets.” However, WA was the installer, not the seller or manufacturer of the

playsets. Plaintiff has not identified any evidence that WA inserted pamphlets into the boxes sold

by Backyard via Costco.

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In sum, plaintiff fails to establish that the installation agreement between Backyard and

WA included any provision incorporating children who would play on the playset as intended

third-party beneficiaries to the agreement. Moreover, even accepting that WA would have known

that the playsets would be used by children, there is no material distinction between the class of

child users of the playsets and the class of members of the public who would use the piers in

Koenig, or the class of pedestrians who would use the sidewalk in Brunsell. Even if the class of

children is limited to the Talan defendants’ children and their guests, the salient fact in Koenig and

Brunsell was not the size or breadth of the putative class of third-party beneficiaries, but the terms

of the contract. Plaintiff is unable to identify any contractual language indicating that the

contracting parties intended for child users of the equipment to be beneficiaries of the agreement.

Accordingly, the trial court properly granted WA’s motion for summary disposition with respect

to plaintiff’s breach-of-contract claim.

B. NUISANCE

Plaintiff also argues that the trial court erred by dismissing her nuisance claim against WA.

Again, we disagree.

“A nuisance per se is an act, occupation or structure which is a nuisance at all times and

under all circumstances.” Ford v City of Detroit, 91 Mich App 333, 335; 283 NW2d 739 (1979).

“A nuisance in fact, by contrast, is an act, occupation or structure which becomes a nuisance

because of circumstances and surroundings. Whether or not a particular thing is a nuisance in fact

is to be resolved by the trier of fact.” Id. at 335-336.

“Historically, Michigan has recognized two distinct versions of nuisance, public nuisance

and private nuisance.” Adkins v Thomas Solvent Co, 440 Mich 293, 302; 487 NW2d 715 (1992).

“A private nuisance is a nontrespassory invasion of another’s interest in the private use and

enjoyment of land.” Id., citing 4 Restatement Torts, 2d, § 821D, p 100. Our Supreme Court in

Adkins recognized the difficulty of articulating “an encompassing definition” of nuisance given

the variety of types of harm that can constitute nuisance. Consequently, “[i]mprecision in defining

nuisance leads to confusion regarding the interest it is designed to protect.” Id. at 303. “There are

countless ways to interfere with the use and enjoyment of land including interference with the

physical condition of the land itself, disturbance in the comfort or conveniences of the occupant

including his peace of mind, and threat of future injury that is a present menace and interference

with enjoyment.” Id. “The essence of private nuisance is the protection of a property owner’s or

occupier’s reasonable comfort in occupation of the land in question.” Id. In Adkins, the Court

concluded that contamination of ground water on property in proximity to the plaintiffs’ property

could not “form the basis for recovery because negative publicity resulting in unfounded fear about

dangers in the vicinity of the property does not constitute a significant interference with the use

and enjoyment of land.” Id. at 306. In this case, plaintiff argues that the playset was not safe

because it did not have appropriate cushioning material. But this theory does not involve any

invasion or interference with the use and enjoyment of another’s land and thus plaintiff cannot

establish a claim for private nuisance.

“A public nuisance is an unreasonable interference with a common right enjoyed by the

general public.” Yopek v Brighton Airport Assoc, Inc, ___ Mich App ___, ___; ___ NW2d ___

(2022) (Docket No. 359065); slip op at 4 (cleaned up). “ ‘Unreasonable interference’ includes

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conduct that (1) significantly interfered with the public’s health, safety, peace, comfort, or

convenience, (2) is proscribed by law, or (3) is known or should have been known by the actor to

be of a continuing nature that produces a permanent or long-lasting, significant effect on these

rights.” Id., ___ Mich App at ___; slip op at 4 (cleaned up). Public nuisance does not require that

the entire community be affected, so long as the nuisance will interfere with those who come in

contact with it in the exercise of a public right. Garfield Twp v Young, 348 Mich 337, 341-342;

82 NW2d 876 (1957). A property owner has no right to use its property to create a public nuisance.

Ypsilanti Charter Twp v Kircher, 281 Mich App 251, 272; 761 NW2d 761 (2008).

In the instant case, the basis for plaintiff’s nuisance claim is that a playset over grass

without cushioning material poses a risk of harm to members of the public who use it. Plaintiff

acknowledges that a playset on residential property without cushioning material is not illegal, but

she argues that disregard of the recommendations of the Consumer Product Safety Commission

(CPSC) and ASTM International, a standards organization, created a risk of bodily harm sufficient

to constitute an actionable public nuisance.1 However, plaintiff cannot demonstrate that the

residential playset posed an unreasonable risk of harm to members of the public, or that AK was

using the playset in the exercise of a public right when she was injured. AK was a social guest at

the Talan defendants’ home. Thus, plaintiff’s allegations do not support a valid claim of public

nuisance either.

C. NEGLIGENCE

Plaintiff further argues that the trial court erred by dismissing her negligence claim against

WA. We disagree.

To prove negligence against WA, plaintiff was required to prove four elements: (1) a duty

owed by WA to AK; (2) a breach of that duty; (3) causation; and (4) damages. Case v Consumers

Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000). “A claim based on the condition of the premises

is a premises liability claim.” Finazzo v Fire Equip Co, 323 Mich App 620, 626; 918 NW2d 200

(2018). If a plaintiff’s injury “arose from an allegedly dangerous condition on the land,” the

plaintiff’s claim “sounds in premises liability rather than ordinary negligence; this is true even

when the plaintiff alleges that the premises possessor created the condition giving rise to the

plaintiff’s injury.” Id. (quotation marks and citation omitted). For a party to be subject to premises

liability, that party must possess and control the property at issue but not necessarily be its owner.”

Id. at 627.

1

The CPSC and ASTM have issued standards for playground safety, which includes the use of

cushioning material under play structures. Michigan’s Playground Equipment Safety Act, MCL

408.681 et seq., requires manufacturers or assemblers of public playground equipment to comply

with “[t]he ‘handbook for public playground safety’ published for the U.S. consumer products

safety commission” and “[t]he ‘standard consumer safety performance specification for

playground equipment for public use, ASTM F1487-01’, published by the American society for

testing and materials,” MCL 408.684. But there is no requirement for homeowners to comply with

these standards for playsets on residential property.

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In Finazzo, the defendants were contractors installing a fire suppression system in the

building where the plaintiff was employed as a security guard. The plaintiff was injured when he

tripped on electrical cables lying on the floor where the installation was taking place. Id. at 622-

623. This Court concluded that the defendant’s claim sounded in premises liability because his

injury arose from an allegedly dangerous condition of the property. Id. at 626. However, upon

examining the common-law principles regarding a defendant’s control and possession of property

for purposes of imposing premises liability, this Court concluded that the defendants, “as

contractors performing changes to the property by methods that were under defendants’ control,

were also best able to prevent any harm to others.” Id. at 629-630. This Court cited 2 Restatement

of Torts, 2d, § 384, which states:

One who on behalf of the possessor of land erects a structure or creates any

other condition on the land is subject to the same liability, and enjoys the same

freedom from liability, as though he were the possessor of the land, for physical

harm caused to others upon and outside of the land by the dangerous character of

the structure or other condition while the work is in his charge. [Finazzo, 323 Mich

App at 629.]

The Court also cited comment c, p 289, which states that “[t]he rule stated in this Section applies

to anyone who erects a structure upon land or alters its physical condition on behalf of its possessor,

irrespective of whether he does so as a servant of the possessor or as a paid or unpaid independent

contractor.” Finazzo, 323 Mich App at 629. This Court concluded that the defendants “as

contractors performing changes to the property by methods that were under defendants’ control,

were also best able to prevent any harm to others.” Id. at 629-630 (cleaned up).

In this case, plaintiff’s claim involves an allegedly dangerous condition on the Talan

defendants’ property, namely a play structure over grass instead of cushioning material. Therefore,

her claim sounds in premises liability, not negligence. Furthermore, WA was not in control or

possession of the premises such that it could be liable under a premises liability theory. Although

WA may have had temporary control of the property while it was installing the playset, there is no

question of fact that it did not have control of the property when AK was injured six years later.

Accordingly, the trial court did not err by dismissing plaintiff’s claim for negligence or premises

liability against WA.

IV. CLAIMS AGAINST COSTCO AND BACKYARD

A. NUISANCE

Plaintiff argues that Costco’s and Backyard’s marketing of the playset created a nuisance.

Plaintiff argues that Costco is responsible for the alleged nuisance because it advertised the playset

by omitting the ASTM and CPSC recommendations from its website. Additionally, Backyard is

responsible because it sent untrained workers to install the playset. Plaintiff emphasizes that the

absence of protective cushioning created the actionable condition on the Talan defendants’

property that supports a nuisance claim against Costco and Backyard. The analysis of plaintiff’s

public nuisance in fact claim against WA applies equally to Costco and Backyard. Regardless of

the nature and severity of the alleged condition, plaintiff cannot establish a private nuisance unless

the condition invaded AK’s private property interest, and plaintiff’s theory does not involve any

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invasion or interference with the use and enjoyment of any private property interest of AK.

Further, she cannot establish a public nuisance because the playset was not available to the general

public and AK used the playset as a social guest at a private party, not in the exercise of a public

right. Therefore, the trial court properly dismissed the nuisance claims against Costco and

Backyard.

B. NEGLIGENCE (COSTCO)

Because AK’s injury arose from an allegedly dangerous condition of the land, i.e., the

absence of cushioning material, the claim is one for premises liability, not negligence. Further,

because Costco was not in possession or control of the land, it cannot be liable under a premises

liability theory. Therefore, the trial court properly dismissed this claim against Costco.

V. THE TALAN DEFENDANTS

A. PREMISES LIABILITY

Plaintiff argues that the there is a material question of fact whether the Talan defendants

breached the duty of care owed to AK. We disagree.

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 a

proximate cause of the plaintiff’s injury, and (4) the plaintiff suffered damages. Tripp v Baker,

___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket No. 360960); slip op at 3. In analyzing

a premises liability claim, the nature of a defendant landowner’s duty depends on whether the

injured party was on the premises as a trespasser, licensee, or invitee. Stitt v Holland Abundant

Life Fellowship, 462 Mich 591, 596; 614 NW2d 88 (2000). In this case, it is undisputed that AK

was a licensee because she was a social guest on the Talan defendants’ property at the time of her

injury.2

“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.” Stitt, 462 Mich at 596. “Typically, social guests are licensees

who assume the ordinary risks associated with their visit.” Id. In Taylor v Laban, 241 Mich App

449, 454-455; 616 NW2d 229 (2000), this Court quoted 2 Restatement Torts, 2d, § 342, p 210 for

the “best expressed” duty owed by a landowner to a licensee:

A possessor of land is subject to liability for physical harm caused to

licensees by a condition on the land if, but only if,

2

A licensee is a person who is privileged to enter the land of another by virtue of the possessor’s

consent. Kelsey v Lint, 322 Mich App 364, 371; 912 NW2d 862 (2017).

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(a) the possessor knows or has reason to know of the condition and should

realize that it involves an unreasonable risk of harm to such licensees, and should

expect that they will not discover or realize the danger, and

(b) he fails to exercise reasonable care to make the condition safe, or to warn

the licensees of the condition and the risk involved, and

(c) the licensees do not know or have reason to know of the condition and

the risk involved.

See also Sanders v Perfecting Church, 303 Mich App 1, 4-5; 840 NW2d 401 (2013) (“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.”). “In contrast to an invitee, a licensee is on the premises of another because of some

personal unshared benefit and is merely tolerated on the premises by the owner.” Taylor, 241

Mich App at 454 (cleaned up). “Consequently, a licensee is entitled to expect only that he will be

placed upon an equal footing with the possessor himself by an adequate disclosure of any

dangerous conditions that are known to the possessor.” Id. (cleaned up).

“[P]roperty owners generally owes no duty to supervise minor children of guests on their

property.” Ji Liang by Shaw v Guang Hui Liang, 328 Mich App 302, 311; 936 NW2d 710 (2019)

(cleaned up). “However, this rule applies only to claims of ordinary negligence.” Id. “In the

context of premises liability, the law imposes on landowners the duty to take reasonable or ordinary

care to prevent injury to child licensees from dangerous conditions on the land.” Id. (cleaned up).

Traditionally, a possessor of land had no general obligation to take any steps to safeguard

licensees from conditions that are open and obvious. Nathan v David Leader Mgt, Inc, ___ Mich

App ___, ___; ____ NW2d ___ (2022) (Docket No. 357420); slip op at 4; Pippin v Atallah, 245

Mich App 136, 143; 626 NW2d 911 (2001). A danger is considered to be open and obvious if an

average user with ordinary intelligence would be able to discovery the danger and the risk

presented upon casual inspection. Hoffner v Lanctoe, 492 Mich 450, 461; 821 NW2d 88 (2012).

Recently, in Kandil-Elsayed v F & E Oil, Inc, ___ Mich ___, ___; ___ NW2d ___ (2023) (Docket

Nos. 162907 and 163430); slip op at 2, our Supreme Court overruled Lugo v Ameritech Corp, Inc,

464 Mich 512, 516; 629 NW2d 384 (2001) and concluded that Lugo erroneously incorporated the

open and obvious danger doctrine into the duty analysis, contrary to “Michigan’s commitment to

comparative fault.” Id. at ___; slip op at 36, 40-49. The Court observed that courts’ attempts to

apply Lugo “generated a whole host of practical-workability problems.” Id. at ___; slip op at 39.

The Court summarized its legal conclusions as follows:

To summarize, a land possessor owes a “duty to exercise reasonable care to

protect invitees from an unreasonable risk of harm caused by a dangerous condition

of the land.” Williams [v Cunningham Drug Stores, Inc], 429 Mich [495, 499; 418

NW2d 381 (1988)]. If the plaintiff establishes that the land possessor owed plaintiff

a duty, the next step in the inquiry is whether there was a breach of that duty. . . .

As part of the breach inquiry, the fact-finder may consider, among other things,

whether the condition was open and obvious and whether, despite its open and

obvious nature, the land possessor should have anticipated harm to the invitee. If

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breach is shown, as well as causation and harm, then the jury should consider the

plaintiff’s comparative fault and reduce the plaintiff’s damages accordingly. A

determination of the plaintiff’s comparative fault may also require consideration of

the open and obvious nature of the hazard and the plaintiff’s choice to confront it.

[Kandil-Elsayed, ___ Mich at ___; slip op at 43-44.]

Kandil-Elsayed did not alter the categories of licensee, invitee, and trespasser. Id. at ___; slip op

at 39.

The Talan defendants owed AK, a licensee, a duty “to warn . . . 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.” Sanders v Perfecting Church, 303 Mich App at 4-5. Thus, it is necessary

to determine whether the location of the playset on grass was a dangerous condition that created

an unreasonable risk of harm, thereby triggering a duty to warn. In Prebenda v Tartaglia, 245

Mich App 168, 170; 627 NW2d 610 (2001), the allegedly dangerous condition was a windowless

door in the common hallway of an apartment complex. The plaintiff’s decedent was injured when

she tried to pull the door open from one side while another resident was pushing it open from the

other side. Id. at 169. The plaintiff argued that the door was “dangerously faulty” because it

lacked a window through which users could see if anyone was on the other side. This Court

concluded that the door was not a dangerous condition, but “a commonplace and ordinary door.”

This Court held “that no reasonable juror could accept that argument in light of the fact that most

doors simply do not have such windows.” Because this Court concluded that the door was not a

dangerous condition in the first place, it was not necessary to consider whether the condition was

open and obvious. Id. at 169-170.

In Bragan v Symanzik, 263 Mich App 324; 687 NW2d 881 (2004), the defendant operated

a commercial Fun Barn with a Jacob’s Ladder attraction for paying visitors. “The object of the

Jacob’s Ladder is to climb to the top and ring a bell, but 90% of climbers fall.” Id. at 326. The

11-year-old plaintiff tried to climb the ladder, but fell to the floor and fractured both wrists. The

defendant planned to keep a two-foot layer of straw under the ladder to protect climbers who fell,

but at the time of the plaintiff’s fall “there was barely enough straw to cover the ground under the

ladder.” Id. at 326-327. Addressing whether the condition was an open and obvious hazard, this

Court noted that the plaintiff testified that he knew that he could fall and that he could have noticed

the lack of sufficient straw. However, this Court further stated that “[i]t does not necessarily follow

that plaintiff, or other child invitees, would have appreciated the risk of injury from falling into the

scant amount of straw underneath a ten-foot high rope ladder.” Accordingly, this Court concluded

that the facts established a jury-triable question of fact regarding whether the hazard of falling

from the ladder onto an unprotected floor was open and obvious to the child plaintiff. Id. at 335-

336. Therefore, the defendant was not entitled to summary disposition. Id. at 336.

In the instant case, plaintiff failed to establish the presence of an unreasonably dangerous

condition in the first instance. Prebenda, 245 Mich App at 170. Reasonable jurors could not find

that the backyard playset, mounted on a grassy surface, was an unreasonably dangerous condition.

Like windowless doors in common areas, residential play structures set on grass are common. The

playset was a common play structure with swings, two slides, and ladders. It was designed for

young children, and it did not pose the sort of risks inherent in the Jacob’s ladder, which had a 90-

percent fall rate. Although plaintiff faults the Talan defendants for not mounting the play structure

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on a cushioning material, the inquiry is not whether there are other more optimal surfaces on which

such a play structure can be mounted, but whether mounting the structure on a grassy surface

rendered the structure unreasonably dangerous. Children routinely play on such structures in

residential grass yards without injury. In fact, there is no evidence that a child sustained an injury

in the six years between its installation and AK’s fall. Plaintiff emphasizes that the playset was

seven feet high at its highest point, but AK did not fall from the highest point. The occurrence of

AK’s unusual fall does not prove that the structure was unreasonably dangerous.

Under Kandil-Elsayed, whether a hazard is open and obvious is relevant to assessing the

parties’ comparative negligence. But because there is no genuine issue of fact whether the playset

on the Talan defendants’ grassy property was unreasonably dangerous in the first instance, it is

unnecessary to further consider whether the alleged hazard—a grassy surface—was open and

obvious, or whether the Talan defendants should have anticipated that AK would be harmed,

despite the open and obvious nature of that condition. Accordingly, we affirm the dismissal of

plaintiffs’ premises liability claim against the Talan defendants.

B. NEGLIGENT SUPERVISION

Plaintiff argues that the Talan defendants may be liable for negligent supervision because

they undertook the duty to supervise the children at their daughter’s party. We disagree.

In the context of a claim for ordinary negligence, property owners do not have a duty to

supervise minor children of guests on their property. Ji Liang, 328 Mich App at 311. In

Stopczynski v Woodcox, 258 Mich App 226, 232, 236; 671 NW2d 119 (2003), this Court adopted

the reasoning in the dissenting opinion in Pigeon v Radloff, 215 Mich App 438; 546 NW2d 655

(1996), a case having no precedential force or effect pursuant to our Supreme Court’s prior order

in Pigeon v Allied Pools & Spas, 451 Mich 885 (1996). The adopted analysis states:

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 not 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. [Stopczynski,

258 Mich App at 236, quoting Pigeon, 215 Mich App at 449-450 (SAWYER, P.J.,

dissenting).]

In this case, AK’s mother was present at the birthday party when AK fell off the slide.

Therefore, the Talan defendants did not have a duty to supervise AK at the party and cannot be

held liable for any negligent supervision.

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C. GROSS NEGLIGENCE AND WILFUL AND WANTON CONDUCT

Next, plaintiff asserts that the Talan defendants’ conduct rose to the level of gross

negligence, and therefore, the trial court erred by dismissing her gross-negligence claim. We

disagree.

The rule that property owners have no duty to supervise their guests’ minor children

“applies only to claims of ordinary negligence.” Ji Liang, 328 Mich App at 311. This statement

was made to contrast claims of ordinary negligence from premises liability claims, but it also

suggests that property owners may be liable for injuries to their guests’ minor children if the

owners’ conduct rises to a level of gross negligence or wilful and wanton conduct. In Woodman

v Kera, LLC, 280 Mich App 125, 152; 760 NW2d 641 (2008), aff’d 486 Mich 228 (2010), the

plaintiff, a child, was injured when he jumped from an inflatable slide at the defendant’s “bounce

party” facility. Id. at 127. The plaintiff, through his mother and next friend, filed a complaint

against the defendant, asserting claims of negligence, gross negligence, and violation of the

Michigan Consumer Protection Act, MCL 445.901 et seq. The defendant argued that it had no

duty to supervise the plaintiff because his parents were present in the facility when he was injured.

Id. at 130. This Court tacitly acknowledged that gross negligence, defined as “conduct that is so

reckless that it demonstrates a substantial lack of concern for whether an injury results,” could be

a permissible theory of recovery for the defendant’s failure to supervise children whose parents

were present. Id. at 152, 156-157 (BANDSTRA, P.J., concurring), 161 (SCHUETTE, J., concurring).

However, this Court agreed that dismissal of the plaintiff’s gross negligence claim was appropriate

under MCR 2.116(C)(10) because the defendant’s staff “did undertake certain steps or precautions

to prevent injury.” Thus, the plaintiff failed to demonstrate “that defendant possessed a substantial

lack of concern for the minor child’s safety or well-being.”3 Id. at 152-153.

Plaintiff argues that jurors could infer that Trudy Talan substantially disregarded the

hazards of the playset from her statements, “Isn’t it obvious that there is going to be water and

there’s going to be slides?” and “If parents felt it was dangerous, they should not have come.” We

disagree that these statements, viewed most favorably to plaintiff, support an inference that the

Talan defendants were so reckless as to demonstrate a substantial lack of concern for whether a

child would be injured on the playset. It is apparent that Trudy was merely pointing out that AK’s

parents and other guests’ parents knew about the activities at the party and suggesting that they

did not regard them as unreasonably dangerous. Plaintiff has not demonstrated that the Talan

defendants had any special knowledge or concealed any information involving the safety of the

play structure. Indeed, AK’s mother could see for herself the height of the playset and the grassy

lawn on which it was set and apparently saw no need to prevent her from playing on the structure.

And as explained earlier, the structure was placed on a grassy surface, like many other common

residential play structures, and there was no evidence that any other child had sustained an injury

in the six years between its installation and AK’s fall. Reasonable jurors could not find that

3

Our Supreme Court affirmed this Court’s conclusion that the parent’s preinjury liability waiver

was unenforceable because it was not binding on the child plaintiff, but it did not disturb this

Court’s analysis of the gross-negligence issue. Woodman v Kera LLC, 486 Mich 228; 785 NW2d

1 (2010).

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allowing AK and other children to play on the play structure during the birthday party, even while

also using the hot tub, demonstrated a substantial lack of concern for the young guests’ safety.

Plaintiff cites Taylor, 241 Mich App 449, in support of her argument that the Talan

defendants engaged in “wilful and wanton” conduct. In Taylor, this Court held that “a social host

is under no duty to make a premises safe for a guest other than to warn the guest of concealed

defects that are known to the owner and to refrain from wilful and wanton misconduct that injures

the guest.” Id. at 455-456. The Court concluded that “a social host has a duty to control guests,

but only to the extent that the host refrain from wilful and wanton misconduct that results in one

guest injuring another guest.” Id. at 457. The elements for wilful and wanton misconduct are as

follows:

(1) knowledge of a situation requiring the exercise of ordinary care and diligence

to avert injury to another, (2) ability to avoid the resulting harm by ordinary care

and diligence in the use of the means at hand, and (3) the omission to use such care

and diligence to avert the threatened danger, when to the ordinary mind it must be

apparent that the result is likely to prove disastrous to another. [Taylor, 241 Mich

App at 457, quoting Miller v Inglis, 223 Mich App 159, 166; 567 NW2d 253

(1997).]

These elements do not directly apply to this case because AK’s injury was not caused by another

guest’s behavior. Furthermore, for the same reasons discussed earlier, the evidence does not

support an inference that allowing AK and other children to play on the play structure during the

birthday party was “likely to prove disastrous.” The Talan defendants had no reason to expect that

serious harm would result from the children’s ordinary use of the playset mounted on grass.

D. NUISANCE

Finally, as explained earlier, plaintiff cannot establish that the play structure constitutes

either a private or public nuisance. Therefore, plaintiff’s nuisance claims against the Talan

defendants were also properly dismissed.

Affirmed.

/s/ Anica Letica

/s/ Christopher M. Murray

/s/ Sima G. Patel

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