Property owners who allowed guests of their rental property to use a zip line are not entitled to summary judgment on an injured woman’s premises liability claim, the Western District of Michigan has held, reversing its prior ruling.
The court had granted summary judgment to the property owners, but the 6 th U.S. Circuit Court of Appeals vacated the ruling and remanded the case to reconsider the issues presented in Kandil-Elsayed v. F & E Oil, Inc ., a 2023 Michigan Supreme Court opinion issued after the Western District’s decision.
“[I]n Kandil-Elsayed , the Michigan Supreme Court indicated that, even where the plaintiff disregarded an open and obvious risk, that ‘potentially negligent response’ should ‘reduce [the plaintiff’s] damages, rather than cut off all recovery,’” U.S. District Judge Hala Y. Jarbou wrote. “In other words, the jury and not the Court should assess the reasonableness of the parties’ actions and their comparative fault, and then apportion liability accordingly.”
The judge added that the plaintiff did not assert a viable negligence claim apart from her premises liability claim in Wenzel v. Tremonti ( MiLW 03-107936 , 18 pages).
Ryan K. Kauffman of Fraser Trebilcock in Lansing represented the defendants, and Christopher S. Berry of Smith Haughey Rice & Roegge represented Wenzel. Neither could be reached for comment.
Zip lining on vacation
Phillip and Krista Tremonti reside in a house in Helena Township, while also owning a house on an adjacent parcel of land, which they use as a short-term rental property.
Amber Wenzel and her friends rented the house for three days in August 2020. When the group arrived, Krista showed them the rental house and property, and explained the rules. She also offered Wenzel and her friends the opportunity to use a zip line that Phillip had built at their residence. The zipline, which runs roughly 75 yards from the house to a wooden platform, was made available to all guests of the rental.
Two days later, Wenzel texted Krista to ask if the zip line had “a weight limit or anything of that sorts.” Wenzel weighed approximately 200 pounds at the time and some of her friends were “on the heavier side.”
Krista responded that Phillip said “you just have to be able to hold your own weight while holding the handle.”
Wenzel and her friends went to the Tremontis’ house. The zip line was attached to the second-floor balcony at the back of the house and its handle was a set of handlebars clipped to a trolley.
Phillip demonstrated how to use the zip line and two of Wenzel’s friends used it. While she thought it looked “pretty simple,” she hesitated because she wasn’t sure if it would hold her. To address her fears, Phillip had her test the line by hanging on it using the handlebars. He told her she’d make it to the platform “as long as you can hang on for five seconds.”
Wenzel decided to try the zip line. A video of her ride shows her gliding over the first stretch of grass, the walkway and the pond. After she made it to the second stretch of grass, her hands slipped off the handlebar and she fell to the ground, landing on her feet and breaking her ankle.
Wenzel had surgery on her ankle the day after the accident and later underwent a second surgery to correct the first surgery.
She sued the Tremontis on claims of negligence, premises liability and a violation of MCL 554.139.
The defendants moved for summary judgment.
Prior rulings
U.S. District Judge Hala Y. Jarbou of the Western District of Michigan held that the Tremontis owed Wenzel no duty of care, despite finding enough evidence to create a genuine dispute of fact as to whether Wenzel was an invitee or licensee on the Tremonti’s property.
“Here, defendants note that the dangers inherent in riding the zip line were open and obvious,” she wrote. “Indeed, as Plaintiff acknowledges, it was obvious that she had to hold onto the handlebar of the zip line for the duration of her ride (or let go and drop into the pond) in order to avoid injury. And she had seen several others ride the zip line before her, so she knew how long the ride would last. Although Phillip Tremonti assured her that she would be ‘fine,’ only she could know what she was capable of doing.”
Wenzel appealed and the Sixth Circuit vacated the ruling and remanded the case to reconsider the issues presented in Kandil-Elsayed .
Invitee or licensee?
Citing Stitt v. Holland Abundant Life Fellowship , the Tremontis stressed that the “ owner’s reason for inviting persons onto the premises is the primary consideration when determining the visitor’s status[.]” (Emphasis added.)
The Tremontis offered for the first time Krista’s deposition testimony that “the only reason” Wenzel and her friends were invited to use the zip line was because Krista thought they were “nice people,” and it would be “fun” to invite them. Thus, Krista did not invite Wenzel for a commercial purpose and the court must find that Wenzel was a licensee, not an invitee.
Jarbou disagreed, saying this testimony isn’t the only evidence of Krista’s purpose for inviting Wenzel to use the zip line.
“There is also the context in which she made the invitation (i.e., while acting as a host for her short-term rental customers) as well as her statement to Wenzel that she offered the zip line to guests in order to enhance their experience and make it a more memorable one,” the judge pointed out. “Defendants are correct that only Krista knows for certain what her motive was, but that does not mean her testimony trumps all other evidence. A jury need not, and at this stage the Court cannot , accept her testimony as true and disregard contrary evidence.”
The judge also rejected the Tremontis’ contention that, when there are no material facts in dispute, a visitor’s status is a question of law for the court to decide.
“[A]s Defendants concede, the salient issue here is the Tremontis’ purpose for inviting Wenzel to use the zip line,” Jarbou explained. “The evidence on that issue points in different directions. Consequently, a jury must decide that factual issue in order to resolve whether Wenzel was an invitee or licensee.”
Breach of duty
The Tremontis maintained that the zip line’s inherent dangers were open and obvious and there was no unreasonable risk of harm.
Jarbou, however, said summary judgment isn’t warranted here.
“ Kandil-Elsayed indicates that, because the risk of injury would have been open and obvious, Defendants should have anticipated that risk and taken reasonable actions to remove or mitigate it,” the judge wrote, adding that “a jury could conclude that Defendants would anticipate that invitees like Wenzel would fail to protect themselves from the risk of falling because they would misjudge their abilities or would not be aware of the jerking motion of the handle.”
That decision also indicated that a jury not the court should evaluate the reasonableness of the parties’ actions and their comparative fault and then assign liability accordingly, Jarbou noted.
Thus, the Tremontis are not entitled to summary judgment for Wenzel’s premises liability claim.
If you would like to comment on this story, contact Cory Linsner at clinsner@milawyersweekly.com .
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