COA affirms defense verdict in premises case.

Byline: eric.t.berkman

A Michigan Court of Appeals panel recently affirmed a jury finding that a landowner did not breach his duty of reasonable care by failing to remedy or warn his sister of a potential hazard in his backyard.

In Novotny-Moore v. O'Dell (MiLW No. 08-100448, 8 pages), an Otsego Circuit Court jury had previously determined that plaintiff Mary Novotny-Moore who was showing defendant Teddy O'Dell's backyard to a friend shortly after they purchased items at a sale he held before he moved was a licensee on her brother's property as opposed to an invitee owed a duty to make the property safe.

On appeal, a COA panel rejected the plaintiff's argument that the trial court should have deemed her an invitee as a matter of law.

"Novotny-Moore's 'main purpose of going' to O'Dell's home was to bring a friend to purchase a chest of drawers," the opinion stated. "As she is the owner's sister, however, and was otherwise permitted to freely roam O'Dell's home, the jury could reasonably determine that she was a licensee."

The panel also decided that the trial court correctly excluded evidence of a subsequent property owner's remedial measures as well as evidence of the property's conditions more than a month after the accident.

Judges Cynthia Diane Stephens, Elizabeth L. Gleicher and Mark T. Boonstra ruled unanimously in the unpublished opinion.

Defense counsel Bradley S. Bensinger of Bensinger, Cotant & Menkes PC in Gaylord said in an email that the decision helps clarify the determination of a visitor's status.

"The court followed previous findings wherein a visitor's status on land may change if he or she exceeds the scope of his or her invitation," Bensinger said. "This should assist counsel, whether they may be a plaintiff or defendant."

Plaintiff's counsel Stephen J. van Stempvoort of Miller Johnson in Grand Rapids could not be reached for comment.

The case

On March 17, 2016, defendant O'Dell was holding a sale at his home to prepare for a move to Florida.

His 76-year-old sister, Novotny-Moore, called ahead to confirm he was holding the sale and brought a friend, June Cross, to buy a set of drawers. Novotny-Moore bought a table and six chairs.

After making their purchases, Novotny-Moore wanted to show Cross the backyard.

O'Dell's concrete slab back porch was bordered by landscape timbers. When Novotny-Moore exited to the back porch and stepped on one of the timbers, it allegedly gave way, causing her to fall and hit her head, according...