Herrick v. Wixom

Michigan Supreme Court · Torts

TortsNegligenceTrespassersPremises liabilitydiscovered trespasserknown trespassernegligenceduty after discovery

Facts

Defendant managed a circus, and during a performance a clown ignited and exploded a giant firecracker attached to an upright pipe inside the tent. Plaintiff was sitting about 30 or 40 feet away when part of the firecracker flew into his eye and destroyed it. The evidence conflicted on whether plaintiff had been invited into the tent by defendant's son with authority to do so or had entered without right. The trial court instructed the jury that if plaintiff was a mere trespasser who forced his way in, defendant owed him no duty enabling recovery.

Issue

Whether the trial court erred by instructing the jury that plaintiff could not recover at all if he was a trespasser, even though defendant knew of plaintiff's presence when the allegedly negligent explosive act was performed.

Rule

Although a trespasser injured by a dangerous condition of premises ordinarily has no remedy, once a trespasser is discovered on the premises, the owner or occupant is not free from liability for negligence causing injury to that person. When the person's presence is known and the danger from a negligent act is also known, the duty to use due care in conducting the act does not depend on whether the person originally entered as a trespasser.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

During a summer fair in Tulsa, Nolan Pierce slipped past a rope into a restricted grandstand after the gate closed. A stage manager saw Nolan seated in the front row and, minutes later, told a performer to fire a compressed-confetti cannon toward the crowd without checking whether it was loaded safely. A metal cap struck Nolan in the face.

If Nolan sues the fair operator for negligence, which is the best answer?

Explanation. The majority rule distinguishes injuries caused by a dangerous condition of the premises from injuries caused by an affirmative negligent act after the trespasser is discovered. Once the possessor or occupant knows the person is present, the person's technical status as a trespasser does not eliminate the duty to use due care in conducting the dangerous act. Here, Nolan was seen before the cannon was fired, so trespass alone is not a complete defense. (Derived from Herrick v. Wixom (n.d.).)