Premises Liability
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Chapter 9: Premises Liability
Scott L. Feuer, Novara Tesija Catenacci McDonald & Baas PLLC
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CONTENTS
Determination of Legal Status
Causes of Action
Special Circumstances

I.   Overview

§9.1   Premises liability cases are like other negligence cases in that the plaintiff must prove the following elements: (1) a duty owed to the plaintiff by the defendant, (2) a breach of that duty, (3) an injury proximately resulting from that breach, and (4) damages. Moning v Alfono, 400 Mich 425, 437, 254 NW2d 759 (1977). As with negligence cases generally, duty is a question for the court to decide. The jury decides the facts. Id. at 438; see also Rodis v Herman Kiefer Hosp, 142 Mich App 425, 370 NW2d 18 (1985).

Although the possessor has a duty to act with reasonable care, the measure of what is considered reasonable care varies based on the extent to which the relationship benefits the possessor. In other words, the plaintiff’s status as an invitee, a licensee, or a trespasser determines what level of care is owed. Swartz v Huffmaster Alarms Sys, Inc, 145 Mich App 431, 377 NW2d 393 (1985). Each of these terms has a special meaning in the law. A plaintiff’s status may also change if they move from one area of the premises to another. Constantineau v DCI Food Equip, Inc, 195 Mich App 511, 491 NW2d 262 (1992).

Generally, possessors of land owe invitees a duty to exercise ordinary care and prudence to keep their premises in a reasonably safe condition for the invitees’ use. Such a level of care generally includes a duty to maintain, warn, and inspect. Kroll v Katz, 374 Mich 364, 132 NW2d 27 (1965); Douglas v Elba, Inc, 184 Mich App 160, 457 NW2d 117 (1990). Possessors of land owe licensees a duty to use ordinary care to prevent injury arising from the defendants’ active negligence. Draper v Switous, 370 Mich 468, 122 NW2d 698 (1963). Under most circumstances, landowners have no duty to keep their premises safe for trespassers. Kreski v Modern Wholesale Elec Supply Co, 429 Mich 347, 415 NW2d 178 (1987); Polston v SS Kresge Co, 324 Mich 575, 37 NW2d 638 (1949); Ryan v Towar, 128 Mich 463, 87 NW 644 (1901).

As a general rule, for purposes of premises liability law, a defendant’s duty ends with the boundaries of the premises, and the defendant is not legally responsible for an injury caused by a dangerous condition outside those boundaries. Ward v Frank’s Nursery & Crafts, Inc, 186 Mich App 120, 463 NW2d 442 (1990); Swartz. However, this general rule may yield when a person is injured outside the defendant’s premises as a result of (1) a dangerous condition existing on the defendant’s premises, (2) the defendant’s physical intrusion on the adjacent property, or (3) affirmative acts of the defendant that increase an existing hazard or create a new one on those adjacent premises. Ward; Swartz; see also DeMare v Woodbridge 1985, 182 Mich App 356, 451 NW2d 871 (1990).

See Michigan Causes of Action Formbook ch 5 (Kaitlin A. Brown et al eds, ICLE 2d ed) for a complaint-drafting checklist and sample complaint for a premises liability action.

II.   Possession and Control

§9.2   The only proper party defendant in a premises liability case is the entity that had possession and control over the property; ownership is not dispositive. Orel v Uni-Rak Sales Co, 454 Mich 564, 563 NW2d 241 (1997). See also Finazzo v Fire Equip Co, 323 Mich App 620, 918 NW2d 200 (2018), which held that a party need not own the premises but must have both “possession and control” over them for liability purposes. The relevant question is whether injury was caused as a result of a condition on the land. If it was, the case is one of premises liability and a plaintiff fails to state a valid claim against a defendant that did not have both possession and control.

In Orel, plaintiff slipped and fell on ice while working at a job site on the property of Uni-Rak, which operated a small factory. A fire had shut down the facility previously. Plaintiff’s employer, a fire repair company, was hired to perform the repair and reconstruction work. Plaintiff sued the property owner, Uni-Rak, for his injuries.

Because there was a dispute about what entity had possession and control of the premises at the time of plaintiff’s injury, the trial court read M Civ JI 19.02 to the jury. That jury instruction is appropriate if there is a dispute about who is in possession and control. After a jury verdict in favor of defendant, plaintiff appealed, claiming that the trial court erred by giving this jury instruction because the evidence was clear that defendant Uni-Rak was a possessory landowner at the time of the incident. The court of appeals reversed in an unpublished opinion.

The supreme court reversed the court of appeals and affirmed the trial court. The court held that the issue of who had possession and control of the property at the time of the incident was one for the jury, and in Orel this issue was hotly contested. Defendant Uni-Rak presented evidence that plaintiff’s employer had completely taken over possession and control of the parking lot in question.

Similarly, in Kubczak v Chemical Bank & Tr Co, 456 Mich 653, 575 NW2d 745 (1998), the supreme court adhered to the rule that the only proper party defendant is the entity that had both possession and control over the property at the time of the accident. In Kubczak, defendant bank had foreclosed on the property pursuant to a default on a mortgage. During the six-month redemption period, plaintiff, a real estate agent, slipped and fell while showing the home to a prospective purchaser.

Although the bank had a theoretical impending right of possession, on the day of the accident it exercised no dominion or control over the property. Under mortgage law, the bank was not entitled to possession of the premises until after the six-month redemption period had run. The court explained that the purpose behind the general rule was that the entity that had the power to prevent the injury and failed to prevent the injury should be the entity that is held liable. Once again, the court stated that liability for negligence does not depend on legal title; rather, the test is possession and control. Id. at 662. Accordingly, the court held that the bank did not have a duty to maintain the premises.

In a similar case, Anderson v Wiegand, 223 Mich App 549, 567 NW2d 452 (1997), plaintiff slipped and fell on ice while attending an open house conducted by the property owners’ real estate agent. The property owners left the key with the agent and were gone at the time of the accident. In fact, the real estate agent had requested that the property owners not be home at the time of the open house. Plaintiff sued the homeowners, the real estate agent, and the real estate agency. The trial court granted summary disposition for all defendants. The court of appeals held that summary disposition was proper for the homeowners but was improper for the real estate agent and his agency. The court found that the homeowners ceded possession and control of the premises to the real estate agent for the purpose of conducting an open house. It therefore held that the real estate agent and his agency were the only proper party defendants because they had taken over possession and control of the premises. Id. at 556.

In Schneider v Nectarine Ballroom  (On Remand), 204 Mich App 1, 514 NW2d 486 (1994), the court considered whether defendant bar owed a duty to plaintiff for injuries sustained off the premises. Plaintiff was injured as a result of an altercation that began inside the bar. The other participants in the fight were ejected from the bar by the bouncer, who then pushed plaintiff out of the bar, allegedly into the arms of his assailants. The assailants dragged plaintiff to the curb and beat him. The trial court granted summary disposition in favor of the bar, finding that it had no duty to plaintiff regarding the injuries sustained off the premises. The court of appeals reversed. Accepting plaintiff’s allegations as true for purposes of the motion for summary disposition, the court held that the injuries plaintiff sustained should have been reasonably foreseeable to defendant bar and could have been avoided without much difficulty. Of course, the facts of Schneider are unusual and unique. Consequently, it has little precedential value.

In Sholberg v Truman, 496 Mich 1, 852 NW2d 89 (2014), the supreme court held that title owners of real property cannot be held liable for a public nuisance arising from that property in a circumstance where someone other than the title owners (1) is in possession of the property, (2) is exercising control over the property, and (3) is the one who created the alleged nuisance. The supreme court reversed the court of appeals holding to the contrary and reinstated the trial court’s order granting summary disposition for defendant.

When the premises is in the possession and control of a governmental entity, special rules apply. In Hoffner v Lanctoe, 290 Mich App 449, 802 NW2d 648 (2010), rev’d on other grounds, 492 Mich 450, 821 NW2d 88 (2012), the court of appeals found that the lease agreement and the actions and intent of the parties demonstrated that defendant landlords were responsible for the exterior areas of the exercise facility’s premises, including snow removal. The tenants were not proper defendants because they did not have possession and control of the sidewalk outside of the exercise facility, and the trial court erred in denying them summary disposition. Similarly, in Morelli v City of Madison Heights, 315 Mich App 699, 890 NW2d 878 (2016), the court held that individual defendant owed no legal duty to plaintiff because he did not have possession and control over the berm on which plaintiff fell into a hole. The court found that per a city ordinance, the berm was part of a public right-of-way. Although defendant city delegated responsibility to maintain the grass, it retained an easement over the right-of-way and thus had a duty to keep it in a safe condition. See chapter 15 for a discussion of governmental liability and immunity.

Footnotes

1 The author acknowledges the Honorable Victoria Roberts for her original work on this topic published in Torts: Michigan Law and Practice (Linda Miller Atkinson & Katharine B. Soper eds, ICLE 1992).


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