Merritt v. Nickelson

• Decision Date: 05 January 1978
• Docket Number: Docket No. 77-1034
• Citation: 264 N.W.2d 89,80 Mich.App. 663
• Parties: Frances MERRITT, Administrator of the Estate of Alan William Merritt, Plaintiff-Appellee, v. Howard E. NICKELSON and James Ledford, Defendants, and Marie Ledford, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 89

264 N.W.2d 89

80 Mich.App. 663

Frances MERRITT, Administrator of the Estate of Alan William Merritt, Plaintiff-Appellee, v. Howard E. NICKELSON and James Ledford, Defendants and Marie Ledford, Defendant-Appellant.

Docket No. 77-1034.

Court of Appeals of Michigan.

Jan. 5, 1978.

Released for Publication April 6, 1978.

Zerafa, Zerafa & Christian by James R. Zerafa, Elk Rapids, for defendant-appellant.

Donald G. Jennings, Manistee, for plaintiff-appellee.

Before MAHER, P. J., and CAVANAGH and KAUFMAN, JJ.

PER CURIAM.

Defendant Marie Ledford appeals as of right from a January 26, 1976, judgment after a nonjury trial in which $137,800 in damages were awarded to plaintiff against both defendants Marie and James Ledford. The trial court found both defendants negligent in the operation of a race track which functioned primarily as a drag strip. Prior to May 6, 1970, defendant Marie Ledford was the sole owner of the land, approximately 25 acres, on which the drag strip was built. On that date she deeded the property to herself and to her son, defendant James Ledford, as tenants in common by a quitclaim deed for a consideration of $500.

On May 30, 1970, the first day that the drag strip had been opened to the public, defendant Howard Nickelson, one of the participants at the track, while racing his car, was shifting into third gear when his clutch came apart and the flywheel disintegrated. Pieces of the steel flywheel tore holes in the floorboard and roof of his car; one of the pieces was thrown through the air and injured Alan Merritt, a spectator. Merritt died from the injury.

The driver of the car, Nickelson, through his insurance company, paid the plaintiff's estate the sum of $8,500.

Plaintiff, as administratrix of Alan Merritt's estate, claimed that defendants, Marie and James Ledford, as owners and operators of the track, were negligent in failing to make a safety inspection of the cars and in not requiring that the cars be equipped with a scatter shield for the flywheel. Rules promulgated by the National Hot Rod Association recommend that cars engaged in drag racing have scatter shields to contain pieces of the flywheel in the event it disintegrates. The trial court found both defendants negligent and further held that their negligence was the cause of Mr. Merritt's death.

On appeal, defendant Marie Ledford claims that mere ownership of property by one co-tenant is not a sufficient basis on which to impose liability for the negligent acts of another co-tenant. We agree.

Nothing in the record discloses that Marie Ledford operated the drag strip: to the contrary, uncontradicted testimony at trial made it clear that Marie Ledford was in no way involved in the operation of the drag strip. She was merely, along with her son, James Ledford, a tenant in common of the property.

Tenants in common are persons who hold land or other property by unity of possession. When two or more persons are entitled to land in such a manner that they have an undivided possession, but separate and distinct freeholds, they are tenants in common. Not only is the possession of one the possession of all, but the tenants respectively have the present right to enter upon the whole land, and upon every part of it, and to occupy and enjoy the whole. Fenton v. Miller, 94 Mich. 204, 53 N.W. 957 (1892); Metcalfe v. Miller,96 Mich. 459, 56 N.W. 16 (1893); Tiffany, The Law of Real Property (3d ed), § 426, p. 212.

Ordinarily, negligence of one co-owner is not imputed to the other co-owner. Mortensen v. Knight, 81 Ariz. 325, 305 P.2d 463 (1956). The fact that one party is a tenant in common with a second party does not ipso facto render the first party liable for acts of the second party when that second party has exclusive control. McDonald v. Standard Gas Engine Co., 8 Cal.App.2d 464, 47 P.2d 777 (1935).

To argue, as plaintiff does, that a co-owner's right to possession of the premises is sufficient to hold that co-owner liable for all injuries on the premises is to be simplistic. The issue of control is preeminent.

"(T)he rights and liabilities arising out of the condition of land, and activities conducted upon it, have been concerned chiefly with the possession of the land . . . . for the obvious reason that the man in possession is in a position of control, and normally best able to prevent any harm to others." Prosser, Law of Torts (3d ed), § 57, p. 358. (Footnote omitted.)

"Possession" differs from the "right to possession" and "ownership" because of the concept of control. Possession is the detention and control of anything which may be the subject of property, for one's use and enjoyment. Blacks Law Dictionary (4th ed), p. 1325. The mere "right to possession" does not necessarily entail the control inherent in the nature of "possession".

It has been recognized in this state that control and possession are the determinative factors in the imposition of liability.

"It is a general proposition that liability for an injury due to defective premises ordinarily depends upon power to prevent the injury and therefore rests primarily upon him who has control and possession." Dombrowski v. Gorecki, ...