Merritt v. Nickelson

• Decision Date: 01 February 1980
• Docket Number: No. 13,No. 60940,60940,13
• Parties: Frances MERRITT, Administrator of the Estate of Alan William Merritt, Plaintiff-Appellant, v. Howard E. NICKELSON and James Ledford, Defendants, and Marie Ledford, Defendant-Appellee. DocketsCalendar407 Mich. 544, 287 N.W.2d 178
• Court: Michigan Supreme Court

Page 178

287 N.W.2d 178

Frances MERRITT, Administrator of the Estate of Alan William

Merritt, Plaintiff-Appellant, v. Howard E. NICKELSON and James Ledford, Defendants, and Marie Ledford, Defendant-Appellee.

Dockets No. 60940.

Calendar No. 13.

407 Mich. 544, 287 N.W.2d 178

Supreme Court of Michigan.

Argued Dec. 6, 1978.

Decided Feb. 1, 1980.

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

Zerafa & Zerafa, P. C. by James R. Zerafa, Elk Rapids, for defendant-appellee.

KAVANAGH, Justice.

We granted leave to appeal in this case to determine "whether a co-owner of land on which a drag-strip race track is operated by the other co-owner is responsible for injuries occurring on that land to a spectator of the races." We hold that such co-owner is not, and affirm the Court of Appeals.

Prior to May 6, 1970, defendant Marie Ledford was the sole owner of approximately 25 acres of land. On that day she executed a quitclaim deed to the property to herself and her son, defendant James Ledford, as tenants in common. The consideration recited was $500. For some time James Ledford had been planning to operate a race track on the property.

On the day the race track opened, May 30, 1970, the flywheel on a car driven by defendant Howard Nickelson exploded, throwing steel fragments into the crowd. Plaintiff Alan Merritt, a spectator, was struck and killed by one of the fragments.

Plaintiff, administratrix of Alan Merritt's estate, brought suit for wrongful death against Nickelson and Marie and James Ledford. Nickelson's insurance company settled the claim on his behalf for $8,500 and the cause continued to trial against the Ledfords.

The basis for plaintiff's complaint against the Ledfords was that as owners and operators of the race track, they were negligent in failing to make a safety inspection of the cars and in failing to require that the cars be equipped with a scatter shield for the flywheel, pursuant to the recommendations of the National Hot Rod Association.

The trial court, sitting without a jury, gave judgment for plaintiff against both defendants Ledford for $137,000.

Marie Ledford appealed, arguing that she was not negligent and that there was no basis upon which her son's negligence could be imputed to her. Although she did not testify at trial, the record reveals that James Ledford was the sole owner and proprietor of the business. He testified that his mother neither invested money in the business, participated in its formation or operation, nor shared in its profits. Plaintiff offered no evidence to contradict this testimony.

The Court of Appeals reversed judgment against Marie Ledford, holding that mere co-ownership in land, without a showing of possession or control, was an insufficient basis upon which to impose liability for the defective condition of the premises. Merritt v. Nickelson, 80 Mich.App. 663, 264 N.W.2d 89 (1978).

As a business invitee on the property, Alan Merritt had the right to expect that the premises would be maintained and the business conducted in a reasonably safe manner. Quinlivan v. Great Atlantic & Pacific Tea Co., Inc., 395 Mich. 244, 235 N.W.2d 732 (1975); McIntyre v. Pfaudler Vacuum Fermentation Co., 133 Mich. 552, 95 N.W. 527 (1903). This duty of care was owed to him both by the invitor who solicited his business and by the possessors of the premises. See, E. g., Bluemer v. Saginaw Central Oil & Gas Service, Inc., 356 Mich. 399, 408, 97 N.W.2d 90 (1959).

Invitors are liable for known dangerous conditions of property and for dangerous conditions which might be discovered with reasonable care, regardless of whether they have legal title or control over the premises. District of Columbia v. Thomas, 130 U.S.App.D.C. 365, 367, 401 F.2d 430, 432 (1968); Danisan v. Cardinal Grocery Stores, Inc., 155 Cal.App.2d 833, 318 P.2d 681 (1957). From this record it does not appear that Marie Ledford was an invitor. James Ledford, as sole operator of the business, expected to derive an economic benefit from the public's presence, and he alone impliedly warranted the premises' safe condition in his invitation. Prosser, Torts (4th ed.), § 61, pp. 386, 388.

Plaintiff asserts, however, that Marie Ledford is jointly liable for her son's negligent acts because she was the co-owner of the property on which he, the invitor, conducted his business.

We disagree.

Premises liability is conditioned upon the presence of both possession and control over the land. This is so because

"(T)he man in possession is in a position of control, and normally best able to prevent any harm to others." Prosser, Supra, § 57, p. 351.

Michigan has consistently applied this principle in imposing liability for defective premises. Quinlivan, supra, 395 Mich. 267, 235 N.W.2d 732; Bluemer, supra, 356 Mich. 408, 97 N.W.2d 20; Nezworski v. Mazanec, 301 Mich. 43, 56, 2 N.W.2d 912 (1942) (landlord-tenant cases); Bauer v. Saginaw County Agricultural Society, 349 Mich. 616, 623, 84 N.W.2d 827 (1957) (amusement park/concessionaire case); Dombrowski v. Gorecki, 291 Mich. 678, 681, 289 N.W. 293 (1939) (tenancy by entireties case).

Our application of this principle is in accordance with the Restatement of Torts. The Restatement imposes liability for injuries occurring to trespassers, licensees, and invitees upon those who are "possessors" of the land. 2 Restatement Torts, 2d §§ 333-350, pp. 183-233. A "possessor" is defined as:

"(a) a person who is in occupation of the land with intent to control it or

"(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or "(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b)." Id., § 328 E, p. 170.

Ownership alone is not dispositive. Possession and control are certainly incidents of title ownership, but these possessory rights can be "loaned" to another, thereby conferring the duty to make the premises safe while simultaneously absolving oneself of responsibility. Quinlivan, supra, 395 Mich. 269, 235 N.W.2d 732.

The mere fact that Marie Ledford was a tenant in common with her son did not place her in occupancy of the land with the intent of controlling it. As a tenant in common, she was entitled to enter upon every part of the land and to occupy and enjoy the whole, DesRoches v. McCrary, 315 Mich. 611, 24 N.W.2d 511 (1946); it does not appear here that she chose to do so. Her freehold was separate and distinct from that of her son. His occupancy of the land was under his own right, not hers. Everts v. Beach, 31 Mich. 136 (1875). He was not her agent by the mere fact of their joint ownership nor were the acts performed by him transformed into a joint venture. 20 Am.Jur.2d, Cotenancy and Joint Ownership, § 2, p. 93.

Plaintiff argues that the obligation to keep one's premises reasonably safe for use of business visitors is a liability that an owner may not avoid. She cites fairground and amusement park cases where owners of property were held liable for the negligent acts of concessionaires or third parties whom the owners allowed to use the premises. She asserts:

"There is no reason to believe that a non-operating co-owner of land should be relieved from liability for the negligent condition and operation carried on by the active co-owner when a non-operating sole owner is not relieved from liability for a condition or activity carried out on the owner's premises by an independent third party." (Brief of Appellant, p. 11).

This misperceives the issue. Again, it is the unity of possession and control that is dispositive. A "possessor" of property must exercise reasonable care in avoiding harm to others on his property from the negligent acts of third persons Because he is in possession and control of the premises and in a position to exercise the power of control or expulsion. Prosser, Supra, § 61, p. 395. See, also, 2 Restatement, Supra, § 344, p. 223; § 383, p. 287. In no case cited by plaintiff did the owner of the property give up control of the premises. ¹

When one co-owner of land cedes possession and control of the premises to her co-owners, the law is satisfied to look to those co-owners actually in control for liability for injuries to third persons. The record in the present case does not establish that Marie Ledford exercised her right to possession and control over the property. Insofar as James Ledford became the sole "possessor" of the land within the meaning of the Restatement, Supra, he alone owed a duty of care to the invitees who entered the premises. Id., § 344, p. 223; § 341 A, p. 209.

We find the Court of Appeals' disposition of this case appropriate. Accordingly, we remand this cause to the trial court for the disposition set forth at 80 Mich.App. 668-669, 264 N.W.2d 89.

Affirmed.

FITZGERALD, C. J., and RYAN, COLEMAN and LEVIN, JJ., concur.

MOODY, Justice (concurring in the result).

I concur with the result reached by Justice Kavanagh. This matter should be remanded to the trial court to permit plaintiff to present evidence of defendant Marie Ledford's involvement and participation in the establishment and operation of the dragstrip. I write separately to delineate certain classic principles of real property law which are applicable to this case and to outline certain essential elements which should be considered on remand.

I

This case presents a unique, hybrid situation. We are asked to determine the effect of tortious activity upon the relationship of two persons who own property as tenants in common. Any analysis, therefore, must focus on the exact nature of the relationship of those who hold land as tenants in common.

Tenancy in common as distinguished from other types of concurrent ownership, such as joint tenancy or tenancy by the entireties, is a type of co-ownership whereby each of the cotenants has a separate and distinct interest in property; but the right...