Paisley v. United Parcel Service, Inc.

• Decision Date: 24 June 1969
• Docket Number: No. 2,Docket No. 5604,2
• Parties: Richard L. PAISLEY and Lillian Paisley, as Guardian of Mary Paisley, a Minor, Plaintiffs, v. UNITED PARCEL SERVICE, INC., an Ohio corporation, Defendant and Third-Party Plaintiff-Appellant, v. GULF OIL CORPORATION and Carleton Holtz, Third-Party Defendants, and Revco, Inc., Third-Party Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 283

170 N.W.2d 283

17 Mich.App. 672

Richard L. PAISLEY and Lillian Paisley, as Guardian of Mary

Paisley, a Minor, Plaintiffs, v. UNITED PARCEL SERVICE, INC., an Ohio corporation, Defendant and Third-Party Plaintiff-Appellant, v. GULF OIL CORPORATION and Carleton Holtz, Third-Party Defendants, and Revco, Inc., Third-Party Defendant-Appellee.

Docket No. 5604.

Court of Appeals of Michigan, Division No. 2.

June 24, 1969.

Released for Publication Sept. 16, 1969.

Reginald S. Johnson, Johnson, Campbell & Moesta, Detroit, for appellant.

Andrew F. Valenti, Detroit, for appellee.

L. J. Hammond, Adrian, for plaintiffs Paisley in lower court.

William J. Marcoux, Jackson, for Gilf Oil Corp.

Lawrence L. Bullen, Jackson, for Carleton Holtz.

Before HOLBROOK, P.J., and BRONSON and McGREGOR, JJ.

PER CURIAM.

Plaintiffs brought this suit in behalf of their minor daughter for damages resulting from injury sustained by the minor daughter as the result of being struck by a truck owned by the Defendant Parcel service. The accident occurred on property owned by Gulf Oil, at the rear of a store leased by Revco. United Parcel subsequently filed a third-party complaint against the owner and operator of the gas station, Gulf Oil and Carleton Holtz, respectively, and against Revco.

Defendant United Parcel contends that, although the accident occurred on Gulf Oil property, the property was being used at that time of the use and benefit of Revco, which consequently, owned a duty to the minor plaintiff to safeguard, enclose and police the area and to prohibit small children from being on the premises.

Revco's motion for summary judgment was based on the ground that since it had no possession or right to control of the Gulf Oil property, it owed no such duty to the minor plaintiff. The trial court ordered that the motion for summary judgment be granted and a judgment entered in favor of the third-party defendant, Revco. Such motion for summary judgment was properly granted in favor of the third-party defendant.

Liability for injuries 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 (1939), 291 Mich. 678, 289 N.W. 293; Nezworski v. Mazanec (1942), 301 Mich. 43, 2 N.W.2d 912. Appellant has failed to show this Court any proprietary interest or right to control possessed by Revco in the property where the accident occurred.

The grounds for relief...