Radke v. Truesdell
| Decision Date | 29 December 2022 |
| Docket Number | 359866 |
| Parties | MICHAEL RADKE and KATHLEEN RADKE, Plaintiffs-Appellants, v. CHARLES TRUESDELL, doing business as TRUESDELL INDUSTRIES, Defendant-Appellee, And RONALD SWENSON, Defendant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Ingham Circuit Court LC No. 20-000513-NO
Before: Patel, P.J., and Cameron and Letica, JJ.
In this premises liability and negligence case, plaintiffs Michael Radke and Kathleen Radke (collectively, "the Radkes") appeal as of right the order granting summary disposition to defendant, Charles Truesdell, under MCR 2.116(C)(10).[1] We affirm.
In 2019, Ronald Swenson hired general contractor Truesdell to construct Swenson's new home in Williamston, Michigan. Swenson is a hobby electrician and Truesdell agreed that Swenson could complete much of the electrical installation in the home. Michael and Swenson were long-time friends who often helped each other with home projects. On October 9 2019, when Swenson's home was under construction, Swenson invited Michael to his home to help him install light fixtures on the front porch. While there, Michael went to retrieve a wooden plank from the home's exterior. As he was walking backwards through the garage carrying the plank, he bumped into a wall, causing Michael to step backwards and fall through a large opening to the basement. Although a subcontractor was going to install stairs from the garage to the basement, he had yet to do so, and there were no barriers surrounding the opening. Michael was severely injured in the fall.
The Radkes filed this lawsuit alleging negligence against Truesdell for Michael's injuries and a derivative claim for loss of consortium on Kathleen's behalf. Truesdell moved for summary disposition under MCR 2.116(C)(10) contending that Michael's claim sounded in premises liability. He further argued that Michael could not recover under premises liability because the opening was open and obvious and Truesdell had no duty to safeguard Michael, a licensee, from this danger. Moreover, no special aspects existed which could render Truesdell liable for Michael's injuries. The trial court agreed and granted the motion for summary disposition. This appeal followed.
"This Court reviews de novo a trial court's decision on a motion for summary disposition, as well as questions of statutory interpretation and the construction and application of court rules." Dextrom v Wexford Co, 287 Mich.App. 406, 416; 789 N.W.2d 211 (2010). A motion is properly granted pursuant to MCR 2.116(C)(10) when "there is no genuine issue with respect to any material fact and the moving party is entitled to judgment as a matter of law." Id. at 415. This Court Id. at 415-416.
In presenting a motion for summary disposition, the moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence. The burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists. Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the nonmoving party may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists. If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted. [Quinto v Cross & Peters Co, 451 Mich. 358, 362-363; 547 N.W.2d 314 (1996) (citations omitted).]
The Radkes' complaint asserted a claim of ordinary negligence against Truesdell. Truesdell's motion for summary disposition alleged, in part, that the complaint sounded in premises liability rather than ordinary negligence. The trial court agreed with Truesdell, resolving the motion for summary disposition under principles of premises liability. On appeal, the Radkes challenge the trial court's conclusion regarding premises liability, arguing that their complaint was premised on a theory of ordinary negligence not premises liability. However, even under a premises liability analysis, they believe Truesdell should not have been granted summary disposition. We disagree.
A. PREMISES LIABILITY VS. ORDINARY NEGLIGENCE
We must first determine whether the trial court correctly concluded the Radkes' complaint sounded in premises liability rather than ordinary negligence. The Radkes allege their complaint sounds in ordinary negligence because it challenges Truesdell's failure to ensure the safety of visitors to the home. We disagree.
"Courts are not bound by the labels that parties attach to their claims." Buhalis v Trinity Continuing Care Servs, 296 Mich.App. 685, 691; 822 N.W.2d 254 (2012). Instead, "the gravamen of an action is determined by reading the complaint as a whole, and by looking beyond mere procedural labels to determine the exact nature of the claim." Id. at 691-692. "Michigan law distinguishes between claims arising from ordinary negligence and claims premised on a condition of the land." Id. at 692. An action sounds in premises liability "[w]hen an injury develops from a condition of the land . . . ." Woodman v Kera, LLC, 280 Mich.App. 125, 153; 760 N.W.2d 641 (2008). By contrast, "a claim of ordinary negligence is based on the underlying premise that a person has a duty to conform his or her conduct to an applicable standard of care when undertaking an activity." Jeffrey-Moise v Williamsburg Towne Houses Coop, Inc, 336 Mich.App. 616, 624; 971 N.W.2d 716 (2021).
The Radkes' complaint sounds in premises liability rather than ordinary negligence. The complaint stated Michael's injuries occurred after he "fell in a large, deep, unguarded hole created by Defendant TRUESDELL at the residential home he was constructing . . . ." According to the Radkes, Truesdell had a duty to make safe the area around the opening, and Truesdell had breached this duty by failing to install fall protection and by allowing Swenson to perform work at the home despite the presence of the opening.
The Radkes' assertion that Michael's injuries were caused by Truesdell's failure to act does not transform this case into one of ordinary negligence. See, e.g. Buhalis, 296 Mich.App. at 692 (). Michael's injuries resulted from his fall through the opening in the garage floor to the basement. An opening in the floor is a condition of the land. Thus, the Radkes' complaint sounds in premises liability because Michael's injuries were caused by a condition on the land. The trial court did not err in concluding that the complaint sounded in premises liability.
B. POSSESSION AND CONTROL
We next consider whether Truesdell had possession and control over the home at the time Michael fell. The Radkes argue Truesdell did not have possession and control over the home. Therefore, Truesdell cannot invoke certain defenses that are available in premises-liability cases. We disagree.
"Premises liability is conditioned upon the presence of both possession and control over the land" because "[t]he man in possession is in a position of control, and normally best able to prevent any harm to others." Merritt v Nickelson, 407 Mich. 544, 552; 287 N.W.2d 178 (1980) (quotation marks and citation omitted). In determining whether a party has possession and control over land, "[o]wnership alone is not dispositive." Id. at 552. "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." Id. at 552-553. This Court has previously extended possession and control to contractors, recognizing the principle set forth in the 2 Restatement Torts, 2d, § 384, p. 289, which states:
One who on behalf of the possessor of land erects a structure or creates any other condition on the land is subject to the same liability, and enjoys the same freedom from liability, as though he were the possessor of the land, for physical harm caused to others upon and outside of the land by the dangerous character of the structure or other condition while the work is in his charge. [Finazzo v Fire Equip Co, 323 Mich.App. 620, 628-629; 918 N.W.2d 200 (2018).]
In Finazzo, this Court concluded the contractor had possession and control of the premises because the contractor was "performing changes to the property by methods that were under [the contractor's] control." Id. at 629-630. As such, the contractor was in the best position to prevent harm to others. Id. at 630.
According to the Radkes, Truesdell lacked possession and control because he could not regulate who Swenson invited to the site, and he lacked the ability to manage Swenson's actions while there. However, the question of possession and control is not whether the defendant did control others' actions, but rather, who is in the best position to control others' actions. See Finazzo, 323 Mich.App. at 627 (quotation marks citation, and emphasis omitted) ("[A] party in possession is in a position of control, and [is] normally best able to prevent any harm to others."). Swenson hired Truesdell to be the general contractor. By doing so, Swenson...
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