Sholberg v. Truman

Decision Date10 June 2014
Docket NumberDocket No. 146725.
Citation852 N.W.2d 89,496 Mich. 1
PartiesSholberg v. TRUMAN.
CourtMichigan Supreme Court


Abood Law Firm, East Lansing (by Andrew P. Abood) for Diane K. Sholberg.

Cardelli Lanfear PC, Grand Rapids (by Anthony F. Caffrey III, R. Carl Lanfear, and Paul M. Kittinger) for Robert and Marilyn Truman.

Swistak & Levine, PC, Farmington Hills (by I. Matthew Miller), for the Property Management Association of Michigan, the Detroit Metropolitan Apartment Association, the Property Management Association of West Michigan, the Property Management Association of Mid–Michigan, and the Washtenaw Area Apartment Association.

Opinion of the Court


The issue in this case is whether title owners of real property may be held liable for a public nuisance that arose from that property, where someone other than the title owners is in possession of the property, is exercising control over the property, and is the one who created the alleged nuisance. We hold that title owners of the real property cannot be held liable for a public nuisance under such circumstances. Therefore, we reverse that portion of the Court of Appeals' judgment that held to the contrary and reinstate the trial court's order granting defendants' motion for summary disposition.


In 2010, Terri Sholberg while driving her car hit a horse that was standing in the road and died as a result. Plaintiff, as personal representative of her estate, brought this action against Daniel Truman, the owner of the horse that had escaped from its stall on the farm,1 and his brother and sister-in-law, Robert and Marilyn Truman (defendants), the title owners of the farm operated by Daniel Truman.2 Other than being the title owners, defendants have nothing to do with the farm or with any of the animals on the farm, including the horse struck by plaintiff's decedent. Plaintiff has presented evidence of at least 30 instances of animal elopement 3 near the farm between 2003 and 2010, each of which allegedly created a hazard on the surrounding public roads.4 Marilyn Truman testified that no later than 2000, she received two or three telephone calls from people looking for Daniel Truman because his animals were loose.

A default judgment was entered against Daniel Truman. However, the trial court granted defendants' motion for summary disposition, concluding that they could not be held liable for public nuisance because they were not in possession of the property. The Court of Appeals reversed with regards to the public nuisance claim,5 holding that “the Trumans owned the Property from which the alleged nuisance arose, which is sufficient to bring a nuisance action against them.” Sholberg v. Truman, unpublished opinion per curiam of the Court of Appeals, issued November 15, 2012 ( Docket No. 307308), 2012 WL 5855045. This Court then directed that oral argument be heard on defendants' application for leave to appeal and directed the parties to address “whether, and under what circumstances, a property owner who is not in possession of the property and does not participate in the conduct creating an alleged nuisance may be liable for the alleged nuisance,” In re Sholberg Estate, 494 Mich. 867, 832 N.W.2d 199 (2013), and argument was heard on December 12, 2013.


A trial court's decision on a motion for summary disposition is reviewed de novo. Malpass v. Dep't of Treasury, 494 Mich. 237, 245, 833 N.W.2d 272 (2013). The interpretation and applicability of a common-law doctrine is also a question that is reviewed de novo. People v. Petty, 469 Mich. 108, 113, 665 N.W.2d 443 (2003).


As an initial matter, the lower courts and the parties all assumed that incidents of animal elopement can constitute a public nuisance, and thus we too will assume, without deciding, that incidents of animal elopement can constitute a public nuisance.6 “A public nuisance involves the unreasonable interference with a right common to all members of the general public.” Adkins v. Thomas Solvent Co., 440 Mich. 293, 304 n. 8, 487 N.W.2d 715 (1992). “No better definition of a public nuisance has been suggested than that of an act or omission which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty's subjects.” Garfield Twp. v. Young, 348 Mich. 337, 341–342, 82 N.W.2d 876 (1957) (quotation marks and citation omitted). “There is no doubt that nuisance is a tort....” Pohutski v. City of Allen Park, 465 Mich. 675, 685, 641 N.W.2d 219 (2002). “In general, even though a nuisance may exist, not all actors are liable for the damages stemming from the condition.” Cloverleaf Car Co. v. Phillips Petroleum Co., 213 Mich.App. 186, 191, 540 N.W.2d 297 (1995). “A defendant held liable for the nuisance must have possession or control of the land.” Wagner v. Regency Inn Corp., 186 Mich.App. 158, 163, 463 N.W.2d 450 (1990); see also Stevens v. Drekich, 178 Mich.App. 273, 278, 443 N.W.2d 401 (1989) (“It requires that the defendant liable for the nuisance have possession or control of the land.”); 19 Mich. Civ. Jur., Nuisances, § 1, p 63 (“Liability for nuisance ... requires that the defendant liable for the nuisance have possession or control of the land on which the condition exists or the activity takes place.”).

As the Court of Appeals explained in Merritt v. Nickelson, 80 Mich.App. 663, 666–667, 264 N.W.2d 89 (1978):

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.

[The] 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, at 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.), at 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.” [Citations omitted.]

This Court subsequently affirmed that decision, holding that a co-owner of land cannot be held liable where he or she has not “exercise[d] her right to possession and control over the property” because [w]hen 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.” Merritt v. Nickelson, 407 Mich. 544, 554, 287 N.W.2d 178 (1980).

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. [Id. at 552–553, 287 N.W.2d 178.]

See also Musser v. Loon Lake Shores Ass'n, 384 Mich. 616, 622, 186 N.W.2d 563 (1971) (“It is a general principle of tort law that a person is liable only as he participates in an activity giving rise to a tort. Mere co-ownership of land standing alone will not subject a person to liability for torts committed in the land by the other co-owners.”).7

In the landlord/tenant context (which bears considerable resemblance to the context we have here), this Court has made it clear that generally a landlord is not liable for a nuisance created by the tenant. As Justice Cooley explained in Samuelson v. Cleveland Iron Mining Co., 49 Mich. 164, 171, 13 N.W. 499 (1882):

It is not pretended that the mere ownership of real estate upon which there are dangers will render the owner liable to those who may receive injury in consequence. Some personal fault must be involved, or neglect of duty, before there can be a personal liability. As between landlord and tenant the party presumptively responsible for a nuisance upon the leased premises is the tenant. But this might be otherwise if the lease itself contemplated the continuance of the nuisance, for in that case the personal fault of the landlord would be plain[.] [Citations omitted.]

The question at issue in Samuelson was “whether a personal duty to guard against danger to the [iron] miners was still incumbent upon the defendant as owner of the mine, and was continuous while the mine was being worked by the contractors.” Id. at 173, 13 N.W. 499. This Court held:

Mere ownership of the mine can certainly impose no such duty. The owner may rent a mine, resigning all charge and control over it, and at the same time put off all responsibility for what may occur in it afterwards. If he transfers no nuisance with it, and provides for nothing by his lease which will expose others to danger, he will from that time have no more concern with the consequences to others than any third person. If instead of leasing he puts contractors in possession the result must be the same if there is nothing in the contract which is calculated to bring about danger. But if, on the other hand, he retains charge and control, and gives workmen a right to understand that he is caring for their safety and that they may rely upon him to guard against negligent conduct in the contractors and others, his moral accountability for their safety is as broad as it would be if he were working the...

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