Stevens v. Drekich

• Decision Date: 16 August 1989
• Docket Number: Docket No. 93136
• Citation: 178 Mich.App. 273,443 N.W.2d 401
• Parties: Michael P. STEVENS, by his Next Friend, Gail R. Stevens, Plaintiff-Appellant, and Gail R. Stevens and Scot Stevens, individually, Plaintiff/Counter-Defendants-Appellants, v. Daniel G. DREKICH and Janet Drekich, Defendants-Appellees, and Lee Fossati and Carol Ann Haun, Defendants/Cross-Defendants, and City of Detroit, a municipal corporation, Defendant/Cross-Plaintiff/Counter-Plaintiff. 178 Mich.App. 273, 443 N.W.2d 401
• Court: Court of Appeal of Michigan — District of US

Page 401

443 N.W.2d 401

Michael P. STEVENS, by his Next Friend, Gail R. Stevens,

Plaintiff-Appellant, and Gail R. Stevens and Scot Stevens, individually, Plaintiff/Counter-Defendants-Appellants, v. Daniel G. DREKICH and Janet Drekich, Defendants-Appellees, and Lee Fossati and Carol Ann Haun,

Defendants/Cross-Defendants,

and

City of Detroit, a municipal corporation,

Defendant/Cross-Plaintiff/Counter-Plaintiff.

Docket No. 93136.

178 Mich.App. 273, 443 N.W.2d 401

Court of Appeals of Michigan.

Submitted Oct. 8, 1987.

Decided March 15, 1989.

Released for Publication Aug. 16, 1989.

[178 MICHAPP 275] Johnson, Shefferly, McCarroll & Moesta, P.C. by Francis A. McCarroll, Detroit, for plaintiffs-appellants.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton by Michael L. Updike, Farmington Hills, for defendants-appellees.

Before HOLBROOK, P.J., and SHEPHERD and SULLIVAN, ^* JJ.

PER CURIAM.

In this action for personal injuries sustained in a vehicular accident, the circuit court ruled that defendants Daniel G. and Janet Drekich, the owners of land situated adjacent to the scene of the accident giving rise to this suit, had no duty to take precautions so that a tree located in the grassy area between the street curb and the sidewalk, or the berm, would not obstruct a motorist's view of a yield sign. We affirm summary disposition in favor of defendants.

In their complaint, plaintiffs alleged that Michael P. Stevens, the minor on whose behalf suit was brought, was a passenger of a motorcycle that collided with a vehicle at or near the intersection of Windsor and Berkshire Road in the City of Detroit on June 2, 1984. In Count III, liability against the Drekich defendants ¹ was premised upon their alleged conduct in "planting, growing, maintaining, and allowing to exist on [their] property," "a tree to grow so that it effectively blocked, hid, partially hid, or otherwise obstructed the view [178 MICHAPP 276] of travellers [sic ] on eastbound Windsor to see that there was a 'yield' sign at their intersection."

By affidavit, defendants established that the berm was six feet in width, measured from the curb to the sidewalk. The tree was situated about four feet from the curb and about two feet from the sidewalk. The street itself was thirty feet in width. The Drekiches averred that they had resided there since December 15, 1981, that the trees in the berm were present at the time that they assumed residence, and that they had not planted, fertilized, or otherwise cared for the trees. These averments were uncontroverted.

Under the principles of premises liability, the right to recover for a condition or defect of land or for an activity conducted on the land requires that the defendant have legal possession and control of the premises. The defendant's duty ends at the boundary of his premises. Rodriguez v. Detroit Sportsmen's Congress, 159 Mich.App. 265, 406 N.W.2d 207 (1987), lv. den., 428 Mich. 905 (1987); Swartz v. Huffmaster Alarms Systems, Inc., 145 Mich.App. 431, 437, 377 N.W.2d 393 (1985). Cf. Langen v. Rushton, 138 Mich.App. 672, 360 N.W.2d 270 (1984), lv. den., 422 Mich. 967 (1985). In keeping with this principle, defendants contend that liability may not be imposed upon them because the tree allegedly causing the accident was located in a public right-of-way abutting their home. We agree. The right-of-way in favor of the public resulting from the establishment of a public highway is presumed to be sixty-six feet in width. Eyde Brothers Development Co. v. Eaton County Drain Comm'r, 427 Mich. 271, 297-299, 398 N.W.2d 297 (1986); Rigoni v. Michigan Power Co., 131 Mich.App. 336, 343-348, 345 N.W.2d 918 (1984), M.C.L. Sec. 221.20; M.S.A. Sec. 9.21. Given that the tree was located about nineteen feet from the center of Windsor, it [178 MICHAPP 277] clearly fell within the sixty-six-foot width. Plaintiffs concede the location of the tree within a right-of-way, but argue that defendants retain sufficient reversionary and incidental property rights to the berm to render them responsible under the principles of premises liability. We conclude that, whatever residual rights to a public right-of-way are retained by an adjacent landowner, they are not possessory in nature, thus precluding plaintiffs' cause of action against defendants. See Berman v. LaRose, 16 Mich.App. 55, 167 N.W.2d 471 (1969). See also Eyde Brothers Development Co., supra.

Plaintiffs also argue that, even if the berm was outside the scope of defendants' legal possession, defendants' maintenance of the tree was negligent without reference to premises liability principles. This theory of recovery finds support in Berman, supra, 16 Mich.App. p. 57, 167 N.W.2d 471, which acknowledged that a landowner may be liable for conditions in an adjacent area if he has physically intruded into the area or has committed some act which increased the existing hazards or created new hazards. The underlying premise is that the defendant has exercised control over land beyond his boundaries. Rodriguez, supra, 159 Mich.App. p. 271, 406 N.W.2d 207. See also Hughes v. Detroit, 336 Mich. 457, 466-467, 58 N.W.2d 144 (1953). Since, however, the uncontroverted affidavits here establish that defendants took no affirmative acts with respect to the planting or maintenance of the tree, we conclude that tort liability may not be predicated upon negligent conduct independent of premises liability theory.

Plaintiffs argue that Count III of the complaint states a legally adequate claim based...