JOSEPH GREEN V RONALD HARRISON
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STATE OF MICHIGAN
COURT OF APPEALS
JOSEPH GREEN and JUDY GREEN,
UNPUBLISHED
October 7, 1997
Plaintiffs-Appellants,
v
No. 195092
Oakland Circuit Court
LC No. 95-492564-NO
RONALD HARRISON and FAY HARRISON,
Defendants-Appellees,
and
VICKY HARRISON and EDWARD HARRISON,
Defendants.
Before: Bandstra, P.J., and Murphy and Young, JJ.
PER CURIAM.
Plaintiffs appeal as of right from the trial court order granting defendants summary disposition.
We affirm.
Defendants Ronald and Fay Harrison owned property adjacent to plaintiffs’ residence.
Defendants rented this property to their daughter, Vicky Harrison. On the day of this incident, plaintiff
Joseph Green went to Vicky’s home to request that she turn down the volume of a radio in an
automobile located outside her home. While plaintiff was on the property, plaintiff was struck with a
beer bottle by defendants’ son Edward. Plaintiff fell to the ground, and Edward repeatedly kicked and
beat plaintiff to semi-consciousness. Plaintiff sustained severe injuries from this incident while on
defendants’ rental property.
Plaintiffs filed this lawsuit against defendants claiming negligence, premises liability, and trespass
nuisance. The complaint alleged that defendants owed plaintiffs a legal duty of care to control their
premises in a careful manner in order to avoid injury or nuisance to others. Plaintiffs contended that
because defendants lived so close to their rental property, they were surely aware of the constant noise
and disruptive conduct engaged in by their children, and they had an obligation to terminate it. Plaintiffs
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insisted that defendants’ failure to control the disturbing and illegal activity on their property caused
injury to plaintiffs that would not have occurred had they fulfilled their duty.
On appeal, plaintiffs first argue that the trial court improperly granted summary disposition on
the negligence claim because defendants owed them a legal duty to control their premises and maintain it
in an orderly and safe condition. We disagree.
Whether a legal duty exists is a question of law for the court. Schmidt v Youngs, 215 Mich
App 222, 224; 544 NW2d 743 (1996). A landlord generally owes a duty to protect tenants, and their
guests, from unreasonable risks resulting from known or foreseeable danger. Stanley v Town Square
Cooperative, 203 Mich App 143, 148-149; 512 NW2d 51 (1993). This duty includes protection
from risks from foreseeable criminal activity. Id. However, there is generally no duty to protect others
against criminal acts of a third person on the property absent a special relationship between the
defendant and the third person or the defendant and the victim. Babula v Robertson, 212 Mich App
45, 49; 536 NW2d 834 (1995); Marcelletti v Bathani, 198 Mich App 655, 664; 500 NW2d 124
(1993). A special relationship exists in several situations including, but not limited to, parent/child,
physician/patient, attorney/client, employer/employee, rescuer/victim, landlord/tenant, and owner or
occupier of land/invitee. See Murdock v Higging, 454 Mich 46, 55 n 11; 559 NW2d 639 (1997);
Phillips v Deihm, 213 Mich App 389, 398; 541 NW2d 566 (1995); Marcelletti, supra, 198 Mich
App 664. A special relationship does not ordinarily exist between a landowner and an unforeseeable
trespasser. Preston v Sleziak, 383 Mich 442, 447; 175 NW2d 759 (1970).
Michigan courts also contemplate the following policy considerations in determining whether a
legal duty exists: the foreseeability of the harm, the degree of certainty of harm, the closeness of
connection between the conduct and injury, the moral blame attached to the conduct, the policy of
preventing future harm, and the burdens and consequences of imposing a duty and the resulting liability
for breach. Babula, supra at 49. The rationale behind imposing a duty in special relationship cases is
based on control, and courts will impose such a duty only where a person’s actions directly influence
another. Marcelletti, supra at 664-665.
Assuming that Joseph Green was a trespasser,1 we find that defendants did not owe him a duty
to protect him from unknown or unforeseeable criminal acts on their property. Plaintiffs did not offer
evidence that defendants had knowledge of previous alleged violence, noise, or illegal partying occurring
on their property, giving rise to a duty on behalf of defendants to take sufficient measures to avoid harm
or danger to third persons who enter their property. Plaintiffs conceded that defendants were not
present at the time this incident occurred. Thus, other than suggesting that because defendants lived
nearby, they “should have known” of the excessive noise emanating from the home and the alleged
violent, disruptive beer parties their tenants were throwing, plaintiffs have, in fact, not alleged that
defendants were in any way involved in or apprised of this alleged misconduct that plaintiffs believe to
have caused Mr. Green’s injury. In addition, there is no evidence from which we can find that
defendants were in a position of control or influence over Edward, or plaintiffs, such that a special
relationship should be imposed. Therefore, the trial court did not err in granting summary disposition on
plaintiffs’ negligence claim.
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Plaintiffs’ premises liability claim must also fail. Premises liability is conditioned upon the
presence of both possession and control over the land. Orel v Uni-Rak Sales Co Inc, __ Mich __
(Docket No. 102971, issued June 10, 1997, slip op p 4). Ownership alone is not dispositive,
possession and control can be loaned to another, thereby conferring the duty to make the premises safe
while simultaneously absolving oneself of responsibility. Id. at 5. In this case, there is no evidence that
defendants retained control or possession. We have no reason to believe defendants did not loan
exclusive control and possession of the premises to their daughter, thereby absolving themselves of
liability.
Plaintiffs’ next argue that defendants’ liability is also premised on the trespass-nuisance theory.
Plaintiffs alleged that defendants’ tenant created a nuisance per se by allegedly smoking marijuana on the
premises and by “blasting loud and raucous music from a boom box” in the early morning hours.
Plaintiffs further alleged that defendants created a nuisance in fact by the same conduct, in conjunction
with the “constant loud music and constant traffic coming to and from the residence.” We again
disagree.
Liability under a nuisance theory is premised on “a dangerous, offensive, or hazardous condition
of the land or on activities of similar characteristics which are conducted on the land.” Wagner v
Regency Inn Corp, 186 Mich App 158, 163; 463 NW2d 450 (1990). In addition, a landowner must
have possession or control of the land to be held liable for a nuisance created on the land. Id. In
Wagner, this Court explained that a possessor of land, upon which a third person’s conduct causes a
nuisance, is subject to liability if:
(1) he knows or has reason to know that the activity is being conducted and
that it causes or involves an unreasonable risk of causing the nuisance, and (2) he
consents to the activity or fails to exercise reasonable care to prevent the nuisance. [Id.
at 163-164.]
Plaintiffs failed to allege or prove specific facts that, if believed, would establish that defendant
either created an alleged nuisance, or knew that conditions existed that caused a nuisance likely to harm
or interfere with the rights of others. Plaintiffs’ only basis for holding defendants responsible for the
alleged conduct of their tenant is their unsubstantiated conclusion that they must have known of the
alleged misconduct because of their proximity, and they allowed it to continue despite the alleged
disturbance to the neighborhood. However, plaintiffs admitted that they never informed defendants of
the disruptive and alleged illegal conduct of their tenants, nor were they aware that other neighbors put
defendants on notice of the activities. Therefore, we find that absent a suspicious circumstance, or
information leading the landowner to suspect activity on their property requiring further inquiry, there is
no basis for imputing such knowledge to defendants or imposing liability on them for the alleged
misconduct. Therefore, summary disposition in favor of defendants was proper.
Affirmed.
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/s/ Richard A. Bandstra
/s/ William B. Murphy
/s/ Robert P. Young, Jr.
1
The lower court did not rule on the legal status of plaintiff Joseph Green while he was on defendants’
property. However, during discovery, plaintiff admitted that he was not invited on the property by
defendants, or the lessees, nor was he welcome to stay on the property once he arrived. In fact,
plaintiff conceded that he was even asked to leave the premises by a guest of Vicky’s. Therefore,
based on an independent assessment of the facts and circumstances in this case, we determined that
plaintiff was a trespasser on defendants’ property at the time this incident occurred.
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