DIANE M LANDSFELD V GRANT TRUNK WESTERN RAILROADAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
DIANE M. LANDSFELD, Personal Representative of
the Estate of FRANK JOSEPH LOCRICCHIO,
July 7, 1998
Oakland Circuit Court
LC No. 93-461885 NI
GRAND TRUNK WESTERN RAILROAD,
OAKLAND COUNTY ROAD COMMISSION and
DEPARTMENT OF TRANSPORTATION,
Before: Murphy, P.J., and Young, Jr. and M. R. Smith*, JJ.
Plaintiff appeals by right the circuit court order granting summary disposition of her nuisance
complaint. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
Plaintiff’s decedent was killed when his car was struck by a freight train. Plaintiff brought a two
count complaint alleging negligence and nuisance-in-fact. In an unpublished per curiam opinion issued
July 5, 1996, this Court affirmed the trial court’s decision granting summary disposition of plaintiff’s
negligence count, but found that defendant had failed to move for summary disposition of the nuisance
count. Landsfeld v Grand Trunk Western R, Inc (Docket No. 179888).
After remand, the circuit court granted defendant’s motion for summary disposition of the
nuisance complaint, finding that nuisance count was only a restatement of the negligence claim.
* Circuit judge, sitting on the Court of Appeals by assignment.
A nuisance in fact is a nuisance by reason of circumstances and surroundings. An act may be
found to be a nuisance in fact when its natural tendency is to create danger and inflict injury on person or
property. Wagner v Regency Inn Corp, 186 Mich App 158, 164; 463 NW2d 450 (1990). A
negligent nuisance in fact is one that is created by a violation of some duty owed to the plaintiff which
results in a nuisance. Id.
The nuisance complaint alleges that defendant was responsible for a nuisance because it failed to
equip the crossing with proper gates and warnings. However, defendant has no duty to supply these
items or to petition authorities for such equipment. Harrison v Grand Trunk Western R Co, 162 Mich
App 464, 468; 413 NW2d 429 (1987). Plaintiff failed to show that defendant breached any duty.
Summary disposition was proper where the nuisance count asserted the same allegations as the
negligence count. Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 657; 363 NW2d
/s/ William B. Murphy
/s/ Robert P. Young, Jr.
/s/ Michael R. Smith