KISHA STEVENS V RIGGS NATIONAL BANK
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STATE OF MICHIGAN
COURT OF APPEALS
KISHA STEVENS,
UNPUBLISHED
July 5, 2005
Plaintiff-Appellant,
v
RIGGS NATIONAL BANK OF WASHINGTON
and MULTI-EMPLOYER PROPERTY TRUST,
No. 260222
Oakland Circuit Court
LC No. 03-051653-NO
Defendants/Third-Party Plaintiffs,
and
TRAMMEL CROW COMPANY,
Defendant-Appellee,
and
VIRGINIA GLASS PRODUCTS and NEW
IMAGE BUILDING MAINTENANCE, INC.,
Defendants,
and
BLUE CARE NETWORK OF MICHIGAN,
Third-Party Defendant.
Before: Cooper, P.J., and Fort Hood and R. S. Gribbs*, JJ.
PER CURIAM.
Plaintiff Kisha Stevens appeals as of right the trial court’s order granting defendant
Trammel Crow Company’s (“Trammel”) motion for summary disposition. We affirm. This
appeal is being decided without oral argument pursuant to MCR 7.214(E).
Plaintiff worked for Blue Care Network of Michigan (“BCN”). BCN leased office space
in a building owned by Riggs National Bank (“Riggs”). Pursuant to the lease, BCN was
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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responsible for maintaining various portions of the premises, including doors in its space. A set
of double glass doors constituted the entrance to BCN’s office, and BCN’s employees used the
doors throughout the day. Trammel contracted with Riggs to perform certain management
services in the building.
Plaintiff sustained injuries when the handle of one of the glass doors broke and the door
shattered. She filed suit alleging negligence, premises liability, and breach of contract. Trammel
moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), arguing that plaintiff
failed to establish that she was a third-party beneficiary of the maintenance contract between
Trammel and Riggs, that it could not be held liable to plaintiff because it did not owe her a duty
separate and distinct from a contractual duty, and that in any event, it had no notice that the door
was defective. The trial court granted the motion, finding that no contractual relationship existed
between plaintiff and Trammel, that the lease between BCN and Riggs specified that BCN was
responsible for maintaining the doors of its suite, and that no evidence showed that Trammel had
notice that the door was defective.
We review a trial court’s decision on a motion for summary disposition de novo. Auto
Club Group Ins Co v Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2001).
Plaintiff argues that the trial court erred by granting Trammel’s motion for summary
disposition because a question of fact existed as to whether she was a third-party beneficiary of
the management contract between Trammel and Riggs. We disagree. A person for whose
benefit a promise is made via a contract has the right to enforce the promise. A person is a thirdparty beneficiary of a contract when the contract establishes that the promisor has undertaken a
promise directly to or for that person. Only intended, rather than incidental, third-party
beneficiaries may sue for breach of a contractual promise made in their favor. MCL 600.1405;
Schmalfeldt v North Pointe Ins Co, 469 Mich 422, 428; 670 NW2d 651 (2003).
However, plaintiff has cited no portion of the management contract to support her
assertion that she was an intended beneficiary of the contract. A party cannot simply assert a
position and then leave it to this Court to search for authority to sustain or reject that position.
Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998). Furthermore, no evidence
established that Trammel undertook a promise directly to or for plaintiff. Schmalfeldt, supra.
Accordingly, the trial court correctly dismissed plaintiff’s claim for breach of contract.
Plaintiff further contends that Trammel negligently failed to perform its contractual duty
to maintain the glass doors in a reasonably safe condition. We disagree. To establish a prima
facie case of negligence, a plaintiff must prove: (1) that the defendant owed a duty to the
plaintiff; (2) that the defendant breached the duty; (3) that the defendant’s breach of duty
proximately caused the plaintiff’s injuries; and (4) that the plaintiff suffered damages. Case v
Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000).
A tort action resulting from misfeasance of a contractual obligation must be based on the
existence of a duty separate and distinct from the contractual obligation itself. Fultz v UnionCommerce Associates, 470 Mich 460, 467; 683 NW2d 587 (2004). The lease between BCN and
Riggs established that BCN was responsible for maintaining the doors. No evidence showed that
Trammel owed plaintiff a duty separate and distinct from its contractual obligation to BCN. The
trial court, therefore, properly dismissed plaintiff’s breach of contract claim.
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Plaintiff also argues that the trial court erred by granting Trammel’s motion for summary
disposition because Trammel failed to maintain the glass doors in reasonably safe condition. We
disagree. A possessor of land has a duty to exercise reasonable care to protect an invitee from an
unreasonable risk of harm caused by a dangerous condition on the land. The duty encompasses
the obligation to use reasonable care to protect invitees from risks that the possessor of land
knows or should know will not be discovered by those invitees. Bertrand v Alan Ford, Inc, 449
Mich 606, 609; 537 NW2d 185 (1995).
However, premises liability is conditioned upon the presence of both possession of and
control over the premises. For purposes of premises liability, possession depends on the actual
exercise of dominion and control over the property. Kubczak v Chemical Bank & Trust Co, 456
Mich 653, 660-662; 575 NW2d 745 (1998). No evidence established that Trammel had actual
possession of and control over the premises. The lease between BCN and Riggs gave BCN the
responsibility of maintaining the glass doors. BCN, and not Trammel, had possession of and
control over the glass doors. Therefore, the trial court properly dismissed plaintiff’s premises
liability claim against Trammel.
Even assuming arguendo that the doctrine of premises liability could serve as a basis for
a claim against Trammel, such a claim would fail as there was no evidence that Trammel caused
the dangerous condition or had notice of it. Derbabian v S & C Snowplowing, Inc, 249 Mich
App 695, 706; 644 NW2d 779 (2002).
Affirmed.
/s/ Jessica R. Cooper
/s/ Karen M. Fort Hood
/s/ Roman S. Gribbs
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