JAMES J LONG V CITY OF PORT HURON
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
JAMES J. LONG and DIANE LONG,
UNPUBLISHED
February 22, 2011
Plaintiffs-Appellees,
v
No. 294468
St. Clair Circuit Court
LC No. 06-001576-NI
CITY OF PORT HURON and SEMCO ENERGY
GAS COMPANY,
Defendants,
and
PAMAR ENTERPRISE, INC.,
Defendant-Appellant.
Before: SAAD, P.J., and K. F. KELLY and DONOFRIO, JJ.
PER CURIAM.
In this premises liability action, defendant Pamar Enterprise, Inc., appeals by right from a
judgment in favor of plaintiffs and from a subsequent order denying its motion to amend the
judgment or in the alternative for a new trial. We reverse the judgment against defendant Pamar.
I. BASIC FACTS & PROCEDURE
On January 4, 2006, plaintiff James Long was jogging through the intersection of
Riverside and Garfield in the city of Port Huron when he tripped on an uncovered gas valve near
the curb and fell to the ground, sustaining injuries to his right knee and left elbow.
Plaintiffs1 filed suit against Pamar, the city of Port Huron, and SEMCO Energy Gas
Company, alleging that while Pamar was working on a sewer separation project at the
1
Diane Long asserted a claim for loss of consortium.
-1-
intersection in the fall of 2005, it negligently removed the valve cover and failed to replace the
cover prior to stopping work for the winter. The trial court found in favor of plaintiffs in the
amount of $120,000, but also found that James Long was 40 percent comparatively negligent.
The court awarded plaintiffs $72,000, of which $5,000 was allotted to Diane Long’s claim. The
court found that the city of Port Huron was liable for 50 percent of the amount owed to plaintiffs,
or $36,000, and that SEMCO and Pamar were liable for 25 percent of the amount owed to
plaintiffs, or $18,000 each. Plaintiffs moved for taxable costs, interest and attorney fees. The
trial court granted the motion and ultimately entered a judgment in favor of plaintiffs and against
Pamar in the total amount of $32,862.41.2
Pamar moved for amendment of the judgment pursuant to MCR 2.517(B), or in the
alternative for a new trial pursuant to MCR 2.611(A)(1)(e). Pamar argued that plaintiffs offered
no proof that Pamar removed the valve cover, that it owed no duty to James Long because the
condition was open and obvious, and that it lacked possession and control of the property. The
trial court denied the motion.
II. MOTION TO AMEND THE JUDGMENT/NEW TRIAL
Pamar argues that the trial court erred in denying its motion to amend the judgment or
grant a new trial because it did not owe James Long any duty since it was not in possession or
control of the premises when James Long was injured. We agree.
The denial of a motion to amend judgment is reviewed for an abuse of discretion.
Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 381-382; 775
NW2d 618 (2009). A trial court’s denial of a motion for a new trial is reviewed for an abuse of
discretion. Allard v State Farm Ins Co, 271 Mich App 394, 406; 722 NW2d 268 (2006). The
existence of a duty is a question of law subject to de novo review. Brown v Brown, 478 Mich
545, 552; 739 NW2d 313 (2007).
To establish a prima facie case of negligence, a plaintiff must prove: (1) a duty owed by
the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages. Henry v
Dow Chem Co, 473 Mich 63, 71-72; 701 NW2d 684 (2005). “Under the principles of premises
liability, the right to recover for a condition or defect of land requires that the defendant have
legal possession and control of the premises.” Morrow v Boldt, 203 Mich App 324, 328; 512
NW2d 83 (1994). Possession and control are required because “‘[i]t 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.’” Kubczak v
Chemical Bank & Trust Co, 456 Mich 653, 662; 575 NW2d 745 (1998), quoting Nezworski v
Mazanec, 301 Mich 43, 56; 2 NW2d 912 (1942) (emphasis in original).
2
SEMCO and the City of Port Huron have been dismissed pursuant to stipulations, and are not
parties to this appeal.
-2-
In Derbabian v S & C Snowplowing, Inc, 249 Mich App 695; 644 NW2d 779 (2002),
this Court reviewed the law of possession and control, and stated:
Our Supreme Court has defined a “possessor” of land as:
“(a) a person who is in occupation of the land with intent to control it or
“(b) a person who has been in occupation of land with intent to control it,
if no other person has subsequently occupied it with intent to control it, or
“(c) a person who is entitled to immediate occupation of the land, if no
other person is in possession under Clauses (a) and (b).” [Merritt v Nickelson,
407 Mich 544, 552; 287 NW2d 178 (1980), quoting 2 Restatement Torts, 2d, §
328 E, p 170.]
See also Orel v Uni-Rak Sales Co, Inc, 454 Mich 564, 569; 563 NW2d 241
(1997).
To determine whether [a] defendant was a possessor of [the premises], it is
necessary to determine the meaning of the terms “possession” and “control” as
used in the definition of “possessor.” Neither of these words has been previously
defined by Michigan case law; accordingly, relevant dictionary definitions may be
consulted in order to determine the plain meaning of these terms. Oakland Co Bd
of Co Rd Comm’rs v Michigan Property & Casualty Guaranty Ass’n, 456 Mich
590, 604; 575 NW2d 751 (1998); Michigan Millers Mutual Ins Co v Bronson
Plating Co, 445 Mich 558, 568; 519 NW2d 864 (1994); Hoover Corners, Inc v
Conklin, 230 Mich App 567, 572; 584 NW2d 385 (1998).
Black’s Law Dictionary (7th ed) defines “possession,” in this context, as
“[t]he right under which one may exercise control over something to the exclusion
of all others” (emphasis added). . . . Random House Dictionary (1995), p 297,
defines “control” as “exercise[ing] restraint or direction over; dominate, regulate,
or command.” Similarly, Black’s Law Dictionary defines “control” as “the power
to . . . manage, direct, or oversee.” . . .
In Kubczak v Chemical Bank & Trust Co, 456 Mich 653, 661; 575 NW2d
745 (1998), the Supreme Court stated that “possession for purposes of premises
liability does not turn on a theoretical or impending right of possession, but
instead depends on the actual exercise of dominion and control over the
property.” (Emphasis added.) [Derbabian, 249 Mich App at 702-704 (footnotes
omitted).]
Clearly, Pamar had possession and control of the intersection of Riverside and Garfield
while it was on site and working on the sewer separation project given that Pamar managed and
oversaw the project. Derbabian, 249 Mich App at 704. Moreover, the evidence supported the
trial court’s finding that the valve cover disappeared while Pamar had possession and control of
the property. However, Pamar left the site for the winter, completely ceasing work on November
23, 2005. It did not return to the job site and begin working again until March or April 2006.
During that time, Pamar placed no traffic barriers and construction equipment at the site. It did
-3-
not manage or direct the site, and could not exclude anyone from it. Therefore, when James
Long was injured on January 4, 2006, Pamar no longer possessed or controlled the intersection.
See id. at 702. Instead, the street was under the jurisdiction of the city of Port Huron. We
conclude that the city had possession and control of the intersection at the time that James Long
was injured, notwithstanding the evidence that the valve cover was removed while Pamar had
possession and control of the premises. Because Pamar did not have possession and control of
the intersection at the time James Long was injured, Pamar owed no duty to James Long and
cannot be held liable under a theory of premises liability. Kubczak, 456 Mich at 662.
Given our resolution of the issue of Pamar’s possession and control of the premises at the
time James Long was injured, we need not address the applicability of the open and obvious
doctrine.
Reversed and remanded for entry of judgment in favor of defendant Pamar. We do not
retain jurisdiction.
/s/ Henry William Saad
/s/ Kirsten Frank Kelly
/s/ Pat M. Donofrio
-4-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
