Lead Opinion
Wе granted leave to appeal in this case to determine "whether a co-owner of land on which a drag-strip race track is operated by the other co-owner is responsible for injuries occurring on that land to a spectator of the races”. We hold that such co-owner is not, and affirm the Court of Appeals.
On the day the race track opened, May 30, 1970, the flywheel on a car driven by defendant Howard Nickelson exploded, throwing steel fragments into the crowd. Plaintiff Alan Merritt, a spectator, was struck and killed by one of the fragments.
Plaintiff, administratrix of Alan Merritt’s estate, brought suit for wrongful death against Nickelson and Marie and James Ledford. Nickelson’s insurance company settled the claim on his behalf for $8,500 and the cause continued to trial against the Ledfords.
The basis for plaintiffs complaint against the Ledfords was that as owners and operators of the race track, they were negligent in failing to make a safety inspection of the cars and in failing to require that the cars be equipped with a scatter shield for the flywheel, pursuant to the recommendations of the National Hot Rod Association.
The trial court, sitting without a jury, gave judgment for plaintiff against both defendants Led-ford for $137,000.
Marie Ledford appealed, arguing that she was not negligent and that there was no basis upon which her son’s negligence could be imputed to her. Although she did not testify at trial, the record reveals that James Ledford was the sole owner and proprietor of the business. He testified that his mother neither invested money in the business, participated in its formation or opera
The Court of Appeals reversed judgment against Marie Ledford, holding that mere co-ownership in land, without a showing of possession or control, was an insufficient basis upon which to impose liability for the defective condition of the premises. Merritt v Nickelson,
As a business invitee on the property, Alan Merritt had the right to expect that the premises would be maintained and the business conducted in a reasonably safe manner. Quinlivan v Great Atlantic & Pacific Tea Co, Inc,
Invitors are liable for known dangerous conditions of property and for dangerous conditions which might be discovered with reasonable care, regardless of whether they have legal title or control over the premises. District of Columbia v Thomas, 130 US App DC 365, 367; 401 F2d 430, 432 (1968); Danisan v Cardinal Grocery Stores, Inc, 155 Cal App 2d 833;
Plaintiff asserts, however, that Marie Ledford is jointly liable for her son’s negligent acts because
We disagree.
Premises liability is conditioned upon the presence of both possession and cоntrol over the land. This is so because
"[T]he man in possession is in a position of control, and normally best able to prevent any harm to others.” Prosser, supra, § 57, p 351.
Michigan has consistently applied this principle in imposing liability for defective premises. Quinlivan, supra, 267; Bluemer, supra, 408; Nezworski v Mazanec,
Our application of this principle is in accordance with the Restatement of Torts. Thе Restatement imposes liability for injuries occurring to trespassers, licensees, and invitees upon those who are "possessors” of the land. 2 Restatement Torts, 2d, §§ 333-350, pp 183-233. A "possessor” is defined 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).” Id., § 328 E, p 170.
Ownership alone is not dispositive. Possession and control are certainly incidents of title owner
The mere fact that Marie Ledford was a tenant in common with her son did not place her in occupancy of the land with the intent of controlling it. As a tenant in common, she was entitled to entеr upon every part of the land and to occupy and enjoy the whole, DesRoches v McCrary,
Plaintiff argues that the obligation to keep one’s premises reasonably safe for use of business visitors is a liability that an owner may not avoid. She cites fairground and amusement park cases where owners of property were held liable for the negligеnt acts of concessionaires or third parties whom the owners allowed to use the premises. She asserts:
"There is no reason to believe that a non-operating co-owner of land should be relieved from liability for the negligent condition and operation carried on by the active co-owner when a non-operating sole owner is not relieved from liability for a condition or activity carried out on the owner’s premises by an independent third party.”
This misperceives the issue. Again, it is the unity of possession and control that is dispositive.
When one co-owner of land cedes possession and control of the premises to her co-ownеrs, the law is satisfied to look to those co-owners actually in control for liability for injuries to third persons. The record in the present case does not establish that Marie Ledford, exercised her right to possession and control over the property. Insofar as James Ledford became the sole "possessor” of the land within thе meaning of the Restatement, supra, he alone owed a duty of care to the invitees who entered the premises. Id., § 344, p 223; § 341 A, p 209.
We find the Court of Appeals disposition of this case appropriate. Accordingly, we remand this cause to the trial court for the disposition set forth at
Affirmed.
Notes
Rockwell v Hillcrest Country Club, Inc,
Concurrence Opinion
(concurring in the result). I concur with the result reached by Justice Kavanagh. This matter should be remanded to the
I
This case presents a unique, hybrid situation. We are asked to determine the effect of tortious activity upon the relationship of two persons who own property as tenаnts in common. Any analysis, therefore, must focus on the exact nature of the relationship of those who hold land as tenants in common.
Tenancy in common as distinguished from other types of concurrent ownership, such as joint tenancy or tenancy by the entireties, is a type of co-ownership whereby each of the cotenants hаs a separate and distinct interest in property; but the right of possession is common to all the cotenants. Unity of possession is the essential dynamic present in all tenancies in common. Unity of possession means that each cotenant is entitled to possession of the whole property and every part thereof, subjeсt to the same right in the other cotenants. Moynihan, Introduction to the Law of Real Property, ch 10, § 4, p 224.
Although it is well recognized that the right of possession of the whole property is vested in each tenant in common, situations often arise where one tenant in common takes possession of the whole or conducts an activity which would preclude possession by the other tenants in common. Such situations may develop because of the con
Because of the relative frequency of exclusive possession by one tenant in common, courts have been called upon to fashion remedies when the other tenants in common are aggrieved by the exclusive possession. An action in ejectment will lie when there is exclusive, adverse and hostile possession and the court may order partition of the property. Fenton v Miller,
In Zwergel v Zwergel,
The converse of the Zwergel holding is repre
There is a common thread between the Zwergel and Walton cases. Mere ownership of property is an insufficient basis for an award of damages in favor of one tenant in common for the exclusive possession and operation of a business on the common property by another cotenant. More is required. There must be some partiсipation by the aggrieved cotenant in the venture on jointly held property before damages will be awarded.
The Zwergel and Walton holdings also have a bearing, by analogy at least, in the context of the instant case. If fundamental fairness dictates that a tenant in common, as in Zwergel, who has exclusive possession of common property by the consent or acquiescence of his cotenants retain all the profits from a venture on the property, fundamental fairness should also dictate that the exclusive possessor be responsible for any and all liabilities which result from the possessor’s activities on
However, as in Walton, a different result would pertain if the non-possessory cotenant actually participated in the venture. Whether this involvement or participation occurred through ownership of stock, subsidy of the venture, or actual management, the cotenant would have a basis to participate in profits and, likewise, would be liable both to his cotenant and to third parties for tortious activity that resulted from the venture. Thus, it is the very relationship between the tenants in common which dictates whether the parties will share in the advantages and liabilities of their ventures.
II
The pertinent facts in the instant cаse are the following: In early 1970, defendant James Ledford entered into construction contracts for a drag strip race track to be built on a parcel of land then owned solely by defendant Marie Ledford. On May 6, 1970, for the sum of $500, Marie Ledford executed a quitclaim deed for the 25-acre parcel of land upon which the drag striр was built to herself and James Ledford as tenants in common. On May 30, 1970, plaintiff’s decedent, a spectator, was fatally injured in an automobile mishap at the drag strip.
At trial, James Ledford testified that he was the sole manager and operator of the drag strip and that Marie Ledford played no part in the management of the track. Marie Ledford did not testify at trial. When judgment was rendered against both defendants, Marie Ledford brought a motion for new trial. In her motion, Marie Ledford pled that she had no involvement whatsoever in the man
From this factual backdrop, it would be arguable on one level that defendant Marie Ledford should bear no responsibility and therefore no liability for the death that occurred, because she had no "control” over the day-to-day operation of the drag strip. But as the Walton case so vividly demonstrates, control is not the exclusive governing principle. Liability of a tenant in common is not only predicated upon the tort concept of control but is also predicated on the property concept of involvement, of participation in the venture.
Although, admittedly, the factual development of this case as regards defendant Marie Ledford is rather scant, even from these facts there appears to be evidence that might be considered by a jury to find her potentially liable. For instance, the jury might consider that Marie Ledford, by selling James Ledford an undivided one-half interest in a 25-acre parcel of land for $500, in effect subsidized the creation of the drag strip. If it were determined that she was a participant in the establishment of the drag strip, her liability would follow.
The chief problem with this argument and the major problem with the entire case, for that matter, is the lack of factual information on which to base a firm conclusion concerning Marie Ledford’s participation in the drag-strip operation. A myriad of questions remain unanswered. For example, we do not know whether Marie Ledford subsidized the establishment of the drag strip by direct capital outlays. Further, we have no information about who paid the property taxes on the parcel of land or, if it were necessary to sell or partition the land to satisfy the judgment in this case, how the profits would have been divided.
Because the instant factual setting presents a true hybrid situation, encompassing tort concepts of control and property concepts of involvement and participation in a venture, this matter should be remanded to the trial court not only to allow plaintiff the opportunity to present evidence of Marie Ledford’s control over thе operation of the drag strip but also to allow plaintiff to present evidence of her involvement and participation, as a co-owner of the real estate, in the establishment and operation of the drag strip.
In Zwergel, the cotenants were a brother and sister who held the land as joint tenants with the right of survivorship. Generally speaking, there is a certain risk in comparing fact situations and legal analyses involving joint tenancies with tenancies in common because the legal principles involved may differ. However, it is readily apparent from Walton v Walton,
By statute, in Michigan, a husband and wife who own real estate as joint tenants or as tenants by entireties become tenants in common upon being divorced, unless otherwise provided by the judgment of divorce. MCL 552.102; MSA 25.132.