Lead Opinion
The issue in this case is whether title owners of real property may be held liable for a public
I. PACTS AND HISTORY
In 2010, Terri Sholberg while driving her car hit a horse that was standing in the road and died as a result. Plaintiff, as personal representative of her estate, brought this action against Daniel Truman, the owner of the horse that had escaped from its stall on the farm,
A default judgment was entered against Daniel Truman. However, the trial court granted defendants’ motion for summary disposition, concluding that they could not be held liable for public nuisance because they were not in possession of the property. The Court of Appeals reversed with regards to the public nuisance claim,
A trial court’s decision on a motion for summary disposition is reviewed de novo. Malpass v Dep’t of Treasury,
III. ANALYSIS
As an initial matter, the lower courts and the parties all assumed that incidents of animal elopement can constitute a public nuisance, and thus we too will assume, without deciding, that incidents of animal elopement can constitute a public nuisance.
As the Court of Appeals explained in Merritt v Nickelson,
To argue, as plaintiff does, that a co-owner’s right to possession of the premises is sufficient to hold that co-owner liable for all injuries on the premises is to be simplistic. The issue of control is preeminent.
[The] rights and liabilities arising out of the condition of land, and activities conducted upon it, have been concerned chiefly with the possession of the land * * * for the obvious reason that the man in possession is in a position of control, and normally best able to prevent any harm to others. Prosser, Law of Torts (3d ed), § 57, at 358. (Footnote omitted.)
“Possession” differs from the “right to possession” and “ownership” because of the concept of control. Possession is the detention and control of anything which may be the subject of property, for one’s use and enjoyment. Blacks Law Dictionary (4th ed), at 1325. The mere “right to possession” does not necessarily entail the control inherent in the nature of “possession.”
It has been recognized in this state that control and possession are the determinative factors in the imposition of liability.
*8 It 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. [Citations omitted.]
This Court subsequently affirmed that decision, holding that a co-owner of land cannot be held liable where he or she has not “exercise[d] her right to possession and control over the property” because “[w]hen one co-owner of land cedes possession and control of the premises to her co-owners, the law is satisfied to look to those co-owners actually in control for liability for injuries to third persons.” Merritt v Nickelson,
Ownership alone is not dispositive. Possession and control are certainly incidents of title ownership, but these possessory rights can be “loaned” to another, thereby conferring the duty to make the premises safe while simultaneously absolving oneself of responsibility. [Id. at 552-553.]
See also Musser v Loon Lake Shores Ass’n,
In the landlord/tenant context (which bears considerable resemblance to the context we have here), this Court has made it clear that generally a landlord is not
It is not pretended that the mere ownership of real estate upon which there are dangers will render the owner liable to those who may receive injury in consequence. Some personal fault must be involved, or neglect of duty, before there can be a personal liability. As between landlord and tenant the party presumptively responsible for a nuisance upon the leased premises is the tenant. But this might be otherwise if the lease itself contemplated the continuance of the nuisance, for in that case the personal fault of the landlord would be plain[.] [Citations omitted.]
The question at issue in Samuelson was “whether a personal duty to guard against danger to the [iron] miners was still incumbent upon the defendant as owner of the mine, and was continuous while the mine was being worked by the contractors.” Id. at 173. This Court held:
Mere ownership of the mine can certainly impose no such duty. The owner may rent a mine, resigning all charge and control over it, and at the same time put off all responsibility for what may occur in it afterwards. If he transfers no nuisance with it, and provides for nothing by his lease which will expose others to danger, he will from that time have no more concern with the consequences to others than any third person. If instead of leasing he puts contractors in possession the result must be the same if there is nothing in the contract which is calculated to bring about danger. But if, on the other hand, he retains charge and control, and gives workmen a right to understand that he is caring for their safety and that they may rely upon him to guard against negligent conduct in the contractors and others, his moral accountability for their safety is as broad as it would be if he were working the mine in person; and his legal accountability ought to be commensurate with it.
*10 But we do not find that in this case there was any such retention of charge and control, or that the arrangement between the contractors and the mining company gave to workmen any assurance that the company would protect them against the negligence of the contractors and their servants. [Id. at 173-174.]
The general rule is that if “the acts of the tenant unauthorized by the landlord create a nuisance ‘after he has entered into occupation as a tenant, the landlord is not liable.’ ” Rosen v Mann,
“The underlying reason for the general rule ... is that after leasing and surrendering the premises to the tenant the landlord loses all control over them.” Rosen,
A tenant or occupant of premises having the entire control thereof is, so far as third persons are concerned, the owner. He is, therefore, as already stated, usually deemed to be prima facie liable for all injuries to third persons occasioned by the condition of the demised premises. [Rosen,219 Mich at 692 (quotation marks and citations omitted).]
Although this Court has consistently held that control is required in order to hold a defendant liable for a nuisance, in dicta the Court of Appeals has articulated this rule in such a way that suggests that ownership alone may be sufficient to impose liability even if someone other than the owner exercises control over the property. To wit, in Cloverleaf,
A defendant is liable for a nuisance where (1) the defendant created the nuisance, (2) the defendant owned or controlled the land from which the nuisance arose, or (3) the defendant employed another person to do work from which the defendant knew a nuisance would likely arise. [Emphasis added.]
The Court held that because the defendant did not own or control the property, the defendant could not be held liable. Cloverleaf cited Gelman Sciences, Inc v Dow Chemical Co,
Gelman in turn cited Radloff v Michigan,
Radloff cited Stemen v Coffman,
To be liable for nuisance, it is not necessary for an individual to own the property on which the objectionable condition is maintained, but rather, liability for damages turns on whether the defendant controls the property, either through ownership or otherwise.[9 ] A person is liable*13 if he or she knowingly permits the creation or maintenance of a nuisance on premises of which he or she has control even though such person does not own the property or even though such person is not physically present, such as where he or she is an absentee owner. A party who has no control over the property at the time of the alleged nuisance cannot be held liable therefor.
While this language indicates that an absentee owner may be held liable, it does not state that mere land ownership may give rise to liability. That is, even the treatise cited above and referred to by Stemen indicates that something more than mere ownership is required — the absentee landowner must have “knowingly permit [ted] the creation or maintenance of a nuisance on [the] premises.” Id.
In the instant case, defendants merely own the property. It is undisputed that they have never possessed or exercised any control over the property. They have not even visited the property in more than a decade. They have no contact with the person who is in actual possession of the property and who is exercising control over that property. Defendants also had nothing to do with the horse that caused the accident in this case or with any other horse on the property. They did
The facts in this case are that the property in question was under the possession and control of Daniel Truman. That while Robert and Marilyn Truman held fee title to that property, it was something more in the nature of a security interest than active ownership. There’s no evidence to show that they actively managed, supervised, maintained, possessed or controlled the subject property. To the contrary, all the evidence shows that possession and control of the premises was vested in Daniel Truman. The Plaintiff points to language in a mortgage on the subject premises that’s clearly regulating the relations as between the bank and Robert and Marilyn Truman. It doesn’t constitute any sort of admission by them that they were actually controlling the property as opposed to having the right to control it in relation to the bank, that right being something that they had passed along to Daniel Truman from the get go in this transaction it appears.
Robert and Marilyn were not in possession of the subject property. They didn’t control the subject property. Therefore, there’s no nuisance liability that can be attached to them with respect to this land, and the Court likewise must grant summary disposition .. . ,[12 ]
IV CONCLUSION
For these reasons, we hold that title owners of real property cannot be held liable for a public nuisance that arose from that property, when someone other than the title owners is in actual possession of the property, is exercising control over the property, and is the one who created the alleged nuisance. Therefore, we reverse that portion of the Court of Appeals’ judgment that held to the contrary and reinstate the trial court’s order granting defendants’ motion for summary disposition.
Notes
The horse had been stored in a three-walled enclosure with a heavy gate, but the gate had been secured with baling twine that had failed.
Robert and Daniel Truman’s mother sold the property to Daniel Truman and his now ex-wife, Linda Truman. When Daniel and Linda divorced in 1989, the divorce decree required Daniel to pay off his wife’s interest in the property. In order to have the cash to do so, Daniel borrowed money from his brother, Robert. Presumably because of the financial assistance that defendants provided Daniel, Linda signed the deed to the property over to defendants. Daniel repaid about $6,000 of the $15,000 that he owes defendants, but has not made a payment to defendants in several years, although Daniel does pay the property taxes. Defendants had a land contract drawn up but never obtained Daniel’s signature on it. Defendants and Daniel do not speak with one another and have not done so for the past 10 years. Defendants have also not been on the property in the past 10 years.
“Elope” in this legal context means “to flee; escape.” Random House Webster’s College Dictionary (1992).
It is unknown whether all of these elopements involved animals from the property at issue here.
Plaintiff also claimed negligence and violations of the Equine Activity Liability Act, hut the trial court subsequently dismissed those claims and the Court of Appeals affirmed. Plaintiff filed an application for leave to appeal which this Court denied, and thus those claims are not before this Court.
Because defendants failed to raise this issue at the trial court, this issue is not properly before this Court. See Walters v Nadell,
Although Merritt and Musser involved premises liability causes of action, the general principles of tort liability articulated in those opinions are just as relevant in the context of a nuisance cause of action. Tort law generally does not favor shifting liability from a party directly responsible for giving rise to the tort to a mere title holder who lacked actual possession and control of the land.
Stemen actually cited § 49, but this language can only be found in § 95, pp 642-643.
See also Beard v Michigan,
As recognized by the partial dissent, “this Court has never explicitly held that knowledge is a required element of a nuisance claim,” post at 23, and we do not hold so in the instant case. See note 11 of this opinion. Such a holding would require us to modify our existing common law, and “[w]hile this Court unquestionably has the authority to modify the common law, such modifications should be made with the utmost caution because it is difficult for the judiciary to assess the competing interests that may be at stake and the societal trade-offs relevant to one modification of the common law versus another in relation to the existing rule.” Woodman v Kera LLC,
We speak of knowledge not because it is an element of a nuisance action in this state, because it is not, see note 10 of this opinion, but only because defendants’ lack of knowledge is relevant evidence in this case of defendants’ lack of control or possession of the property, which is an element of a nuisance action. See Wagner,
Unlike the partial dissent, we do not believe that there is a genuine issue of material fact in this case concerning the issue of control. Although the facts cited by the partial dissent — that defendants are the title owners of the property, that they loaned money to Daniel Truman so that he could buy out his ex-wife’s interest in the property, that they maintained insurance on the property, and that they took out a mortgage on the property that included a duty to maintain the property — suggest strongly that defendants may have had a right to exercise control of the property, they do not suggest that defendants actually exercised control over the property, which remains the dispositive issue. See Merritt,
Because in this case someone other than defendant title owners was in possession of and exercising control over the property, it is unnecessary to address whether an absentee landowner could be held liable for a nuisance where no one is in possession of or exercising control over property. We simply hold that when someone other than the landowner is in possession of property, is exercising control over the property, and is the one who created the nuisance, that person, rather than the landowner, is the one liable for the public nuisance.
Concurrence Opinion
(concurring). I agree with the majority’s result for the reasons stated in the conclusion section of the opinion. Defendants are entitled to summary disposition because they were not in possession of the property, did not have control over the property, and did not create the alleged nuisance.
Concurrence Opinion
(concurring in part and dissenting in part). I concur with the majority that defendants Robert and Marilyn Truman are entitled to dismissal because they are not liable for the nuisance at issue. I write separately because I disagree that this case can be decided as a matter of law on the issue of defendants’ control over the land from which the nuisance arose. But I would reach the same result because I believe that defendants’ lack of knowledge of the nuisance provides an alternative basis for dismissal.
In our order directing oral argument on defendants’ application for leave to appeal, this Court directed the parties to address “whether, and under what circumstances, a property owner who is not in possession of the property and does not participate in the conduct creating an alleged nuisance may be liable for the alleged nuisance.”
I. CONTROL
I agree with the majority that “control is required in order to hold a defendant liable for a nuisance ... .”
There is evidence that someone other than defen
Given the foregoing facts, I believe that the fact of title ownership — when coupled with defendants’ financial leverage over Daniel Truman, their insurance interest, and the commitments they made in the 2010 mortgage — created a genuine issue of material fact
II. KNOWLEDGE
Despite the foregoing, I agree with the majority that defendants are entitled to summary disposition because even if defendants had control over the land, their lack of knowledge of the alleged nuisance provides an alternate basis for dismissal.
The general rule in nuisance law is that “[a] landowner is subject to liability for a nuisance created by the activity of a third party on the land if the owner knows, or has reason to know, that the activity is causing, or will cause, an unreasonable risk of nuisance, and the landowner consents to the activity or fails to exercise reasonable care to prevent the nuisance.”
Unlike some other jurisdictions, this Court has never explicitly held that knowledge is a required element of a nuisance claim.*
Indeed, knowledge is a crucial element in circumstances in which a third party creates a nuisance. When
In this case, however, as even the majority acknowledges, there is no evidence that defendants knew or should have known about the elopements. Contrary to the Court of Appeals’ assertion, there is no evidence that defendants were aware of the farm animals’ tendency to escape in the 10 years before the accident. Therefore, even if they had the requisite control over the land, defendants cannot be liable because they had no knowledge of the nuisance.
III. CONCLUSION
In sum, although I agree with the majority that control is the critical inquiry for nuisance liability, I disagree that dismissal is warranted on that ground when defendants’ ownership of the property, taken together with other facts in the record, creates a question of fact on the issue of control. I would conclude that summary disposition was nevertheless appropriate on the alternative basis that there is no genuine issue of material fact on the issue of knowledge, which is a necessary element for nuisance liability.
In re Sholberg Estate,
Ante at 11. See 58 Am Jur 2d, Nuisances, § 91, p 640 (stating the general rule that “dominion and control over the property causing the harm is sufficient to establish nuisance liability”); see also 58 Am Jur 2d, Nuisances, § 95, p 643(“A party who has no control over the property at the time of the alleged nuisance cannot be held liable therefor.”).
58 Am Jur 2d, Nuisances, § 95. See ante at 12.
Ante at 14. Although I agree that ownership may not he dispositive of control in some cases (for example, when control is ceded by means of a lease or land contract), I cannot agree with the more general assertion that proof of ownership will never he sufficient to establish control. Rather, I believe that in many cases proof of ownership will be sufficient to establish control because the title owner typically has the right to control and dispose of the property. See Taylor et al, Michigan Practice Guide: Torts, § 1:816 (2004) (“A landowner will usually have sufficient control to he liable for a nuisance!.]”); Eastbrook Homes, Inc v Dep’t of Treasury,
Although Robert Truman allegedly had a land contract drafted, there is no evidence of that document in the record, and Robert Truman and Daniel Truman testified that the document was never executed.
In his deposition, Robert Truman claimed that he actually intended to take a mortgage on a different parcel of land that he owned on Stutsmanville Road. He asserted that the fact the mortgage was taken on the 5151 Stutsmanville Road property was an error at the bank. While this alleged error could refute that defendants had control over the property by means of the mortgage agreement, I believe that the import of the written agreement and credibility of Robert Truman’s statements should be resolved by the trier of fact.
It is the primary obligation of a landowner to keep his premises from becoming a public nuisance. See Kern v Myll,
The majority relies on Musser v Loon Lake Shores Ass’n,
The majority opinion holds that absentee owners who, by virtue of their absence, have not actually exercised control over the property during the relevant time period are not hable for nuisance. I disagree with that holding because I do not believe that nuisance liability for absentee landowners turns on the actual exercise of control. Rather, even if an absent landowner does not actually exercise control over the property, the landowner may still be hable for nuisance when he or she retains a right to control the property sufficient to abate the nuisance. See e.g., Maynard v Carey Constr Co, 302 Mass 530, 533;
If defendants could show that, despite their status as title owners, they ceded control through a properly executed lease or land contract, then summary disposition may well have been in order. No party alleges that a landlord-tenant relationship existed in this case; however, defendants do assert that they sold the property to Daniel Truman on a land contract. Even so, absent a written agreement, and in light of the contrary evidence, I cannot conclude that a land contract existed as a matter of law. See Cowles v Bank West,
58 Am Jur 2d, Nuisances, § 96, p 643 (emphasis added). See also 66 CJS, Nuisances, § 121, pp 702-703 (“[T]he bare fact of ownership of real property imposes no responsibility for the nuisance unless the owner ... has knowledge of the nuisance on his or her property.”)
58 Am Jur 2d, Nuisances, § 95, p 643 (emphasis added). The knowledge requirement also applies to possessors and lessors. See Wagner v Regency Inn Corp,
See, e.g., Tennessee Coal, Iron & R Co v Hartline, 244 Ala 116, 124; 11 So 2d 833 (1943) (“[Landjowner may be liable for the continuance of a nuisance when he has knowledge thereof although it was created by the act of an unauthorized person.”) (emphasis in original); Louisville & N R Co v Laswell, 299 Ky 799, 805;
Wendt v Village of Richmond,
Id. at 177. See also Tennessee Coal, 244 Ala at 121.
Wendt,
Suffice it to say, I disagree with the majority’s assertion that recognizing a knowledge requirement would require a modification of our common law. The rule that knowledge is required to impose liability on landowners for a nuisance created by a third party appears to be the unanimous position of the courts and commentators that have addressed the issue, including our Court in Wendt and the Court of Appeals in Wagner. The majority also asserts that “the parties themselves have not even asked that the common law be modified by adding the element of knowledge ....” Ante at 13 n 10. However, plaintiff has never explicitly asked that the common law be modified to add a knowledge element because her position since the inception of this case has been that knowledge is already a recognized element of nuisance liability. Defendants did not disagree with this position until their briefing before this Court. Before reaching this Court, defendants consistently accepted that knowledge was required. For example, in their Court of Appeals brief, defendants conceded that “a title holder can only be held liable for a nuisance if he knows about it and fails to exercise reasonable care,” citing Wagner,
See Maynard, 302 Mass at 533 (stating that when the defendant landowner allowed a third-party to use the land, “after . .. notice [of the nuisance] it became the duty of the defendant, as . .. [the] owner who could resume control at will, to use all reasonable means within its power to abate the nuisance”).
I disagree with the majority’s assertion that knowledge is relevant evidence of control. A defendant who creates a nuisance will most likely have both knowledge and control of the nuisance. However, when, as in this case, a third party creates a nuisance, whether a defendant landowner has knowledge has no bearing on whether the landowner has sufficient control to abate the nuisance.