premises liability claim in Michigan

2021Comparatively, “[o]rdinary negligence claims are grounded on the underlying premise that a person has a duty to conform his or her conduct to an applicable standard of care when undertaking an activity.” Lymon, 314 Mich App at 756 .

2018Thus, when an injury develops from a condition of the land, rather than emanating from an activity or conduct that created the condition on the property, the action sounds in premises liability. [Lymon v Freedland, 314 Mich App 746, 756 ; 887 NW2d 456 (2016) (quotation marks, citations, and brackets omitted).] “Historically, Michigan has recognized two distinct versions of nuisance, public nuisance and private nuisance.” Adkins v Thomas Solvent Co, 440 Mich 293, 302 ; 487 NW2d 715 (1992).

2026Ultimately, this Court held, under Lugo v Ameritech Corp, Inc, 464 Mich 512 ; 629 NW2d 384 (2001),6 that there remained a genuine issue of fact as to whether the dog “was an open and obvious danger.” But the Court nonetheless affirmed the trial court’s dismissal of the plaintiff’s premises liability claim on the ground that the plaintiff was a trespasser, not an invitee.

2026Ultimately, this Court held, under Lugo v Ameritech Corp, Inc, 464 Mich 512 ; 629 NW2d 384 (2001),6 that there remained a genuine issue of fact as to whether the dog “was an open and obvious danger.” But the Court nonetheless affirmed the trial court’s dismissal of the plaintiff’s premises liability claim on the ground that the plaintiff was a trespasser, not an invitee.

2025That is, “[w]hen an injury develops from a condition of the land, rather than emanating from an activity or conduct that created the condition on the property, the action sounds in premises liability.” Woodman v Kera, LLC, 280 Mich App 125, 153 ; 760 NW2d 641 (2008) (opinion by TALBOT, J.).

2025That is, “[w]hen an injury develops from a condition of the land, rather than emanating from an activity or conduct that created the condition on the property, the action sounds in premises liability.” Woodman v Kera, LLC, 280 Mich App 125, 153 ; 760 NW2d 641 (2008) (opinion by TALBOT, J.).

2018Gorman, 302 Mich App at 115 . -1- In order to successfully advance a premises liability claim, the plaintiff must prove: “(1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff’s injury, and (4) the plaintiff suffered damages.” Benton v Dart Properties, Inc, 270 Mich App 437, 440 ; 715 NW2d 335 (2006).

2018Gorman, 302 Mich App at 115 . -1- In order to successfully advance a premises liability claim, the plaintiff must prove: “(1) the defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff’s injury, and (4) the plaintiff suffered damages.” Benton v Dart Properties, Inc, 270 Mich App 437, 440 ; 715 NW2d 335 (2006).

2019See Adams v Adams (On Reconsideration), 276 Mich App 704, 710-711 ; 742 NW2d 399 (2007), where this Court explained, “[i]t is well settled that the gravamen of an action is determined by reading the complaint as a whole, and by looking beyond mere procedural labels to determine the exact nature of the claim.” -2- caused plaintiff’s injuries, and (4) that the plaintiff suffered damages.” Kennedy v Great Atlantic & Pacific Tea Company, 274 Mich App 710, 712 ; 737 NW2d 179 (2007) (citation omitted).

2019See Adams v Adams (On Reconsideration), 276 Mich App 704, 710-711 ; 742 NW2d 399 (2007), where this Court explained, “[i]t is well settled that the gravamen of an action is determined by reading the complaint as a whole, and by looking beyond mere procedural labels to determine the exact nature of the claim.” -2- caused plaintiff’s injuries, and (4) that the plaintiff suffered damages.” Kennedy v Great Atlantic & Pacific Tea Company, 274 Mich App 710, 712 ; 737 NW2d 179 (2007) (citation omitted).

2022To establish a premises liability claim, “the plaintiff must be able to prove that the premises possessor had actual or constructive notice of the dangerous condition at issue.” Pugno v Blue Harvest Farms LLC, 326 Mich App 1, 12 ; 930 NW2d 393 (2018) (quotation marks and citation omitted).

2022To establish a premises liability claim, “the plaintiff must be able to prove that the premises possessor had actual or constructive notice of the dangerous condition at issue.” Pugno v Blue Harvest Farms LLC, 326 Mich App 1, 12 ; 930 NW2d 393 (2018) (quotation marks and citation omitted).

2018We disagree. -2- Michigan courts have well established the rule that “[p]remises liability is conditioned upon the presence of both possession and control over the land.” Kubczak v Chemical Bank & Trust Co, 456 Mich 653, 660 ; 575 NW2d 745 (1998) (quotation marks and citation omitted); see also Orel v Uni-Rak Sales Co, 454 Mich 564, 568 ; 563 NW2d 241 (1997).

2018We disagree. -2- Michigan courts have well established the rule that “[p]remises liability is conditioned upon the presence of both possession and control over the land.” Kubczak v Chemical Bank & Trust Co, 456 Mich 653, 660 ; 575 NW2d 745 (1998) (quotation marks and citation omitted); see also Orel v Uni-Rak Sales Co, 454 Mich 564, 568 ; 563 NW2d 241 (1997).

2018Thus, when an injury develops from a condition of the land, rather than emanating from an activity or conduct that created the condition on the property, the action sounds in premises liability. [Lymon v Freedland, 314 Mich App 746, 756 ; 887 NW2d 456 (2016) (quotation marks, citations, and brackets omitted).] “Historically, Michigan has recognized two distinct versions of nuisance, public nuisance and private nuisance.” Adkins v Thomas Solvent Co, 440 Mich 293, 302 ; 487 NW2d 715 (1992).

2018Thus, when an injury develops from a condition of the land, rather than emanating from an activity or conduct that created the condition on the property, the action sounds in premises liability. [Lymon v Freedland, 314 Mich App 746, 756 ; 887 NW2d 456 (2016) (quotation marks, citations, and brackets omitted).] “Historically, Michigan has recognized two distinct versions of nuisance, public nuisance and private nuisance.” Adkins v Thomas Solvent Co, 440 Mich 293, 302 ; 487 NW2d 715 (1992).

2017This Court analyzed the case as a premises liability claim, as that was the plaintiff’s theory, and held that the care owed by a premises owner “extends to the instrumentalities on the premises that the invitee uses at the invitation of the premises owner.” Id. at 264 .

2017This Court analyzed the case as a premises liability claim, as that was the plaintiff’s theory, and held that the care owed by a premises owner “extends to the instrumentalities on the premises that the invitee uses at the invitation of the premises owner.” Id. at 264 .

2017In support of his claim, plaintiff relies on Clark v Dalman, 379 Mich 251, 261 ; 150NW2d 755 (1967), and argues that defendants had a common- law duty to use due care so as not to unreasonably endanger a person by their actions in that regard.

2017In support of his claim, plaintiff relies on Clark v Dalman, 379 Mich 251, 261 ; 150NW2d 755 (1967), and argues that defendants had a common- law duty to use due care so as not to unreasonably endanger a person by their actions in that regard.

2003The majority dismisses the trial court’s reliance on Bradford v Feeback, 149 Mich App 67, 70 ; 385 NW2d 729 (1986), noting that Bradford involved the children of guests and not children who were guests.

2003The majority dismisses the trial court’s reliance on Bradford v Feeback, 149 Mich App 67, 70 ; 385 NW2d 729 (1986), noting that Bradford involved the children of guests and not children who were guests.

2026“Where an issue is first presented in a motion for reconsideration, it is not properly preserved.” Vushaj v Farm Bureau Gen Ins Co of Mich, 284 Mich App 513, 519 ; 773 NW2d 758 (2009). -6- A premises-liability claim, such as the slip-and-fall claim maintained by plaintiff here, is a type of negligence claim.

2026“Where an issue is first presented in a motion for reconsideration, it is not properly preserved.” Vushaj v Farm Bureau Gen Ins Co of Mich, 284 Mich App 513, 519 ; 773 NW2d 758 (2009). -6- A premises-liability claim, such as the slip-and-fall claim maintained by plaintiff here, is a type of negligence claim.

2025The principal difference between a claim sounding in premises liability and one sounding in negligence is that a defendant’s duty in a premises liability action arises out of his ownership or possession of land, Jahnke v Allen, 308 Mich App 472, 475 ; 865 NW2d 49 (2014), whereas a defendant’s duty in a negligence action generally arises “from a statute, a contractual relationship, or by operation of the common law,” Hill v Sears, Roebuck & Co, 492 Mich 651, 660-661 ; 822 NW2d 190 (2012).

2025Nor has plaintiff otherwise meaningfully explained why his particular claim would fall outside the general circumstances considered in Banaszak, 485 Mich at 1038 .

2025Plaintiff argues that, by deeming the addition of a premises-liability claim futile, the trial court erroneously concluded that the O’Learys did not owe him a duty as landowners because “a landowner cannot be held liable under a premises liability theory where the common work area doctrine is present.” Plaintiff acknowledges that a premises-liability claim may not ordinarily be available in such circumstances, Banaszak v Northwest Airlines, Inc, 485 Mich 1038 , but stresses the trial court erred by deeming this to be a categorical rule.

2025Further, MCR 2.116(I)(5) states that when the trial court summarily disposes of a case under subrules (C)(8), (C)(9), or (C)(10), the trial court shall give the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that amendment would not be -2- justified. [Kincaid v Flint, 311 Mich App 76, 94-95 ; 874 NW2d 193 (2015) (quotation marks and citations omitted).] In denying plaintiff’s motion to amend on futility grounds, the trial court reasoned: Finally, to the extent plaintiffs [sic] seek to amend the Complaint to pursue a pre

2025Further, MCR 2.116(I)(5) states that when the trial court summarily disposes of a case under subrules (C)(8), (C)(9), or (C)(10), the trial court shall give the parties an opportunity to amend their pleadings as provided by MCR 2.118, unless the evidence then before the court shows that amendment would not be -2- justified. [Kincaid v Flint, 311 Mich App 76, 94-95 ; 874 NW2d 193 (2015) (quotation marks and citations omitted).] In denying plaintiff’s motion to amend on futility grounds, the trial court reasoned: Finally, to the extent plaintiffs [sic] seek to amend the Complaint to pursue a pre