Merritt v. Nickelson

Kavanagh, J.

We 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.

*550Prior to May 6, 1970, defendant Marie Ledford was the sole owner of approximately 25 acres of land. On that day she executed a quitclaim deed to the property to herself and her son, defendant James Ledford, as tenants in common. The consideration recited was $500. For some time James Ledford had been planning to operate a race track on the property.

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*551tion, nor shared in its profits. Plaintiff offered no evidence to contradict this testimony.

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, 80 Mich App 663; 264 NW2d 89 (1978).

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, 395 Mich 244; 235 NW2d 732 (1975); McIntyre v Pfaudler Vacuum Fermentation Co, 133 Mich 552; 95 NW 527 (1903). This duty of care was owed to him both by the invitor who solicited his business and by the possessors of the premises. See, e.g., Bluemer v Saginaw Central Oil & Gas Service, Inc, 356 Mich 399, 408; 97 NW2d 90 (1959).

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; 318 P2d 681 (1957). From this record it does not appear that Marie Ledford was an invitor. James Ledford, as sole operator of the business, expected to derive an economic benefit from the public’s presence, and he alone impliedly warranted the premises’ safe condition in his invitation. Prosser, Torts (4th ed), § 61, pp 386, 388.

Plaintiff asserts, however, that Marie Ledford is jointly liable for her son’s negligent acts because *552she was the co-owner of the property on which he, the invitor, conducted his business.

We disagree.

Premises liability is conditioned upon the presence of both possession and control 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, 301 Mich 43, 56; 2 NW2d 912 (1942) (landlord-tenant cases); Bauer v Saginaw County Agricultural Society, 349 Mich 616, 623; 84 NW2d 827 (1957) (amusement park/concessionaire case); Dombrowski v Gorecki, 291 Mich 678, 681; 289 NW 293 (1939) (tenancy by entireties case).

Our application of this principle is in accordance with the Restatement of Torts. The 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*553ship, but these possessory rights can be "loaned” to another, thereby conferring the duty to make the premises safe while simultaneously absolving oneself of responsibility. Quinlivan, supra, 269.

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 enter upon every part of the land and to occupy and enjoy the whole, DesRoches v McCrary, 315 Mich 611; 24 NW2d 511 (1946); it does not appear here that she chose to do so. Her freehold was separate and distinct from that of her son. His occupancy of the land was under his own right, not hers. Everts v Beach, 31 Mich 136 (1875). He was not her agent by the mere fact of their joint ownership nor were the acts performed by him transformed into a joint venture. 20 Am Jur 2d, Cotenancy and Joint Ownership, § 2, p 93.

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 negligent 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. *554A "possessor” of property must exercise reasonable care in avoiding harm to others on his property from the negligent acts of third persons because he is in possession and control of the premises and in a position to exercise the power of control or expulsion. Prosser, supra, § 61, p 395. See, also, 2 Restatement, supra, § 344, p 223; § 383, p 287. In no case cited by plaintiff did the owner of the property give up control of the premises.1

When 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. 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 the 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 80 Mich App 668-669.

Affirmed.

Coleman, C.J., and Levin, Fitzgerald, and Ryan, JJ., concurred with Kavanagh, J.

Rockwell v Hillcrest Country Club, Inc, 25 Mich App 276; 181 NW2d 290 (1970); McCarron v Upper Peninsula Hauling Ass’n, 13 Mich App 168; 163 NW2d 805 (1968); Arnold v State, 163 App Div 253; 148 NYS 479 (1914); Virginia State Fair Ass’n v Burton, 182 Va 365; 28 SE2d 716 (1944); Bauer v Saginaw County Agricultural Society, 349 Mich 616; 84 NW2d 827 (1957).