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Van Vleet v. Consolidated Rail Corp.11/19/2002
UNPUBLISHED
Plaintiff appeals as of right the trial court's order granting summary disposition to defendant Consolidated Rail Corporation (Conrail) in this wrongful death action. We affirm.
This case involves the drowning death of four-year-old Katlynn Van Vleet. The accident occurred on property that abuts the River Raisin, between the Conrail railroad tracks and the City of Monroe Water Treatment Plant. On April 20, 1996, Katlynn was one of eight children who went to the River Raisin to fish. The children proceeded across a parking lot, down a path, and along a cement wall adjacent to the river. They stopped at the dam where there were cement structures on the river bank. When Katlynn jumped down from one cement structure to a lower one, she fell into the river and drowned.
Plaintiff brought this wrongful death action against Conrail based on theories of general negligence and attractive nuisance. Plaintiff alleged that Conrail failed to exercise reasonable care to prevent members of the public from using its property to gain access to the river, failed to warn of the dangers associated with the river, and failed to inspect its property in order to discover the dangerous condition of the river. Conrail moved for summary disposition under MCR 2.116(C)(10) on the ground that Katlynn's accident did not occur on its property and therefore Conrail owed no duty to her. The trial court agreed and granted Conrail's motion.
A motion for summary disposition under MCR 2.116(C)(10) tests the factual support of a claim and is subject to review de novo. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), the court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, in the light most favorable to the party opposing the motion. Quinto v Cross & Peters Co, 451 Mich 358, 362-363; 547 NW2d 314 (1996); MCR 2.116(G)(5). A trial court properly grants summary disposition if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law. Smith v Globe Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999).
One of the necessary elements that a plaintiff must establish in order to prevail in a negligence action is the existence of a duty. Hammack v Lutheran Social Services of Michigan, 211 Mich App 1, 4; 535 NW2d 215 (1995). The existence of a duty is a question of law for the trial court which is subject to review de novo on appeal. Id.; Colangelo v Tau Kappa Epsilon, 205 Mich App 129, 132; 517 NW2d 289 (1994). Duty exists where the relationship between the parties gives rise to a legal obligation on the part of one party for the benefit of the other, injured party. Braun v York Properties, Inc, 230 Mich App 138, 147; 583 NW2d 503 (1998); Rodriguez v Detroit Sportsmen's Cong, 159 Mich App 265, 270; 406 NW2d 207 (1987).
In order to establish duty in a premises liability claim, a plaintiff must prove that the defendant had legal possession and control of the premises at issue. Kubczak v Chemical Bank & Trust Co, 456 Mich 653, 660; 575 NW2d 745 (1998); Merrit v Nickelson, 407 Mich 544, 552- 553; 287 NW2d 178 (1980); Stevens v Drekich, 178 Mich App 273, 276; 443 NW2d 401 (1989). Generally, a defendant's duty ends at the boundary of his premises. Stevens, supra at 276. A defendant's duty may be extended to conditions on adjacent property if the defendant has exercised possession or control over those adjacent properties. Devine v Al's Lounge, Inc, 181 Mich App 117, 120; 44
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