Tripp v. Baker

1

CHESTER TRIPP III, Plaintiff-Appellant/Cross-Appellee, v. CARRIE BAKER, Defendant/Cross-Defendant/Cross-Plaintiff-Appellee/Cross-Appellant, and MATTHEW POLLACK and MELISSA POLLACK, Defendants/Cross-Defendants/Cross-Plaintiffs-Appellees/Cross-Appellants/Cross-Appellees.

No. 360960

Court of Appeals of Michigan

April 13, 2023

Lenawee Circuit Court LC No. 2020-006498-NO

Before: Cameron, P.J., and Jansen and Borrello, JJ.

Cameron, P.J.

In this case involving injuries from a dog bite, the parties appeal the trial court's order partially granting summary disposition under MCR 2.116(C)(8) and (10). Plaintiff Chester Tripp III, also appeals the trial court's order denying his motion for reconsideration. Because there is no error requiring our reversal, we affirm.

I. BACKGROUND AND PROCEDURAL HISTORY

Tripp filed this lawsuit after defendant, Carrie Baker's, dog bit Tripp on his hand while he was visiting his mother's home. Tripp's mother's home is located on Cairns Street in Tecumseh, Michigan (the "Cairns Street property").

Baker's residence was near the Cairns Street property. Baker leased her residence from defendant, Matthew Pollack. A chain-link fence enclosed the backyard of Baker's property. At some point, Matthew installed a wooden privacy fence along part of Baker's backyard that faced the Cairns Street property.

On the day in question, Baker was playing with her dog in the backyard. She then went inside her home, leaving the dog alone in the yard. At the same time, Tripp was trimming bushes in his mother's backyard. When Tripp placed his hand on top of the chain-link fence for support, Baker's dog allegedly reached its head through a broken part of the wooden privacy fence and bit Tripp's hand as it was resting on top of the chain-link fence. Tripp's hand became severely infected and he required significant medical care.

Tripp filed a complaint, alleging liability against Baker under Michigan's dog bite statute, MCL 287.351, and for common-law negligence. He later filed an amended complaint against defendants, Matthew and Melissa Pollack (collectively, "the Pollacks"), alleging premises liability for failure to maintain Baker's property in reasonable repair. Baker and the Pollacks moved for summary disposition. They contended that they were not liable for Tripp's injuries because he was trespassing at the time. The Pollacks also asserted that the danger posed by the dog was open and obvious.

The Pollacks filed a cross-claim against Baker because, in their view, Baker was solely liable for the actions of her dog. Baker filed a counter-cross-claim contending the Pollacks were liable because they were obligated to make repairs to her residence. The Pollacks moved for summary disposition of Baker's counter-claim, arguing that Matthew had a right of indemnification under the lease agreement. As to Melissa, the Pollacks argued summary disposition was appropriate because Melissa was not the owner of Baker's residence, nor was she a party to the lease agreement with Baker.

Ultimately, the trial court rejected defendants' trespassing defense. But it granted summary disposition in favor of the Pollacks as to their open and obvious defense and dismissed Baker's cross-claim. The case evaluation panel later awarded Tripp $5,000 as to Baker and the trial court entered a final order dismissing the case. Tripp moved for reconsideration of the partial grant of summary disposition, but the trial court denied the motion. This appeal followed.

II. TRIPP'S COMPLAINT

A. STANDARD OF REVIEW

The Pollacks and Baker both moved for summary disposition under MCR 2.116(C)(8) and (10). However, it is clear the trial court decided the respective motions under subsection (10). The purpose of a (C)(10) motion for summary disposition is to test the factual sufficiency of a complaint. El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 160; 934 N.W.2d 665 (2019). A trial court properly grants summary disposition under this subsection where the proffered evidence fails to establish a genuine question of fact. Maiden v Rozwood, 461 Mich. 109, 118; 597 N.W.2d 817 (1999). This Court's review of such a motion considers "affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties . . . in the light most favorable to the party opposing the motion." Id. (citation omitted). Under the burden-shifting framework of this rule:

[T]he moving party has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary evidence. The burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists. Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the nonmoving party may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists. If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted. [Quinto v Cross & Peters Co, 451 Mich. 358, 362-363; 547 N.W.2d 314 (1996) (citations omitted).]

B. TRESPASSING

The Pollacks appeal the trial court's order that concluded there remained a genuine question of fact whether the chain-link fence was located solely on Baker's property. In their view, Tripp failed to refute their trespassing defense and, therefore, summary disposition was appropriate on that basis. We agree.

Tripp's amended complaint alleged premises liability against the Pollacks, and Tripp contended that he was injured because of their negligence. The Pollacks moved for summary disposition, in part, because Tripp was a trespasser on Baker's property; therefore, they could not be found negligent for any injuries that resulted while Tripp was trespassing. The trial court denied the Pollacks' motion for summary disposition in part, concluding there remained a genuine question of fact whether Tripp was trespassing at the time of the injury.

"In a premises liability action, a plaintiff must prove the elements of negligence: (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 Props, Inc, 270 Mich.App. 437, 440; 715 N.W.2d 335 (2006). The duty owed to a visitor "depends on whether the visitor was a trespasser, licensee, or invitee at the time of the injury." Sanders v Perfecting Church, 303 Mich.App. 1, 4; 840 N.W.2d 401 (2013).

"An 'invitee' is a person who enters upon the land of another upon an invitation." Id. at 5. They are "entitled to the highest level of protection under premises liability law." Stitt v Holland Abundant Life Fellowship, 462 Mich. 591, 597; 614 N.W.2d 88 (2000) (quotation marks and citation omitted). As such, a landowner "has a duty of care, not only to warn the invitee of any known dangers, but the additional obligation to also make the premises safe, which requires the landowner to inspect the premises and, depending upon the circumstances, make any necessary repairs or warn of any discovered hazards." Sanders, 303 Mich.App. at 5.

By contrast, "[a] 'trespasser' is a person who enters upon another's land, without the landowner's consent. The landowner owes no duty to the trespasser except to refrain from injuring him by 'willful and wanton' misconduct." Id. at 4.

Again, the Pollacks' motion for summary disposition denied liability for Tripp's premises liability claim because Tripp was a trespasser on Baker's property at the time of his injury. Because Tripp was trespassing, they owed him no duty against negligence and summary disposition was appropriate on that basis. In support of this argument, they attached an affidavit from a professional surveyor which read: "Based on my knowledge, experience, and training, the chain-link fence at-issue is solely on [Baker's property]." The Pollacks also attached a boundary survey indicating the chain-link fence was only within Baker's property. Their exhibits further included Baker's deposition testimony attesting the chain-link fence was "Mr. Pollack's fence." Baker also testified that she had never met Tripp before this incident, suggesting she did not invite Tripp to her property.

The Pollacks' proffered evidence demonstrated: (1) that the chain-link fence area was located solely on Baker's property; and (2) that Tripp was not an invitee because Baker never knew of Tripp before this incident. Thus, they made a preliminary showing that Tripp was trespassing on Baker's property at the time he was bitten. Under the burden-shifting framework of a (C)(10) motion for summary disposition, the Pollacks satisfied their burden as the moving party. As such, the burden then shifted to Tripp to show that he was lawfully on the land when his injury occurred. See Quinto, 451 Mich. at 362-363.

Tripp's response to the Pollacks' motion for summary disposition only made an unsupported denial that the chain-link fence was solely on Baker's property. Specifically, he averred that "the chain link fence is a common boundary line that both neighbors acquiesced to the placement separating the boundaries." He also made the unsubstantiated suggestion that he was an invited guest to the Cairns Street property, and therefore was not trespassing at the time he put his hand on the chain-link fence. While Tripp's response to the motion included a number of exhibits, he pointed to nothing in the record demonstrating the neighbors acquiesced to the chain-link fence as the common boundary line between the properties.

Even so, the trial court denied summary disposition as to this issue because "there is a genuine dispute of...