                           STATE OF MICHIGAN

                            COURT OF APPEALS



JUDITH COLE,                                                         UNPUBLISHED
                                                                     March 24, 2016
               Plaintiff-Appellant,

v                                                                    No. 325632
                                                                     Tuscola Circuit Court
DAVID JARDINE and CLAUDIA JARDINE,                                   LC No. 13-027984-NO

               Defendants-Appellees.


Before: K. F. KELLY, P.J., and FORT HOOD and BORRELLO, JJ.

PER CURIAM.

         Plaintiff appeals as of right the trial court order granting summary disposition in favor of
defendants in this case involving premises liability. The trial court erred as to the legal basis on
which to grant summary disposition, however, for the reasons set forth in this opinion, we affirm
the trial court’s grant of summary disposition.

                                       I. BACKGROUND

        Plaintiff is the girlfriend of defendant Claudia Jardine’s brother, Barry Popp. Plaintiff
and Popp own approximately 40 acres and within those 40 acres leased one acre of land to
defendants in 1990. Defendants placed a trailer home on the leased property, which was visible
from plaintiff’s home. Defendants utilized the trailer home sporadically and did not use it as a
permanent residence. In 2007, plaintiff and defendants had a falling out over the ownership of
the lease property, and as a consequence, defendants stopped visiting the trailer home. There
was some testimony that plaintiff was asked by defendants to watch over the trailer in order to
prevent break-ins when defendants were not present. According to deposition testimony, this
“arrangement” was allegedly pursuant to a request defendants made when they first moved the
trailer onto the property. Popp also maintained the lawn and shoveled snow on the leased
property in order to make it appear occupied. This was also purportedly at the request of
defendants. In October 2011, plaintiff went to check the security of defendants’ trailer home
because she suspected a break-in and observed that a vehicle had entered and exited the
premises. She suffered injuries when the stairs leading to the porch of defendant’s trailer
collapsed.

     Plaintiff filed a complaint alleging ordinary negligence, and defendants filed a motion for
summary disposition pursuant to MCR 2.116(C)(7), (8), and (10). Defendants argued that

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plaintiff’s claim actually sounded in premises liability, and that they did not breach any duty
owed to plaintiff as a trespasser or licensee. Defendants further asserted that any defect in the
stairs was open and obvious if the stairs were visibly deteriorated, and they had no notice of any
defect if it was latent because they had not visited the property since 2007. In response, plaintiff
argued that summary disposition was premature because discovery was not over, she had yet to
take defendants’ depositions, and she had an outstanding discovery request. Plaintiff further
asserted that issues of fact regarding whether defendants had possession and control over the
premises were present at the time of the trial court’s grant of summary disposition.

       The trial court denied defendant’s motion under MCR 2.116(C)(8), but it granted
defendant’s motion under (C)(10).1 The trial court determined that plaintiff’s claim sounded in
premises liability rather than negligence, but it held that not enough evidence was presented to
determine plaintiff’s legal status or the condition of the allegedly defective stairs. Instead, the
court determined that summary disposition was proper because defendants did not visit the
property since 2007 and, therefore, gave up the requisite dominion and control over the property
required for a premises liability claim. Plaintiff filed a motion for reconsideration that cited
evidence taken from defendants’ newly taken depositions, but the trial court denied the motion.
This appeal followed.

                                  II. STANDARD OF REVIEW

        This Court reviews de novo a grant of a motion for summary disposition under MCR
2.116(C)(10). MEEMIC Ins Co v DTE Energy Co, 292 Mich App 278, 280; 807 NW2d 407
(2011). The motion “tests the factual support for a claim and should be granted if there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter of
law.” Id. “A genuine issue of material fact exists when the record, giving the benefit of
reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might
differ.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). When reviewing
a motion for summary disposition under MCR 2.116(C)(10), we consider “affidavits, pleadings,
depositions, admissions, and other documentary evidence submitted by the parties in the light
most favorable to the party opposing the motion.” Greene v A P Prods, Ltd, 475 Mich 502, 507;
717 NW2d 855 (2006) (internal quotation marks and citations omitted).

                                          III. ANALYSIS

        Plaintiff first argues that the trial court erred in granting defendant’s motion for summary
disposition on the ground that defendants relinquished the necessary dominion and control over
the premises. Plaintiff’s assertions are correct; the trial court did err in concluding as a matter of
law that defendants relinquished the requisite control of the property necessary to sustain a
premises liability action. “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)


1
 We note that defendant’s brief mentioned but did not address summary disposition under MCR
2.116(C)(7), and the trial court’s order did not address MCR 2.116(C)(7).


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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 NW2d 335 (2006).
Additionally, premises liability is “conditioned upon the presence of both possession and control
over the land.” Kubczak v Chem Bank & Trust Co, 456 Mich 653, 660; 575 NW2d 745 (1998).
The “unity of possession and control . . . is dispositive.” Merritt v Nickelson, 407 Mich 544,
553; 287 NW2d 178 (1980).

       In the context of a premises liability action, the terms “possession” and “control” have
been defined as follows:

               Black’s Law Dictionary (7th ed) defines “possession,” in this context, as
       “[t]he right under which one may exercise control over something to the exclusion
       of all others” (emphasis added). . . . Random House Webster’s College
       Dictionary (1995), p 297, defines “control” as “exercis[ing] restraint or direction
       over; dominate, regulate, or command.” Similarly, Black’s Law Dictionary
       defines “control” as “the power to . . . manage, direct, or oversee.” [Derbabian v
       S & C Snowplowing, Inc, 249 Mich App 695, 703-704; 644 NW2d 779 (2002).]

        Here, there was a question of fact regarding whether defendants retained possession and
control of the property. Neither party disputes that defendants maintained the lease on the
property and had legal possession of the property.2 Therefore, the present dispute presents this
Court with the question of whether defendants exercised control over the property. Plaintiff’s
testimony indicated that defendants stopped visiting the trailer home in 2007, and the cause of
action arose in October 2011. Thus, defendants had not been to the property for approximately
four years. The trial court held that defendants’ years-long absence effectively surrendered the
type of dominion and control required to establish premises liability. The trial court also noted
that plaintiff and Popp maintained and monitored the grounds surrounding the trailer because
defendants were not exercising control over the property.

        Yet, plaintiff testified that Popp cut the grass and shoveled the snow on defendants’
property at Claudia’s request so that the trailer would appear occupied. She testified that Claudia
made this request “[r]ight from the beginning,” which presumably meant the beginning of the
lease in 1990. She also averred that defendants asked her to watch the trailer when they were not
present to prevent break-ins beginning in 1990. She further averred that defendants never
retracted these requests. Viewed in the light most favorable to plaintiff, this evidence creates a
question of fact regarding whether defendants maintained control of the property by requesting
that plaintiff and Popp maintain and watch the property in their absence. Consequently, the trial
court erred when it determined as a matter of law that defendants relinquished control of the
property. Because we find that the trial court erred in this determination, we need not reach
plaintiff’s other arguments relating to the propriety and timing of the trial court’s grant of
summary disposition based on this issue.



2
  The exact nature and extent of the lease, not being necessary to decide this matter, remain
somewhat unclear.


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        Notwithstanding the trial court’s error, summary disposition was appropriate on
alternative grounds that were presented to the trial court. On appeal, this Court can affirm
summary disposition on alternative grounds presented to the trial court. Adell Broadcasting v
Apex Media Sales, 269 Mich App 6, 12; 708 NW2d 778, (2005). Defendants argue on appeal
that plaintiff was either a trespasser or licensee, and in either case, plaintiff failed to put forth any
facts on which the trial court could make a finding that defendants breached its duty to plaintiff.
It is well-settled that “[A] landowner’s duty to a visitor depends on that visitor’s status.” Stitt v
Holland Abundant Life Fellowship, 462 Mich 591, 596; 614 NW2d 88 (2000). Our Supreme
Court defined a licensee and the appropriate standard of care as follows:

                 A “licensee” is a person who is privileged to enter the land of another by
        virtue of the possessor’s consent. A landowner owes a licensee a duty only to
        warn the licensee of any hidden dangers the owner knows or has reason to know
        of, if the licensee does not know or have reason to know of the dangers involved.
        The landowner owes no duty of inspection or affirmative care to make the
        premises safe for the licensee’s visit. . . . [Id.]

       Viewing the evidence in the light most favorable to plaintiff, she was a licensee that had
defendants’ implied permission to enter onto the property to watch over it and protect it from
break-ins.3 Even assuming that plaintiff was a licensee, defendants owed no duty to inspect or
make the premises safe. Instead, defendants only had a duty to warn of hidden dangers that they
knew or had reason to know about if the licensee did not know or have reason to know of the
dangers. Plaintiff adduced no evidence that defendants knew or should have known about the
allegedly deteriorating stairs. In fact, defendants produced plaintiff’s own testimony that
defendants had not visited the property since 2007. Therefore, defendants could not know or




3
  We are mindful that in the trial court plaintiff asserted that she was an “invitee” because
defendants’ request that she watch over the property came “around the time of negotiating the
lease,” which indicated a business purpose. However, in order to establish invitee status and the
accompanying higher duty of care, a plaintiff must “show that the premises were held open for a
commercial purpose.” Stitt, 462 Mich at 604. Further our Supreme Court stated that: “It is the
owner’s desire to foster a commercial advantage by inviting persons to visit the premises that
justifies imposition of a higher duty. In short, we conclude that the prospect of pecuniary gain is
a sort of quid pro quo for the higher duty of care owed to invitees. Thus, we hold that the
owner’s reason for inviting persons onto the premises is the primary consideration when
determining the visitor’s status: In order to establish invitee status, a plaintiff must show that the
premises were held open for a commercial purpose.” Id. Plaintiff never adduced evidence that
defendants held open the property for a commercial purpose, or otherwise paid her or Popp for
maintaining or watching over the property. Therefore, was no evidence presented from which
this Court could conclude that plaintiff satisfies our Supreme Court’s definition of “invitee” as
announced in Stitt. Additionally, if plaintiff was a trespasser and entered without permission,
then defendants only owed a duty to refrain from injuring her by willful and wanton misconduct.
Id. at 596.


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have reason to know about the allegedly deteriorating stairs. Plaintiff could not demonstrate that
defendants breached any duty, which negates her premises liability claim.

        Plaintiff also argues that summary disposition in this matter was premature. We disagree
with plaintiff’s assertion that summary disposition is premature, particularly under the holding
set forth by this Court. Generally, summary disposition is premature if granted before discovery
on a disputed issue is complete. Dimondale v Grable, 240 Mich App 553, 566; 618 NW2d 23, lv
den 463 Mich 943 (2000). “However, the mere fact that the discovery period remains open does
not automatically mean that the trial court’s decision to grant summary disposition was untimely
or otherwise inappropriate.” Marilyn Froling Revocable Living Trust v Bloomfield Hills Country
Club, 283 Mich App 264, 292; 769 NW2d 234, lv den 485 Mich 880 (2009), recon den 485 Mich
1013 (2009). “The question is whether further discovery stands a fair chance of uncovering
factual support for the opposing party’s position.” Id.

        By plaintiff’s own admission, defendants had not visited the trailer since 2007.
Consequently, further discovery did not “stand a fair chance” of uncovering information that
would show that defendants knew or should have known about the allegedly deteriorating stairs.
Absent such a showing, plaintiff could not recover as a licensee. Further, plaintiff’s motion to
compel discovery related to requests for receipts from utilities, taxes, and insurance paid in
relation to the leased property. Those items might have related to defendants’ possession and
control of the premises, but they are immaterial to the issue of defendants’ knowledge of the
allegedly defective stairs.

       Affirmed. No costs are awarded. MCR 7.219(A).



                                                            /s/ Kirsten Frank Kelly
                                                            /s/ Karen M. Fort Hood
                                                            /s/ Stephen L. Borrello




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