                                        NOT FOR PUBLICATION
                                         File Name: 05a0116n.06
                                         Filed: February 15, 2005

                                                No. 03-2526

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT

ESTATE OF JOHN MORAN
by Vicki Moran, Personal Representative,

                 Plaintiff-Appellant,                              ON APPEAL FROM THE
                                                                   UNITED STATES DISTRICT
v.                                                                 COURT FOR THE EASTERN
                                                                   DISTRICT OF MICHIGAN
W.P. CAREY AND COMPANY, LLC, a New York
Corporation, as successor in interest to CORPORATE
PROPERTY ASSOCIATES 8, L.P., a Delaware
Limited partnership, and CORPORATE PROPERTY
ASSOCIATES 9, L.P., a Delaware Limited Partnership,

             Defendants-Appellees.
________________________________________________/

BEFORE: SUHRHEINRICH, ROGERS, and COOK, Circuit Judges.

        PER CURIAM. Plaintiff-Appellant Estate of John Moran, (“Plaintiff”) appeals the district court’s

grant of summary judgment to W.P. Carey & Co., L.L.C. (“Defendant”), on Plaintiff’s nuisance-in-fact

action against Defendant. Plaintiff also appeals the district court’s subsequent denial of plaintiff’s motion

to reinstate its negligence claim. After having examined the record and heard oral arguments, we AFFIRM

the judgment of the district court.

        In 1990, Defendant’s predecessors in interest, Corporate Property Associates, purchased the Detroit

Diesel Building from Detroit Diesel, and the same day, leased the building back to Detroit Diesel. On August

1, 2000, Moran, a pipe-fitter for Detroit Diesel, was performing repairs on the roof of the building when he

fell to his death through an open hatchway on the roof. Detroit Deisel was aware of the hatchway at the

beginning of the lease, although the hatchway was covered at that time. On November 13, 2001, Plaintiff

filed suit against Defendant alleging nuisance-in-fact and negligence. Plaintiff later agreed to dismiss the

negligence claim. On September 17, 2003, the district court entered summary judgment in favor of Defendant
 on the nuisance-in-fact claim and denied Plaintiff’s motion to reinstate its negligence claim. Plaintiff

 appealed.

         Since this is a diversity action, the law of Michigan applies. Under Michigan law, “[a] public

 nuisance involves the unreasonable interference with a right common to all members of the general public.”

 Adkins v. Thomas Solvent Co., 440 Mich. 293, 302 (1992) (citing Garfield Twp. v. Young, 82 N.W.2d 876

 (1957)). Here, Plaintiff failed to show that the improperly maintained hatchway was held open to the public.

 The Detroit Diesel Building was neither leased for a public purpose nor open to the general public. Plaintiff

 also cannot prevail under Samuelson v. Cleveland Iron Mining Company, 49 Mich. 164, 13 N.W. 499 (1882),

 because Samuelson does not support Plaintiff’s proposition that the Detroit Diesel Building is a semi-public

 facility. Therefore, the district court correctly concluded that Defendant was not liable to Plaintiff under a

 nuisance-in-fact theory.

        The district court also correctly concluded that reinstatement of the Plaintiff’s negligence claim would

be futile. Under Michigan law, “a landlord who gives up control, possession and use of the land does not have

a duty to maintain the premises in a reasonably safe condition and is not liable to persons injured on the

premises.” McCurtis v. Detroit Hilton, 242 N.W.2d 541, 543 Mich. App. (1976) (citations omitted).

Therefore, the court did not err in denying Plaintiff’s motion for reinstatement.

        For the foregoing reasons, as well as for the reasons stated in the district court’s memorandum and

order dated September 17, 2003, we AFFIRM the district court’s grant of summary judgment to Defendant

on the nuisance-in-fact claim. We also AFFIRM the district court’s judgment denying Plaintiff’s motion to

reinstate its negligence claim.




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