By Correy E. Stephenson
An estate’s claim for wrongful death can move forward on a theory of premises liability where the decedent drowned in a swamp on property where the defendant lived, a panel of the Michigan Court of Appeals has ruled, reversing summary disposition.
Jody Misch parked his camper on property that he later stated he owned with his father and invited Nicole Kenworthy to his camper one night to “talk” or “hangout.” Kenworthy’s roommate drove her to the camper and left.
After spending some time together, Misch told the decedent that she had to leave because his children were also with him in the camper.
Misch asserted his Fifth Amendment right during his deposition in the case but offered a video of his interview with the police concerning the incident. According to what he told the police, Kenworthy became erratic after he told her that she had to leave, and he noticed that she was standing in water when he instructed her not to walk further into the woods because there was a swamp nearby.
He also stated that he told Kenworthy that he did not know who else was on the property before he closed the door to his camper and slept for the night.
The next morning, Misch contacted the police and reported that Kenworthy was missing. He consented to the police searching the property and her body was found submerged in a swamp on the property.
An autopsy revealed Kenworthy’s cause of death was drowning associated with the effects of fentanyl and methamphetamine.
Kenworthy’s estate filed a wrongful death action against Misch under theories of ordinary negligence and premises liability.
Misch moved for summary disposition and the Muskegon Circuit granted it as to both theories. The estate appealed.
In an unpublished opinion, the appeals court issued a mixed decision.
Considering the ordinary negligence claim, the court pointed out that the estate ignored that Michigan law distinguishes between a claim of ordinary negligence and a claim premised on a condition of the land.
"To allege a viable ordinary negligence claim, the plaintiff must allege negligent conduct distinct from the condition of the land," the judges said.
Nor can an ordinary negligence claim be asserted when the “allegations relate to the creation of a dangerous condition on the premises caused by defendants’ failure to act.”
“In this case, it is undisputed that the decedent drowned in a swamp and a swamp is a condition of the land. Thus, plaintiff's claim sounds in premises liability, not ordinary negligence, and the trial court did not err in granting summary disposition to defendant on this claim even though it did so for a different reason.”
The court reached a different conclusion on the estate’s claim for premises liability.
Premises liability is conditioned upon the presence of both possession and control over the land, the court explained.
“It is undisputed that defendant placed his camper on the property, told the police that the property was owned by both him and his father, and consented to a police search of the property,” the court wrote. “Further, defendant argues that he told the decedent that there was a swamp on the property and that he was unsure of who else was on the property on the night that decedent died. This evidence indicates that defendant exercised at least some control over the property because he had the authority to grant the police access to the property and parked his camper on the property.”
As reasonable minds could differ about whether Misch had possession and control over the property, a genuine issue of material fact concerning the estate’s claim of premises liability remained, the court said, and the trial court erred in granting summary disposition on this issue.
The case is Farrar v. Misch ( MiLW 08-107964 , 4 pages). Judges Brock A. Swartzle, Deborah A. Servitto and Kristina Robinson Garrett sat on the panel.
The matter returns to the Muskegon Circuit Court for further proceedings.
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