Julian S Terry v. Consumers Energy Company

STATE OF MICHIGAN
COURT OF APPEALS
JENNIFER L. TERRY, Individually and as Next UNPUBLISHED
Friend of JULIAN S. TERRY, Minor, February 16, 2016
Plaintiff-Appellant,
v No. 325017
Jackson Circuit Court
CONSUMERS ENERGY COMPANY and LC No. 14-000556-NO
MICHIGAN BELL TELEPHONE COMPANY,
d/b/a AT&T MICHIGAN,
Defendants-Appellees.
Before: O’CONNELL, P.J., and OWENS and BECKERING, JJ.
PER CURIAM.
Plaintiff, Jennifer L. Terry, individually and as next friend of Julian S. Terry, appeals as
of right the trial court’s order granting summary disposition in favor of defendants, Consumers
Energy Company and Michigan Bell Telephone Company. The trial court determined that
defendants did not breach their duty of care to Terry. We affirm.
I. FACTUAL BACKGROUND
In October 2013, nine-year-old Julian was injured after he fell while climbing. Julian
testified at his deposition that he climbed branches in a tree until he could reach the iron rods on
a utility pole, then climbed using the rods and tree branches together. Julian testified that when
his foot slipped from a metal rod, he put his weight on a tree branch, which broke beneath him
and caused him to fall. Julian seriously injured his arm on the iron rod that stopped his fall. The
iron rods began over 7 feet and 7 inches above the ground.
The Terrys’ complaint alleged defendants created a dangerous condition when they
allowed a tree to grow near the utility pole, which put the iron rods within reach of children.
Defendants moved for summary disposition under MCR 2.166(C)(8) and (10), alleging in
pertinent part that they acted reasonably in placing the rods on the pole. Terry responded that the
defendants had a duty to reasonably inspect the pole and trim the tree to prevent the hazard. The
trial court granted summary disposition under MCR 2.116(C)(10) on the basis that there was no
factual dispute regarding whether defendants breached a duty to the Terrys.
II. ANALYSIS
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The Terrys contend that the trial court erred when it granted summary disposition on the
basis that defendants did not owe Julian a duty. We disagree.
This Court reviews de novo the trial court’s decision on a motion for summary
disposition. Maiden v Rozwood, 461 Mich. 109, 118; 597 NW2d 817 (1999). A party is entitled
to summary disposition under MCR 2.116(C)(10) if “there is no genuine issue as to any material
fact, and the moving party is entitled to judgment . . . as a matter of law.” A genuine issue of
material fact exists if, when viewing the record in the light most favorable to the nonmoving
party, reasonable minds could differ on the issue. Gorman v American Honda Motor Co, Inc,
302 Mich. App. 113, 116; 839 NW2d 223 (2013). To survive a motion for summary disposition,
once the nonmoving party has identified issues in which there are no disputed issues of material
fact, the burden is on the plaintiff to show that disputed issues exist. Quinto v Cross & Peters
Co, 451 Mich. 358, 362; 547 NW2d 314 (1996).
To prove negligence, a plaintiff must show that (1) the defendant owed the plaintiff a
duty of care, (2) the defendant breached that duty, (3) the plaintiff was injured, and (4) the
defendant’s breach caused the plaintiff’s injury. Henry v Dow Chemical Co, 473 Mich. 63, 71-
72; 701 NW2d 684 (2005). A party may maintain a negligence action, including a premises
liability action, only if the defendant had a duty to conform to a particular standard of conduct.
Riddle v McLouth Steel Prods Corp, 440 Mich. 85, 96; 485 NW2d 676 (1992). Generally, a
plaintiff proves that a defendant breached his or her duties by establishing that the defendant’s
actions fell below the general standard of care to act reasonably to prevent harm to others. Case
v Consumers Power Co, 463 Mich. 1, 6-7; 615 NW2d 17 (2000).
The trial court stated it best when it said, while ruling on the motion, “Quite frankly, I
cannot find a duty that would have been owed to this young man that would have been
breached.” Liability arises solely from the defendant’s duty as an owner, possessor, or occupier
of land. Buhalis v Trinity Continuing Care Servs, 296 Mich. App. 685, 692; 822 NW2d 254
(2012). In this case, there is no factual dispute that defendants’ property, the pole itself,
contained metal rods that were over 7 feet off the ground. There is no evidence that the
condition of the pole itself was dangerous. Defendants exercised reasonable care when they
placed the rods higher than even an adult could reach.
The Terrys allege that defendants had a duty to inspect the nearby trees to ensure that
they did not provide access to the power line. The Terrys misread Schultz v Consumers Power
Co, 443 Mich. 445; 506 NW2d 175 (1993). In Schultz, electricity escaped a frayed power line
and electrocuted a man holding a nearby ladder. Id. at 448. The Court held that “a power
company has an obligation to reasonably inspect and repair wires and other instrumentalities in
order to discover and remedy hazards and defects.” Id. at 451. In other words, the Schultz case
involved the escape of a utility’s property—electricity—from confinement because of the
condition of other property—wires—under the utility’s control.
In this case, the Terrys have simply failed to provide evidence to create a question of fact
regarding whether defendants acted reasonably. Liability for a condition of land arises solely
from a defendant’s status as an owner, possessor, or occupier of the land, and there is no
evidence that defendants owned or controlled the tree that Julian used to circumvent their safety
precautions. These safety precautions included not beginning the rods until over 7 feet above the
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ground, out of the reach of children and most adults. Defendants are no more responsible for the
tree that Julian used to circumvent that precaution than they would be had Julian used a ladder to
reach the rods. We conclude that the trial court properly granted summary disposition.
We affirm.
/s/ Peter D. O’Connell
/s/ Donald S. Owens
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