Crabtree v. Vescio's, Inc.

Per Curiam.

Plaintiff Crabtree sustained an injury to his foot in October, 1966, when he stepped into a 4' x f x 20" deep hole in defendant Vescio’s store. The building housing the store had been built in 1956 by defendant Enterprise Realty and leased, first to National Poods, and, in June, 1966, to Vescio’s. Plaintiff commenced his action against Vescio’s, and Enterprise Realty was joined as a third-party defendant. Trial was had in the Jackson County Circuit Court. A motion for directed verdict of no cause of action was granted to third-party defendant Enterprise, and a jury verdict returned in favor of plaintiff against defendant Vescio’s in the amount of $33,000.

A motion made by defendant Vescio’s for new trial and remittitior was denied. Defendant Vescio’s now brings this appeal from the decision granting a directed verdict.

Defendant-appellant contends that mere proof of construction of the building here is sufficient to place the question of liability in the hands of the jury. "Without a showing by defendant Vescio’s that the defective condition was constructed by defendant Enterprise Realty or that Enterprise was aware that a defective or dangerous condition existed, the applicable case law has held that a directed verdict is properly granted. Dora v. Kroger Company (1965), 1 Mich App 286, and Paisley v. United Parcel Service (1968), 14 Mich App 301.

The agreement of June, 1966, between Vescio’s and Enterprise was an assignment of an existing lease from Enterprise to National Poods. Tbe condition thus must be shown to have existed prior to 1956, when tbe earlier agreement was made. Defendant-appellant has failed to make sncb a showing. Defendant-appellant failed to show that Enterprise bad constructed a defective or dangerous condition, and no presumption arose to that effect. There was thus insufficient evidence on tbe question of liability to warrant tbe submission of tbe matter to tbe jury.

Tbe trial court here properly found that a lessor who bas retained neither possession nor control of tbe premises cannot be held liable for an injury to an invitee of tbe lessee. A directed verdict was correctly granted for third-party defendant Enterprise Realty.

Affirmed.