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June 24, 2013

MSC orders mini-oral argument on whether property owner may be liable for nuisance created by brother in possession of property

The Michigan Supreme Court will hold oral argument to consider the application for leave to appeal in In re Estate of Sholberg. Sholberg concerns whether, and under what circumstances, a property owner who is not in possession of the property and does not participate in the conduct creating an alleged nuisance may be liable for the alleged nuisance.

Terri A. Sholberg was killed while driving on Stutsmanville Road when her car collided with a horse. The horse had escaped from a stable at 5151 Stutsmanville Road. Robert and Marilyn Truman owned the property, but it was occupied by Robert's brother, Daniel Truman. The trial court granted summary disposition in favor of the Trumans. On appeal, the Court of Appeals held that the trial court erroneously found that the Trumans were not liable for nuisance because they were not in possession of the Property.

An unreasonable interference is the type of conduct that (1) significantly interferes with the public's health, safety, peace, comfort, or convenience, (2) is proscribed by law, or (3) is known or should have been known by the actor to be of a continuing nature that produces a permanent or long-lasting, significant effect on these rights. To prevail in a public nuisance action, a private actor must show he suffered a type of harm different from that of the general public. Despite the existence of a public nuisance, a defendant is only liable for damages where the defendant (1) created the nuisance, (2) owned or controlled the land from which the nuisance arose, or (3) employed another person to do work from which the defendant knew a nuisance would likely arise.

The Court of Appeals noted that Sholberg provided evidence to the trial court of at least 30 instances of animal escape between 2003 and 2010. There was evidence that the Trumans were aware of the escapes, and the subsequent complaints, and yet there was no evidence that the Trumans did anything to address the problem. In light of this record, the Court of Appeals concluded that the history of ongoing animal escapes from the Property were an unreasonable interference with the public's right to safely travel on Stutsmanville Road. Additionally, the Court of Appeals found that the decedent's death is a harm suffered by Sholberg that is different from that of the general public. Moreover, the Court of Appeals concluded that the Trumans' ownership of the Property from which the alleged nuisance arose is sufficient to bring a nuisance action against them. Thus, the Court of Appeals reversed the trial court's grant of summary disposition in favor of the Trumans regarding Sholberg's nuisance claim, and remanded the case for further proceedings.

In considering the application for leave to appeal this judgment, the Michigan Supreme Court ordered the parties to file supplemental briefs within 42 days addressing whether, and under what circumstances, a property owner who is not in possession of the property and does not participate in the conduct creating an alleged nuisance may be liable for the alleged nuisance. Additionally, the Court further ordered that the stay of the trial court proceedings previously issued on May 1, 2013 remains in effect until the completion of this appeal.

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