STATE OF MICHIGAN IN THE KENT COUNTY CIRCUIT COURT

Transcription

1 Dad Jones, as next friend of Jane Jones, a minor v. STATE OF MICHIGAN IN THE KENT COUNTY CIRCUIT COURT Plaintiff Chester Bigwig File No: IN Defendant Hon. Hea Judge / Sally B. Greedy (P34678) Sue-em Quickly (P45893) Greedy and Associates P.C. Quick Suit Attorneys P.C. Attorneys for the Plaintiff Attorneys for the Defendant 1123 W Big Street 4456 E Long Street Grand Rapids, MI Grand Rapids, MI (616) (616) / BRIEF IN SUPPORT OF DEFENDANT S MOTION FOR PARTIAL SUMMARY DISPOSITION PRELIMINARY STATEMENT Jones has filed suit against Bigwig to obtain damages for the injuries she sustained. Mr. Bigwig has filed a counter-suit for damages to an heirloom planter for $5000 caused by Jones trespass and is now seeking a partial Summary Disposition on the ground of no genuine issue of fact pursuant to MCR 2.116(C)(10). QUESTION The question for the court to answer is whether Jones was a trespasser when she knowingly entered the Bigwig property without permission. 1

2 STATEMENT OF FACTS On February 12, 2009, Jane Jones entered the backyard of the Defendant/Counter- Plaintiff, Chester Bigwig, at which time she knocked over an heirloom planter belonging to Bigwig valued at $5000. Ms. Jones was returning to pick up a book she had left at the Bigwig home earlier in the day. After knocking at the door and receiving no answer, Jones went around to the back-yard gate and entered with the intention of checking to see if the back door was unlocked. As Jones proceeded through the yard, she knocked the heirloom planter to the ground, shattering it. ARGUMENT I. Standard of review A. Under MCR 2.116(C)(10) A motion for Summary Disposition brought under MCR 2.116(C)(10), asks the court to rule in favor of the moving party without a trial because of a lack of genuine issues of fact, with the exception of the amount of damages awarded. Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law. MCR (C)(10) The Michigan Court of Appeals held in Smith v Globe Life Ins. Co., 460 Mich 446, 454; 597 NW2d 28 (1999), that summary disposition can be granted if information gained during discovery proves there is no genuine issue in respect to any material fact. It is further stated by the court in Cloverleaf Car Co. v Phillips Petroleum Co., 213 Mich App 186, 195; 540 NW2d 576 (1995) that summary disposition tests the factual basis of a claim. In the present case, 2

3 Jones status on Bigwig s property is not likely to cause a difference of opinions among reasonable minds and therefore the court should grant partial summary disposition for Bigwig. II. MS. JONES PRESENCE ON THE PROPERTY WAS UNAUTHORIZED AND THEREFORE SHE WAS TRESPASSING In order to prove trespass, Bigwig must show that he owns or possesses the property in question, that Jones physically invaded his property, that Jones intended to enter the property, and that Jones did in fact enter the property. Bigwig is entitled to Partial Summary Disposition for the following reasons. According to the deposition of Jones, she entered the backyard of the Bigwig home uninvited in an attempt to try to gain entrance to the home through a back door. The court stated in American Transmission, Inc v Channel 7 of Detroit Inc, 239 Mich App 695, 705; 609 NW2d 607 (2000) quoting Cloverleaf Car Co. v Phillips Petroleum Co., 213 Mich App 186, 195; 540 NW2d 576 (1995), [a] trespass is the unauthorized invasion upon the private property of another. In Cloverleaf, the court states that the person must intend to enter the property of another without permission. In other words, they know they do not have permission at the time that they enter the property. In the present case, Jones was aware that no one was home and that she did not have authorization to enter the backyard of Bigwig. The Supreme Court of Michigan ruled as well, in Giddings v Rogalewski, 192 Mich 319, 326; 158 NW 951 (1916) that [e]very unauthorized intrusion upon the private premises of another is a trespass. Jones was on Bigwig s private premises without permission and therefore she was trespassing. Jones intentionally entered Bigwig s property knowing she did not have permission meaning her presence was unauthorized. Jones was therefore, trespassing when she knocked over Bigwig s heirloom planter. There is no question that Bigwig is the owner of the property, that 3

4 Jones physically entered Bigwig s property, that Jones intended to enter the property, or that Jones entry to the backyard caused her to be on Bigwig s property. Jones status as trespasser is therefore not a genuine issue of material fact. Based on the above-mentioned elements, no one of reasonable mind should differ on this matter and therefore, summary disposition is justified. III. JONES IS RESPONSIBLE FOR ALL DAMAGES CAUSED BY THE TRESPASS Any person who enters the property of another without permission is trespassing and thereby responsible for all damages incurred because of the trespass. Wyant v Crouse, 127 Mich 158; 86 NW 527 (1901). In the Wyant case, a man set fire to a building in the process of his trespassing on the property and the building owner sued him for negligence because of trespassing. While the circumstances are different as to the cause of the trespass, the courts position on responsibility for damages due to trespassing is relevant in this case. The court referred to Wyant in Hartford Acc. And Indem v Krekler, 491 F2d 884, 886 (CA 8, 1974) when the court stated that A trespasser is liable to respond in damages for such injuries as may result naturally, necessarily, directly, and proximately in consequence of his wrong. As in the Wyant case, Jones caused damage while trespassing. Therefore, Jones is responsible for that damage no matter what her intent was while on Bigwig s property without authorization. CONCLUSION Regardless of the intent Jones had when she entered the property of Bigwig, her presence on the property is a trespass. Further, as stated in Wyant, because Jones was a trespasser on Bigwig s property, she is responsible for the damages incurred because of her presence. The status of Jones while on the property of Bigwig is not a genuine issue of material fact, and therefore the court should issue Summary Disposition regarding the counter-suit of Bigwig, awarding him the $5000 damages for the loss of the heirloom planter. 4

5 REQUEST FOR RELIEF The Defendant, Chester Bigwig, respectfully requests that the court grant a partial summary disposition because there is not any question of fact regarding Jones status on Bigwig s property at the time of the damage. Respectfully Submitted, Sue-em Quickly (P45893) Quick Suit Attorneys P.C. Attorneys for the Defendant 4456 E Long Street Grand Rapids, MI (616) Dated: April 9,