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Where three defendants were denied summary disposition in a suit brought over a fatal fall from an escalator, two of the defendants are entitled to summary disposition based on their lack of possession or control of the premises.
“Plaintiff, Michelle Quigley, personal representative of the Estate of Thomas S. Quigley, brought this wrongful death action against defendants Detroit Airlines North Terminal Consortium, Inc. (DANTeC), AvAirPros Services, Inc. (APS), and Schindler Elevator Corporation (Schindler), after the death of plaintiff’s decedent, Thomas S. Quigley. In Docket No. 367717, APS appeals by leave granted the trial court’s order denying its motion for summary disposition under MCR 2.116(C)(8) of plaintiff’s claim against APS. In Docket No. 367740, Schindler appeals by leave granted the same order denying its motion for summary disposition under MCR 2.116(C)(8) of plaintiff’s claim against Schindler. DANTeC cross-appeals in both cases challenging the same order denying its motion for summary disposition under MCR 2.116(C)(8) of plaintiff’s claims against DANTeC. We affirm in part, vacate in part, and remand for further proceedings.
“On September 4, 2018, Thomas Quigley fell while boarding an up escalator at the North Terminal of the Detroit Metropolitan Wayne County Airport (DTW). According to plaintiff’s complaint, Quigley was carrying luggage when he stepped onto the escalator; when the luggage shifted, he lost his footing, fell, and sustained injuries that included a broken neck. He died the next day as a result of his injuries.
“Plaintiff brought this lawsuit against DANTeC, APS, and Schindler alleging theories of premises liability and negligent undertaking. According to plaintiff’s complaint, DANTeC is the entity that contracts with the Wayne County Airport Authority to operate the North Terminal at DTW, providing all maintenance and service necessary to maintain the North Terminal. Plaintiff alleged that DANTeC is liable under a theory of premises liability as a possessor and occupier of the premises, and also is liable under a theory of negligent undertaking because DANTeC failed to use ordinary care in undertaking its duties.
“Plaintiff alleged that both APS and Schindler are liable under a theory of negligent undertaking because they failed to use ordinary care in performing their duties after contracting with DANTeC. Plaintiff alleged that APS ‘contracted with DANTeC to supply the staffing needs and services necessary for DANTeC to carry out its various responsibilities at the North Terminal.’ Plaintiff alleged that Schindler had a business relationship with DANTeC and APS to provide ‘post-sale safety inspections, advice and consultation services’ with respect to the escalators in the North Terminal.
“In Docket No. 367717, APS contends that the trial court erred by denying its motion for summary disposition. APS argues that plaintiff’s claim against it is one of premises liability and that the claim fails as a matter of law. We agree.
“In this case, plaintiff labeled her claim against APS as one of ‘negligent undertaking,’ that is, ordinary negligence. However, we consider the gravamen of a claim rather than the label. … A review of plaintiff’s complaint as a whole demonstrates that plaintiff’s claim against APS is one of premises liability rather than ordinary negligence.
“Because plaintiff’s claim against APS is one of premises liability, despite the label in the complaint of ‘negligent undertaking,’ we consider whether plaintiff succeeded in sufficiently pleading her claim of premises liability. As discussed, a plaintiff may only recover from a defendant for injuries arising from a condition of the land if the defendant had legal possession and control of the premises.
“In this case, plaintiff did not allege that APS possessed and controlled the premises where Quigley allegedly was injured; plaintiff in fact asserted in the trial court and on appeal that APS did not possess or control the premises. APS is thus entitled to summary disposition with respect to plaintiff’s claim against APS, and the trial court erred by concluding otherwise.
“In Docket No. 367740, Schindler contends that it is entitled to summary disposition because plaintiff’s claim against it fails to establish a claim of negligent undertaking, that plaintiff’s claim actually sounds in products liability, and that the claim is deficient because plaintiff failed to adequately allege facts supporting that theory of liability. We conclude that Schindler is entitled to summary disposition because plaintiff’s claim against Schindler is one of premises liability, and Schindler did not possess or control the premises.
“DANTeC contends on cross-appeal that it is entitled to summary disposition under MCR 2.116(C)(8) with respect to plaintiff’s claims against it of premises liability and ordinary negligence. We agree that DANTeC is entitled to summary disposition of plaintiff’s claim of ordinary negligence, but disagree that plaintiff has failed to state a claim of premises liability against DANTeC.
“The factual allegations in the complaint thus indicate that DANTeC was responsible for operations in the North Terminal, including the operation and maintenance of the escalator at issue. Although plaintiff further alleges that APS contracted to supply DANTeC with staff and ‘services necessary for DANTeC to carry out its various responsibilities at the North Terminal,’ the allegations support a reasonable inference that DANTeC directed the staff supplied by APS.
“We affirm the order of the trial court denying DANTeC summary disposition under MCR 2.116(C)(8) of plaintiff’s premises liability claim against DANTeC. We vacate the order of the trial court denying DANTeC, APS, and Schindler summary disposition of plaintiff’s claims of ordinary negligence. We remand for entry of an order granting defendants summary disposition of plaintiff’s ordinary negligence claims and for further proceedings consistent with this opinion.”
