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STATE OF MICHIGAN COURT OF APPEALS

JAMES J. LONG and DIANE LONG, Plaintiffs-Appellees, v

UNPUBLISHED February 22, 2011

No. 294468 St. Clair Circuit Court LC No. 06-001576-NI

CITY OF PORT HURON and SEMCO ENERGY GAS COMPANY, Defendants, and PAMAR ENTERPRISE, INC., Defendant-Appellant.

Before: SAAD, P.J., and K. F. KELLY and DONOFRIO, JJ. PER CURIAM. In this premises liability action, defendant Pamar Enterprise, Inc., appeals by right from a judgment in favor of plaintiffs and from a subsequent order denying its motion to amend the judgment or in the alternative for a new trial. We reverse the judgment against defendant Pamar. I. BASIC FACTS & PROCEDURE On January 4, 2006, plaintiff James Long was jogging through the intersection of Riverside and Garfield in the city of Port Huron when he tripped on an uncovered gas valve near the curb and fell to the ground, sustaining injuries to his right knee and left elbow. Plaintiffs1 filed suit against Pamar, the city of Port Huron, and SEMCO Energy Gas Company, alleging that while Pamar was working on a sewer separation project at the

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Diane Long asserted a claim for loss of consortium.

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intersection in the fall of 2005, it negligently removed the valve cover and failed to replace the cover prior to stopping work for the winter. The trial court found in favor of plaintiffs in the amount of $120,000, but also found that James Long was 40 percent comparatively negligent. The court awarded plaintiffs $72,000, of which $5,000 was allotted to Diane Long's claim. The court found that the city of Port Huron was liable for 50 percent of the amount owed to plaintiffs, or $36,000, and that SEMCO and Pamar were liable for 25 percent of the amount owed to plaintiffs, or $18,000 each. Plaintiffs moved for taxable costs, interest and attorney fees. The trial court granted the motion and ultimately entered a judgment in favor of plaintiffs and against Pamar in the total amount of $32,862.41.2 Pamar moved for amendment of the judgment pursuant to MCR 2.517(B), or in the alternative for a new trial pursuant to MCR 2.611(A)(1)(e). Pamar argued that plaintiffs offered no proof that Pamar removed the valve cover, that it owed no duty to James Long because the condition was open and obvious, and that it lacked possession and control of the property. The trial court denied the motion. II. MOTION TO AMEND THE JUDGMENT/NEW TRIAL Pamar argues that the trial court erred in denying its motion to amend the judgment or grant a new trial because it did not owe James Long any duty since it was not in possession or control of the premises when James Long was injured. We agree. The denial of a motion to amend judgment is reviewed for an abuse of discretion. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 381-382; 775 NW2d 618 (2009). A trial court's denial of a motion for a new trial is reviewed for an abuse of discretion. Allard v State Farm Ins Co, 271 Mich App 394, 406; 722 NW2d 268 (2006). The existence of a duty is a question of law subject to de novo review. Brown v Brown, 478 Mich 545, 552; 739 NW2d 313 (2007). To establish a prima facie case of negligence, a plaintiff must prove: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation, and (4) damages. Henry v Dow Chem Co, 473 Mich 63, 71-72; 701 NW2d 684 (2005). "Under the principles of premises liability, the right to recover for a condition or defect of land requires that the defendant have legal possession and control of the premises." Morrow v Boldt, 203 Mich App 324, 328; 512 NW2d 83 (1994). Possession and control are required because "`[i]t is a general proposition that liability for an injury due to defective premises ordinarily depends upon power to prevent the injury and therefore rests primarily upon him who has control and possession.'" Kubczak v Chemical Bank & Trust Co, 456 Mich 653, 662; 575 NW2d 745 (1998), quoting Nezworski v Mazanec, 301 Mich 43, 56; 2 NW2d 912 (1942) (emphasis in original).

SEMCO and the City of Port Huron have been dismissed pursuant to stipulations, and are not parties to this appeal.

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In Derbabian v S & C Snowplowing, Inc, 249 Mich App 695; 644 NW2d 779 (2002), this Court reviewed the law of possession and control, and stated: Our Supreme Court has defined a "possessor" of land as: "(a) a person who is in occupation of the land with intent to control it or "(b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or "(c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b)." [Merritt v Nickelson, 407 Mich 544, 552; 287 NW2d 178 (1980), quoting 2 Restatement Torts, 2d,

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