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STATE OF MICHIGAN
COURT OF APPEALS


MICHAEL J. WILLIAMS and JANEEN WILLIAMS, Plaintiffs-Appellants, v HAROLD JOHNSON, WILLIAM HOLLERBACK and H & W FARMS, Defendants-Appellees, and BIRCH RUN INVESTMENT COMPANY, Defendant.

UNPUBLISHED January 12, 2006

No. 257566 Saginaw Circuit Court LC No. 03-049120-NO

Before: Bandstra, P.J., and Fitzgerald and White, JJ. PER CURIAM. Plaintiffs appeal as of right the order granting summary disposition pursuant to MCR 2.116(C)(10) in favor of defendants Harold Johnson, William Hollerback, and H & W Farms in this premises liability action. We affirm. Plaintiff Michael Williams (hereinafter plaintiff1) was employed by Birch Machinery. Defendant Johnson and his wife are the sole shareholders of Dixie Machinery, d/b/a Birch Machinery. Johnson is also president and an employee of Birch Machinery. Birch Machinery operated as a welding, machine repair, and machine manufacture shop. Across the parking lot from the Birch Machinery shop is another building. The Birch Run Investment Company, a partnership whose sole partners are Johnson and his wife, owns both buildings.

Plaintiff Janeen Williams sought damages for loss of consortium. Given the derivative nature of this claim, we will hereafter refer to Michael Williams as plaintiff.

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According to plaintiff, while working for Birch Machinery Johnson asked plaintiff to empty the contents of a planter machine into a bin located directly outside the door of the Birch Machinery shop. Plaintiff vacuumed the contents of the planter into a bin, which he then moved with a forklift into the building next to the Birch Machinery shop. The building was used by defendant H & W Farms for storage of machinery and was jointly owned by Johnson and his son-in-law, defendant William Hollerback. While inside the building plaintiff climbed on top of the load to secure it. At that point he brushed against a live electrical conduit hanging from the ceiling and received an electric shock. Plaintiff fell to the ground, lost consciousness, and sustained serious injury. Plaintiff filed a premises liability suit against defendants Johnson, Hollerback, and H & W Farms. The trial court granted summary disposition in favor of Johnson, Hollerback, and H & W Farms, finding that H & W Farms was not a legal entity and that neither Hollerback nor Johnson was a proper party of interest in the premises liability action because neither was an owner or possessor of the premises on which defendant was injured. Plaintiff first argues that the trial court erred in granting summary disposition in favor of Johnson. A trial court's decision on a motion for summary disposition is reviewed de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). The moving party must specifically identify the matters that have no disputed factual issues. MCR 2.116(G)(4); Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999). The moving party must support its position with affidavits, depositions, admissions, or other documentary evidence. Smith v Globe Life Ins Co, 460 Mich 446, 455; 597 NW2d 28 (1999). Once the moving party has met this burden, the burden shifts to the opposing party to show that a genuine issue of material fact exists. Michigan Mut Ins Co v Dowell, 204 Mich App 81, 85; 514 NW2d 185 (1994). When the burden of proof at trial would rest on the opposing party, the opposing party may not rest on mere allegations or denials in the pleadings, but must, by documentary evidence, set forth specific facts to show that there is a genuine issue for trial. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). To prevail against Johnson under a premises liability theory, plaintiff must show that Johnson was in possession and control of the premises where plaintiff was injured. Derbabian v S & C Snowplowing, Inc, 249 Mich App 695, 702, 705; 644 NW2d 779 (2002). "Ownership alone is not dispositive." Orel v Uni-Rak Sales Co, Inc, 454 Mich 564, 566; 563 NW2d 241 (1997). "Possession and control are certainly incidents of title ownership, but these possessory rights can be `loaned' to another, thereby conferring the duty to make the premises safe while simultaneously absolving oneself of responsibility." Id. A possessor of land is: "`(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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