Claims against a homeowner arising from use of a firearm by an occupant of the house; Nuisance; Distinguishing Wagner v Regency Inn Corp; Negligence; Distinguishing Ross v Glaser

The court held that “plaintiff failed to offer sufficient evidence to create a genuine issue of material fact on his nuisance claim,” and thus, the trial court did not err in granting summary disposition on this claim. It also found no error in the grant of “summary disposition on plaintiff’s negligence claim.” On appeal, relying upon Wagner, plaintiff argued “that Michigan law recognizes a landowner may be liable for a nuisance in fact arising from criminal behavior occurring on the property when such conduct is ongoing and known to the landowner.” But his reliance upon Wagner was misplaced. As plaintiff argued, “the principle announced in Wagner was that ‘creating or allowing continuing patterns of criminal activity on [the] premises which endanger’ invitees could impose liability upon the landowner.” However, plaintiff here did “not rely upon evidence demonstrating that defendant allowed continuing patterns of criminal activity on the premises; rather, plaintiff’s evidence, consisting of” an affidavit and the depositions of defendants-Le-Nguyen (the home occupant), Inhmathong (the homeowner), and plaintiff, supported “that there was a potential civil dispute between Le-Nguyen and the neighbors. Certainly, the fact that Le-Nguyen owned firearms that he kept in the house is not, by itself, a criminal activity, yet plaintiff nonetheless implies that it is. Likewise, the disputes that are alleged to have existed between Le-Nguyen and the neighbors, including Le-Nguyen yelling at the neighborhood children and removing [their] toys and bicycles from his yard are not crimes. Removing those items from his yard and allegedly throwing them in a dumpster might constitute a civil property dispute, but it certainly could not be deemed to equate to the type of ongoing criminal activity that was the subject of the civil action in Wagner.” Plaintiff also argued “that contradictions between the contents of his affidavit, the deposition testimony of Inhmathong, and the testimony of Le-Nguyen, created questions of fact as to the duty element, and, more specifically, on the issues of notice and foreseeability. However, none of the contradictions referenced by plaintiff create a genuine issue of material fact in this matter.” Plaintiff next argued “that Inhmathong was negligent because she permitted a foreseeable dangerous condition to persist, relying upon Ross[.]” Plaintiff argued “that Inhmathong was aware of Le-Nguyen’s possession of the firearm he used to shoot the six-year-old, requested that he remove it from her home, but failed to take steps to remove the guns or ‘mitigate the threat.’ The underlying facts in Ross are not reasonably comparable to the present case.” Unlike Ross, this case did “not involve allegations of misfeasance, but rather, plaintiff’s allegations against Inhmathong sound in nonfeasance.” Affirmed.