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146725 - In re Estate of Sholberg

In re Estate of
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Diane K. Sholberg, as Personal Representative for the Estate of Terri A. Sholberg,
Andrew P. Abood
(Appeal from Ct. of Appeals)
(Emmet – Johnson, C)
Robert Truman and Marilyn Truman,
Anthony F. Caffrey III
Daniel Truman,


Terri Sholberg was driving to work early on the morning of July 13, 2010, when her car collided with a Belgian/Percheron horse, which had escaped from its stable on a nearby farm and wandered onto the road. Both Sholberg and the horse were killed. A police officer who investigated the accident noted that the gate on the horse’s stall was secured with baling twine, which “failed to keep that horse in.”

Diane Sholberg, Terri Sholberg’s mother, sued Marilyn and Robert Truman, who owned the farm, and Robert’s brother Daniel Truman, who lived on the farm, working the land and keeping livestock. Daniel Truman, who had acquired the horse in a trade shortly before the accident, had been the subject of complaints about his animals wandering onto neighbors’ property. Sholberg claimed that the Trumans had been negligent in failing to secure the horse properly, that they were responsible for a public nuisance, and that they were liable under the Equine Activity Liability Act, MCL 691.1661, et seq.

But the trial court judge dismissed the claims against Robert and Marilyn Truman, stating, “under the circumstances of this case, there’s no situation that would properly give rise to a duty on [the Trumans] that would support any claim of negligence.” The farm was “under the possession and control of Daniel Truman” and there was no evidence to support a claim that Robert and Marilyn Truman “actively managed, supervised, maintained, possessed or controlled the subject property.” Although the Trumans owned the property, the judge concluded that their ownership “was something more in the nature of a security interest than active ownership.”

Moreover, the EALA did not create an independent basis on which Sholberg could sue Robert and Marilyn Truman, the judge held. The EALA did not apply to the Trumans because “[t]hey did not provide a horse to anyone, and the decedent in this case was not a participant who was injured as a result of equine activity on that property.”

Sholberg appealed, contending that the trial court erred in dismissing her claims against Robert and Marilyn Truman. In an unpublished per curiam opinion, the Court of Appeals affirmed in part, saying that the EALA did not create a cause of action for Sholberg. Moreover, Marilyn and Robert Truman “did not have a relationship with the decedent” which would support a negligence claim, the panel said.

But the Court of Appeals did rule that the trial court erred in finding that Marilyn and Robert Truman were not liable for nuisance because they were not in possession of the farm. The trial judge should not have dismissed that claim, the appellate panel said.

“A public nuisance is an unreasonable interference with a common right enjoyed by the general public,” the Court of Appeals explained. A party is liable for nuisance damages only “where (1) the defendant created the nuisance, (2) the defendant owned or controlled the land from which the nuisance arose, or (3) the defendant employed another person to do work from which the defendant knew a nuisance would likely arise.”

Sholberg had submitted evidence to the trial court of at least 30 instances of “animal elopement” from the farm between 2003 and 2010, which allegedly created hazards on the road where the accident occurred, the Court of Appeals noted.

“There was evidence that the Trumans were aware of the issue regarding animal elopement and that complaints had been lodged. And there was no evidence presented that the Trumans did anything to address the problem. Thus, the record supports that the ongoing elopement of animals from the Property was an unreasonable interference with the public’s right to safely travel …. Additionally, the decedent’s death is a harm suffered by Sholberg that is different from that of the general public. Moreover, the Trumans owned the Property from which the alleged nuisance arose, which is sufficient to bring a nuisance action against them. Thus, the trial court’s grant of summary disposition in favor of the Trumans regarding Sholberg’s nuisance claim was improper.”

The Trumans appealed, and in a June 21, 2013 order, the Supreme Court said it would hear oral argument “on whether to grant the application or take other action.” The Court directed the parties to address “whether, and under what circumstances, a property owner who is not in possession of the property and does not participate in the conduct creating an alleged nuisance may be liable for the alleged nuisance.”