Plaintiff appeals from the February 11, 1994, order granting defendant Janice Robertson’s motion for summary disposition pursuant to MCR 2.116(C)(10). We affirm.
On July 9, 1990, plaintiff Nancy Babula called her sister, defendant Janice Robertson, to ask her if she would baby-sit Nancy’s nine-year-old child the following day. Janice agreed to watch the child.
On July 10, 1990, between 7:30 a.m. and 8:00 a.m., Nancy and the child arrived at Janice’s home. At that time, Janice and her husband, defendant Brian Robertson, were in their bedroom. The Robertson’s nine-year-old son was asleep in his bedroom. Janice got out of bed and let the child inside the house. Janice then went back to her bedroom to lay back down. The child wanted to watch television and was in the living room adjacent to the bedroom.
Upon returning to her bedroom, Janice told Brian to get ready for work. According to Janice, Brian had returned home several hours earlier, at approximately 5:00 a.m., drunk and unable to speak clearly. In her deposition, Janice claimed that Brian did not have any trouble getting up that morning and that she did not have an oppor *47 tunity to observe whether he was still intoxicated when he got out of bed. After Brian got up, Janice went to sleep for approximately fifteen to twenty minutes. During that time, she did not hear any unusual sounds.
While Janice was asleep, Brian molested the child. Later that day, Nancy arrived and took the child home where the child revealed what had occurred. Janice did not learn about the incident until July 11, 1990, when her parents informed her of what had occurred.
At the time of the incident, Janice and Brian had been married for almost ten years. Janice asserted in an affidavit that she had no reason to suspect that Brian would molest the child. Janice claimed that Brian had never engaged in criminal conduct before July 10, 1990. Furthermore, Janice claimed that the child did not require constant supervision within the house. In her deposition, Janice claimed that "[the child is] older . . . [and] pretty much done things [without help]. It wasn’t like [the child] was a little baby where you have to take constant care.”
After Brian and Janice were married, they lived with Donald and Evelyn Bedwell, Nancy and Janice’s parents, for seven years. The Bedwells claimed that, during that time, they were not aware of any instance in which Brian improperly touched or sexually abused the child or any other person. According to the Bedwells, Brian had always conducted himself in a "proper manner.”
On September 17, 1990, Brian pleaded guilty to a charge of second-degree criminal sexual conduct. On January 7, 1992, plaintiff filed this civil suit against Brian. Plaintiff amended her complaint on June 30, 1992, to include a negligence claim against Janice. On December 20, 1993, Janice filed *48 a motion for summary disposition pursuant to MCR 2.116(C)(8) and (10).
The trial court granted the motion pursuant to MCR 2.116(C)(10) on the grounds that Janice owed no duty to the child and that alleged negligence attributable to Janice was not the proximate cause of the child’s injury.
Appellate review of a motion for summary disposition is de novo.
Kentwood Public Schools v Kent Co Ed Ass’n,
Plaintiff argues that the trial court erred in its determination that Janice had no legal duty to the child. To establish a prima facie case of negligence, the plaintiff must prove: (1) that the defendant owed a duty to the plaintiff; (2) that the defendant breached the duty; (3) that the defendant’s breach of duty was a proximate cause of the plaintiffs damages; and (4) that the plaintiff suffered damages.
Jackson v Oliver,
As a general rule, there is no duty to protect against the criminal acts of a third person absent a special relationship between the defendant and the plaintiff or the defendant and the third person.
Marcelletti v Bathani,
Various jurisdictions have held that a baby-sitter is under a common-law duty to exercise prudent and reasonable care to protect from injury a child for whom she is caring. For example, in
Barbarisi v Caruso,
47 NJ Super 125;
[T]he defendant voluntarily assumed a duty which she was under no legal obligation to assume. It is [a] well settled principle of law that "a volunteer must act with due care.” Where one undertakes to do an act for another without compensation, the other relying thereon, he is responsible for the exercise of reasonable care in so doing when he assumes and attempts to perform a duty in which he fails. [Id. at 130. Citations omitted.]
Other cases in which courts have held that a baby-sitter owes a duty of reasonable care to a child in her care include
Armstrong v Estate of Smith,
This Court also has imposed a duty where a defendant voluntarily assumed a function that he was under no legal obligation to assume. In
Terrell v LBJ Electronics,
*51 On appeal, this Court held that the individual defendant owed a duty to the plaintiff. According to the Court:
[D]efendant Lantz had no duty, whether as the troop leader or otherwise, to transport or escort plaintiff and the other scouts from the meeting place to their homes. However, when he voluntarily performed this function, he assumed a duty to perform it carefully, not omitting to do what an ordinarily prudent person would do in accomplishing the task. . . . This duty existed regardless of -whether defendant Lantz was a troop leader or was any other individual and whether he drove the boys in his car or escorted them on foot. When defendant Lantz volunteered to drive the scouts home, he knew they were relying on him to see that they safely reached their destinations by his operating his vehicle in a careful manner. . . .
Moreover, by transporting plaintiff in his car, defendant Lantz assumed the type of control over plaintiff’s safety which creates a special relationship and gives rise to a duty to protect. [Id. at 721.]
Like the defendants in Barbarisi and Terrell, Janice voluntarily assumed a duty of care when she agreed to watch the child. By agreeing to babysit the child, Janice assumed control over the child’s safety and, thus, had a duty to use reasonable care in ensuring that the child’s well-being was not endangered. 1
However, we also find that the injuries inflicted by her husband, Brian, were wholly unforeseeable. Because they were unforeseeable, Janice’s general duty of care while baby-sitting did not extend to *52 the specific harm done in the immediate case. 2 *53 When the incident occurred, Janice had been married to Brian for almost ten years. There is no suggestion that, before molesting the child, Brian ever had engaged in any criminal behavior. The Bedwells further claimed that Brian always conducted himself in a proper manner. The mere fact that Brian was allegedly intoxicated when Janice went to sleep was not sufficient to put her on notice that Brian might injure the child.
Plaintiff argues that the proper inquiry is whether some harm, not necessarily the sexual molestation injury, was foreseeable. In support of her contention, plaintiff relies on
Clumfoot v St Clair Tunnel Co,
Foreseeability is also relevant with regard to the issue of proximate cause.
Berry v J&D Auto Dismantlers, Inc,
The questions of duty and proximate cause are interrelated because the question whether there is the requisite relationship, giving rise to a duty, and the question whether the cause is so significant and important to be regarded a proximate cause both depend in part on foreseeability. [Moning v Alfono,400 Mich 425 , 439;254 NW2d 759 (1977).]
*54 In fact, the question of proximate cause has been characterized as "a policy question often indistinguishable from the duty question.” Id. at 438.
Liability for negligence does not attach unless the plaintiff establishes that the injury in question was proximately caused by the defendant’s negligence.
Brisboy v Fibreboard Corp,
This Court finds that reasonable minds could not differ with regard to whether alleged negligence attributable to Janice was a proximate cause of the child’s injury. For the reasons discussed above, we find that Brian’s act of molesting the child was an unforeseeable intervening cause of the child’s injury.
Therefore, whether analyzed in terms of scope of duty or proximate cause, Janice is not liable in negligence for the child’s injuries. The trial court did not err in granting Janice’s motion for summary disposition.
Affirmed.
Notes
In
Buczkowski, supra
at 103, n 8, the Michigan Supreme Court noted that children are in a class historically protected under the law of torts. See, also,
Moning v Alfono,
Janice argues that to impose a duty on her for Brian’s allegedly unforeseeable actions would mean that she would have a duty to watch her husband or the child full time. In granting Janice’s motion for summary disposition, the trial court stated:
I think as I sat there an [sic] analyzed this I said, with a mother placed in a position like this it almost, to some degree one might argue, requires a wife to keep an eye on her husband almost at every particular position, not only when he is intoxicated. Someone might argue, well, good grief, if you are going to take it to that level, when he is under the influence, then someone might say, well, perhaps a mother ought to keep an eye on her husband at every particular time element.
This approach to the issue has the effect of combining the issues of duty and general and specific standards of care. In Moning, n 1, supra at 437, a majority of the Michigan Supreme Court Justices hearing the case found:
"Duty” comprehends whether the defendant is under any obligation to the plaintiff to avoid negligent conduct; it does not include — where there is an obligation — the nature of the obligation: the general standard of care and the specific standard of care.
The Court held that when the separate questions of duty, general and specific standards of care, and proximate cause are combined, the functions of the court and the jury are obscured. The Court stated:
While the court decides questions of duty, general standard of care and proximate cause, the jury decides whether there is cause in fact and the specific standard of care: whether defendants’ conduct in the particular case is below the general standard of care, including — unless the court is of the opinion that all reasonable persons would agree or there is an overriding legislatively or judicially declared public policy — whether in the particular case the risk of harm created by the defendants’ conduct is or is not reasonable. [Id. at 438.]
See, also, Terrell, supra at 722 (once the existence of a duty is established, it is for the jury to decide whether the defendant breached that duty).
If we analyze this case in terms of duty, without regard to scope, we would reach the question of standard of care. The standard of care in a negligence action is that of a person of reasonable prudence under like circumstances.
Antcliff v State Employees Credit Union,