Docket 119670 | Mich. Ct. App. | Apr 15, 1991
BALCER
v.
FORBES
Michigan Court of Appeals.
Dib & Fagan, P.C. (by Albert J. Dib), for the plaintiffs.
Still, Nemier, Tolari & Landry, P.C. (by Jeffrey *510 L. Tolari and Paul L. Kaliszewski), for Charles Forbes and Virginia and John Faltis.
Before: McDONALD, P.J., and MICHAEL J. KELLY and GRIFFIN, JJ.
GRIFFIN, J.
In this negligence action, plaintiffs appeal by leave granted from a circuit court order entering summary disposition in favor of defendants Charles A. Forbes, Virginia C. Faltis, and John Faltis pursuant to MCR 2.116(C)(8). We affirm.
The instant action arose out of an automobile-pedestrian collision which occurred on March 8, 1986. At approximately 10:30 P.M. on that date, a third party, Kahrim Zahriya, drove out of a parking lot and immediately turned the wrong way on Columbia, a westbound one-way street in the City of Detroit. After traveling approximately one block, Zahriya came to an intersection at Woodward Avenue. According to plaintiffs' complaint, Zahriya attempted a left turn at the intersection when he was struck by a southbound vehicle driven by defendant Albert B. McCoy, who allegedly was chasing another vehicle at a high rate of speed. The collision caused McCoy's vehicle to careen out of control and strike Judith and Stephen Balcer, pedestrians who were crossing Woodward Avenue. Stephen Balcer was killed, and Judith was seriously injured.
Defendant Forbes is the owner and operator of the parking lot where Zahriya had parked his car before the collision. Defendants Virginia Faltis and John Faltis are the owners and lessors of the parking lot premises. In counts IV and V of their nine-count complaint, plaintiffs contend that these defendants were negligent in that they failed to warn parking lot patrons, and Zahriya in particular, *511 that Columbia was a one-way street, thereby proximately causing plaintiffs' injuries. Defendants moved for summary disposition and, following a hearing, the trial court ruled that the instant defendants owed no duty to warn of the one-way street. Accordingly, the trial court entered summary disposition in favor of defendants pursuant to MCR 2.116(C)(8).
On appeal, plaintiffs contend that the trial court erred when it ruled that plaintiffs had not stated a cause of action in negligence against the parking lot and the lessors. We disagree.
The existence or nonexistence of a legal duty is a question of law for the court to decide. Moning v Alfono, 400 Mich. 425" court="Mich." date_filed="1977-06-15" href="https://app.midpage.ai/document/moning-v-alfono-1967970?utm_source=webapp" opinion_id="1967970">400 Mich. 425, 436-437; 254 N.W.2d 759" court="Mich." date_filed="1977-06-15" href="https://app.midpage.ai/document/moning-v-alfono-1967970?utm_source=webapp" opinion_id="1967970">254 NW2d 759 (1977); Hill v Kokosky, 186 Mich. App. 300" court="Mich. Ct. App." date_filed="1990-11-19" href="https://app.midpage.ai/document/hill-v-kokosky-2210404?utm_source=webapp" opinion_id="2210404">186 Mich. App. 300, 302; 463 NW2d 265 (1990). Duty is essentially a question whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor's part for the benefit of the injured person. Moning, supra at 438-439. Closely related to the duty issue is the matter of proximate cause. Indeed, proximate cause can be thought of as a policy determination which is often indistinguishable from the duty question. McMillan v State Hwy Comm, 426 Mich. 46" court="Mich." date_filed="1986-09-16" href="https://app.midpage.ai/document/mcmillan-v-state-highway-commission-1713330?utm_source=webapp" opinion_id="1713330">426 Mich. 46, 51; 393 NW2d 332 (1986). As the Supreme Court observed in Moning, supra at 439:
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 whether it is foreseeable that the actor's conduct may create a risk of harm to the victim, and whether the result of that conduct and intervening causes were foreseeable.
*512 In the present case, both plaintiffs and defendants properly characterize the issue as one of duty. Contrary to the parties' positions, however, the question is not the extent of the duty owed to invitees of the parking lot or motorists traveling on an adjacent roadway. Rather, the question we must resolve is what duty was owed to the plaintiffs, Judith and Stephen Balcer, pedestrians who were innocently crossing the street over a block away from defendants' premises. After thorough consideration, we conclude that no duty was owed to the plaintiffs.
In the absence of a legal duty, there is no actionable negligence. Hill, supra. In Moning, our Supreme Court noted the landmark case of Palsgraf v Long Island R Co, 248 NY 339; 162 N.E. 99" court="NY" date_filed="1928-05-29" href="https://app.midpage.ai/document/palsgraf-v-long-island-rr-co-3584293?utm_source=webapp" opinion_id="3584293">162 N.E. 99 (1928), in which the New York Court of Appeals combined the notions of duty and proximate cause and concluded that a defendant owes no duty to an unforeseeable plaintiff. See Moning, supra at 439. This principle was recently applied by a panel of this Court in Kuhn v Associated Truck Lines, Inc, 173 Mich. App. 295" court="Mich. Ct. App." date_filed="1988-08-31" href="https://app.midpage.ai/document/kuhn-v-associated-truck-lines-inc-2048281?utm_source=webapp" opinion_id="2048281">173 Mich. App. 295; 433 NW2d 424 (1988).
In Kuhn, several cases of the pharmaceutical drug Motrin fell off a delivery truck and into the flow of traffic on a public roadway. The cases were then crushed by passing traffic, causing the drug to pulverize and disperse into the air. The plaintiff, an employee of an independent contractor, was then contacted to clean up the spill. As a result of inhaling the Motrin dust, the plaintiff sustained serious injuries. In the lawsuit that followed, the plaintiff sought recovery in negligence against The Upjohn Company, the manufacturer of the Motrin. The trial court dismissed the claim against Upjohn on the ground that Upjohn had no duty to ensure safe transportation of the Motrin *513 once it relinquished control to the carrier. We affirmed this ruling, reasoning as follows:
Upjohn and the trial court quite accurately characterize Timothy Kuhn as an unforeseeable plaintiff, like the plaintiff in Palsgraf v Long Island R Co, 248 NY 339; 162 N.E. 99" court="NY" date_filed="1928-05-29" href="https://app.midpage.ai/document/palsgraf-v-long-island-rr-co-3584293?utm_source=webapp" opinion_id="3584293">162 N.E. 99 (1928), to whom no duty is owed. It is unreasonable to charge Upjohn with anticipating that Associated Truck Lines would improperly load the Motrin and cause it to fall off the truck, that the Motrin would be crushed and pulverized by passing traffic on Southfield Road, that a cloud of Motrin dust would arise from the crushed Motrin, that the County Road Commission would refuse to clean up the spill, and that a person such as Timothy Kuhn would be sent to clean up the drug spill and sustain injuries from inhaling the dust. No duty is owed to an unforeseeable plaintiff. Moning v Alfono, 400 Mich. 425" court="Mich." date_filed="1977-06-15" href="https://app.midpage.ai/document/moning-v-alfono-1967970?utm_source=webapp" opinion_id="1967970">400 Mich. 425, 439; 254 NW2d 759 (1977). Since no duty was owed, we need not discuss the parties' arguments concerning reasonableness of the risk and proximate cause. [Kuhn, supra at 302.]
We find this rationale applicable to the present case. We think it wholly unreasonable to charge these defendants with anticipating that one of their patrons would turn the wrong way on a one-way street, that the patron would then proceed in this fashion for a full city block, that he would unexpectedly turn into the path of a high-speed chase, that a collision would result, and that one of the speeding vehicles would be propelled in such a manner as to strike the Balcers as they were crossing the street. On these facts, we agree with the trial court that plaintiffs' complaint does not state a negligence claim against either Forbes or the Faltises.
Lastly, we find plaintiffs' reliance on Langen v Rushton, 138 Mich. App. 672" court="Mich. Ct. App." date_filed="1984-11-06" href="https://app.midpage.ai/document/langen-v-rushton-2091385?utm_source=webapp" opinion_id="2091385">138 Mich. App. 672; 360 NW2d 270 (1984), *514 to be misplaced. In that case, the defendant shopping center allegedly allowed trees in its parking lot to obscure a departing motorist's view of the traffic on an adjacent roadway. On these facts, the panel held that the shopping center owed a duty to a passing motorcyclist who collided with a vehicle leaving the parking lot, the driver of which alleged that she could not see the traffic on the road. Here, however, plaintiffs' injuries occurred a full block from defendants' exit and were precipitated by an unforeseeable superseding cause. Thus, unlike Langen, plaintiffs in the present case were plainly beyond the scope of foreseeable risks posed by any alleged defects in the parking lot exit.
Affirmed.
McDONALD, P.J., concurred.
MICHAEL J. KELLY, J. (dissenting).
The majority has decided a fact question. This is not a motion under MCR 2.116(C)(10). Summary disposition was granted pursuant to MCR 2.116(C)(8), failure to state a claim, and I believe plaintiff has clearly stated a claim. Paragraphs 35, 36, 37, and 41 through 44 of plaintiffs' complaint alleged that appellees owned and operated a parking lot, that they provided an exit on a one-way street from which patrons could foreseeably exit in either direction, that the patrons "could go in the wrong direction," and that the appellees owed a duty to warn patrons or departing traffic, or to have signs or warnings indicating the danger, failed to do so, and, as a result, caused the collision. Proximate cause is a question for the jury. Fiser v Ann Arbor, 417 Mich. 461" court="Mich." date_filed="1983-10-19" href="https://app.midpage.ai/document/fiser-v-city-of-ann-arbor-1733170?utm_source=webapp" opinion_id="1733170">417 Mich. 461, 475; 339 NW2d 413 (1983):
The determination of remoteness should seldom, if ever, be summarily determined.
*515 If this were a motion under MCR 2.116(C)(10), the majority could review a finding of the color of the light controlling the intersection of West Columbia and Woodward in the City of Detroit, which Zahriya errantly entered. As it is, we are not presented such a finding, and the trial judge did not decide the motion on that basis. I believe the majority has erred.
Furthermore, I disagree with the trial court's ruling that there is no duty as a matter of law to warn of the one-way street. To that extent, I agree with defendants' reliance on Langen v Rushton, 138 Mich. App. 672; 360 NW2d 270 (1984). A landowner creating or abutting an obvious traffic hazard which presents a serious risk of harm that is "relatively foreseeable," can have a duty to minimize that hazard or warn of its existence. (The majority may note that traffic which leaves the underground parking garage at the Third Division of the Court of Appeals is commanded to turn left. Supreme Court attendees who park in the underground parking garage at the Law Building in Lansing are likewise warned.) I would reverse.