In this premises liability action, plaintiffs appeal as of right an order granting summary disposition to defendant pursuant to MCR 2.116(0(10). We affirm.
*478 Plaintiffs’ decedent, Gary M. Berry (hereafter plaintiff), was killed in an accident on defendant’s prеmises on October 5, 1987. Defendant operates an automobile scrap yard and salvage operation in Wayne, Michigan. Plaintiff, a part-time mechanic, frequently purchased spare parts from defendant. On other occasions, he was permitted to remove parts from the yard without paying for them. He was quite familiar with the premises and was allowed to move around unescorted.
On the date of the acсident, plaintiff went to defendant’s scrap yard to obtain a battery cable for a Chrysler Cordoba, which he identified to defendant’s employees only as "a Chrysler.” He told the owner he had no money, but was allowed to go into the yard anyway.
Battery cables can usually be removed from a Chrysler vehicle from above, once the hood is open, but the Cordoba is an exception. The cables must be removed from undеrneath the car. Defendant owned both a "hi-lo truck” and another piece of equipment known as a "bobcat,” either of which could be used to raise a car body off the ground. Plaintiff, however, did not ask for dеfendant’s assistance in raising the Cordoba. Rather, without defendant’s knowledge, he obtained two "bumper jacks” from other cars in the yard and used them to elevate the front of the car. None of defendant’s employees observed plaintiff’s actions or helped him to raise the vehicle. Plaintiff was killed when one of the jacks slipped from under the car body, which fell on him and crushed his chest.
Plaintiffs brought the present action, alleging various counts of negligence against defendant. Following discovery, defendant moved for summary disposition pursuant to MCR 2.116(0(10) (no genuine issue of material fact). The trial court granted the motion. "[Defendant’s employees] had *479 no knowledge of what happened [after plaintiff went out into the yard]. There is no evidence of any knowledge. . . . [T]here was no notice that there was a dangerous condition on this lot.... ”
A motion under MCR 2.116(0(10) tests the factual support for a claim. It is properly granted only if it is impossible for the nonmovant’s claim to be supported by evidence at trial because of some deficiency that cannot be overcome.
Perez v KFC Nat'l Management Co, Inc,
On appeal, plaintiffs assert that three genuine issues of material fact preclude summary disposition. We disagree.
i
Plaintiffs first claim that the court should have allowed the jury to decide if plaintiff was a business invitee or a mere licensee. It is basic to the
*480
concept of "business invitee” that the presence of the plaintiff on the defendant’s premises be intended to benefit the landowner as well as the visitor. There must be some benefit conferred on the landowner. See, e.g.,
Gage v Ford Motor Co,
The present case is complicated because plaintiffs cannot identify the alleged "defect” on defendant’s property. Initially, plaintiffs complained of the presence of unsafe bumper jacks. On appeal, however, this argument has been abandoned. Plaintiffs now allege that the "inherent muddiness of the unlevel ground” made the use of jacks dangerous. This Court need not consider an аrgument raised for the first time on appeal.
Bloemsma v Auto Club Ins Ass’n (After Remand),
It is plain that plaintiff’s use of the jacks, not the jacks themselves, created the "hazard” (to the extent that one existed) on defendant’s property. Plaintiff, a mechanic and regular visitor to defendant’s salvage yard, knew the risks of using bumper jacks to elevate an automobile body. Rea *481 sonable minds could not find that the jacks presented a "hidden” danger of which plaintiff should havе been warned, even if he were found to be a business invitee.
n
Plaintiffs next contend that a factual question exists regarding whether defendant owed a duty to plaintiff to foresee the danger of plaintiff’s using the bumper jacks to raise the Cordoba. The existence of a legal duty is a question of law for the court to decide.
Moning v Alfono,
Ordinarily, the determination of proximate cause is left to the trier of fact, but "if reasonable minds could not differ regarding the proximate cause of the plaintiff’s injury, the court should rule as a matter of law.”
Vsetula v Whitmyer,
No Michigan case is squarely on point. Defendant relies on
Murday v Bales Trucking, Inc,
This Court affirmed the grant of summary disposition to the defendant:
[B]efore a defendant can be said to have tolеrated or acquiesced to conduct of a third party unrelated to him, he must know or have reason to know of such a condition. . . .
[P]laintiff reasons that because defendants knew children played there [on defendant’s property] it is reasonable to conclude that defendants should have also recognized that the land, which was used for excavating purposes, presented an unreasonable risk of harm. We are not persuaded .... [Id. at 753],
Two cases from other jurisdictions also illustrate how proximate cause may be decided as a matter of law.
In
Holbrook v Peric,
129 Ill App 3d 996; 85 Ill Dec 163;
Sharp v Fairbanks North Star Borough,
In the present case, plaintiff’s use of the bumper jacks to raise the Cordoba body was not reasonably foreseeable by defendant. Deposition testimony revealed that bumper jacks were not used by defendant’s employees or other customers because а hydraulic jack was available. The owner provided an affidavit that he had never known plaintiff to use bumper jacks to elevate a car body and that he had no notice that plaintiff would need to raise the unidentified Chrysler to obtain the desired part. Defendant could not have reasonably predicted plaintiff’s unusual course of action. Defendant’s alleged negligence in permitting the *484 jacks to remain in the sсrapped vehicles cannot have been the proximate cause of plaintiffs death.
Further, Michigan recognizes a duty on the part of an adult plaintiff to exercise reasonable care fоr his own safety and protection; see SJI2d 10.04 ("It was the duty of the plaintiff, in connection with this occurrence, to use ordinary care for his own safety .... ”). See also
Jaworski v Great Scott Supermarkets, Inc,
[D]efendants were entitled to assume that others using the highway in question would under the circumstances at the time use reasonable care themselves and take proper steps to avoid the risk of injury.
See also
Sheahan v Northeast I R C R Corp,
212 Ill App 3d 732; 156 Ill Dec 816;
iii
Finally, plaintiffs claim that a factual issue arises regarding whether defendant’s alleged violation of a City of Wayne ordinance, 832.15(B), constitutes "evidence of negligence.” This argument is without merit. The ordinance regulates "the stacking or piling of material within [a] junk yard,” requiring that it "not endanger . . . customers . . . . ” Plaintiffs death was not caused in any way by the "stacking or piling” of material. A jury could not pоssibly find that defendant’s alleged
*485
violation of the ordinance was even evidence of negligence. Further, violation of an ordinance has no bearing on the question of duty.
Ward v Frank’s Nursery & Crafts, Inc,
No material factual issues remain for consideration. Summary disposition was properly granted.
Affirmed. Costs to defendant.