Bell & Hudson, P.C. v. Buhl Realty Co.
| Decision Date | 06 November 1990 |
| Docket Number | Docket Nos. 109190 |
| Citation | 185 Mich.App. 714,462 N.W.2d 851 |
| Parties | BELL & HUDSON, P.C., Edward F. Bell, Lester D. Hudson, Seymour Floyd, Douglas Wartell, Athina Tsaprailis, Maria Miller, Bertram Johnson, Marion Banyacsky, Sequoia DuBose, Lawrence Benton, Michelle Jenkins, Edward Kowalski, Jr., Vivian Hudson, and Lucien Hudson, a minor by Next Friend Vivian Hudson, Plaintiffs-Appellees, v. BUHL REALTY COMPANY, Carbidex Corporation, Jerry D. Luptak, Arthur E. Chambers, Beznos Realty Investment Company, individually and d/b/a Griswold Holding Company, Norman Beznos Realty Investment Company, Robert Harrington, Katherine Harrington and Cornet Industries, Defendants, and Gerald Harrington, jointly and severally, Defendant-Appellant. to 109192. |
| Court | Court of Appeal of Michigan — District of US |
Collins, Einhorn & Farrell, P.C. by Noreen L. Slank and Gerald A. Pawlak, Southfield, for Gerald Harrington.
Before MICHAEL J. KELLY, P.J., and J.H. GILLIS and GRIBBS, JJ.
This consolidated appeal arises out of the June 11, 1982, arson and shooting at the Detroit Buhl Building in which one person was killed and several others were seriously injured. Defendant Gerald Harrington (Gerald) appeals by leave granted from the denial of defendants' motions for partial summary disposition. We reverse.
At approximately 11:00 a.m., on June 11, 1982, Gerald received a telephone call at work from his sister-in-law, Katherine Harrington. Katherine told Gerald that Gerald's brother, Robert Harrington, was going to the law firm of Bell & Hudson, P.C., to demand the return of his $2,500 retainer. Bell & Hudson's offices were located in the Buhl Building. Katherine said that Robert "just left" and that he was carrying a shotgun, a pistol and a jar of gasoline.
Gerald believed it would take Robert some time to reach the downtown office. He decided to walk over to Bell & Hudson's offices, approximately five minutes away, to warn them about his brother. Before he left, Gerald telephoned a family-owned party store to see if Robert was there. Gerald left for Bell & Hudson's office one or two minutes after receiving Katherine's telephone call.
When Gerald arrived at the Buhl Building, he stopped to check the building directory for Bell & Hudson's suite number. While he was standing in front of the directory he heard someone shout to a security guard that a shot had been fired in Bell & Hudson's office. Gerald went up the elevator and arrived in Bell & Hudson's reception area at approximately 11:15 a.m. Gerald found his brother Robert in one of the corridors. Robert was in a crouched position, holding a shotgun. By the time Gerald arrived, Robert had already used the gasoline to start a fire in the offices and had already killed Eve August and wounded Edward Bell. Several other firm employees suffered serious injuries when they fell from the eighth-floor windows in an attempt to escape the gunman and fire.
Although Robert threatened him and fired additional shots, Gerald argued and struggled with his brother until police arrived.
Robert Harrington was convicted of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and was sentenced to life imprisonment without parole.
Three separate actions were filed against Gerald Harrington and others for the personal injuries sustained during this incident. Plaintiffs generally contended that Gerald owed a duty of reasonable care to plaintiffs because of Gerald's special relationship to his brother, Robert Harrington. Plaintiffs also alleged that once Gerald rendered assistance to plaintiffs he was required to use reasonable care.
Gerald Harrington moved for summary disposition in all three cases, arguing that he owed no duty to plaintiffs to protect them from his brother. The trial court denied Gerald Harrington's motion, ruling that there was a question of fact concerning Gerald's duty that should be decided by a jury. We disagree.
The threshold question in any negligence action is whether the defendant owed a legal duty to the plaintiff. Papadimas v. Mykonos Lounge, 176 Mich.App. 40, 45, 439 N.W.2d 280 (1989), lv. den. 433 Mich. 909 (1989); Cook v. Bennett, 94 Mich.App. 93, 97-98, 288 N.W.2d 609 (1979). Unless the defendant owed a duty to the plaintiff, the negligence analysis cannot proceed further. Id. "Duty is essentially a question of 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 v. Alfono, 400 Mich. 425, 438-439, 254 N.W.2d 759 (1977), reh. den. 401 Mich. 951 (1977). Questions of duty are generally for the court to decide. Moning, supra 400 Mich. at 437, 254 N.W.2d 759.
In this case, plaintiffs' theories against Gerald Harrington allege nonfeasance, or failure to act, by not calling the police or plaintiffs in a timely manner to warn them of Robert Harrington's intentions. As a general rule, a private person has no duty to protect another from a criminal attack by a third person in the absence of some special relationship between the parties or some special circumstance. Robert v. Pinkins, 171 Mich.App. 648, 652, 430 N.W.2d 808 (1988), lv. den. 432 Mich. 903 (1989). "Special relationships" recognized under Michigan law include landlord-tenant,Samson v. Saginaw Professional Bldg, Inc., 393 Mich. 393, 224 N.W.2d 843 (1975), proprietor-patron, Askew v. Parry, 131 Mich.App. 276, 345 N.W.2d 686 (1983), employer-employee, Blake v. Consolidated Rail Corp., 129 Mich.App. 535, 342 N.W.2d 599 (1983), residential invitor-invitee, Kroll v. Katz, 374 Mich. 364, 132 N.W.2d 27 (1965), psychiatrist-patient, Hinkelman v. Borgess Medical Center, 157 Mich.App. 314, 321-322, 403 N.W.2d 547 (1987), lv. den. 428 Mich. 905 (1987), and doctor-patient, ...
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