Buczkowski v. McKay

• Decision Date: 29 September 1992
• Docket Number: Docket No. 89770,No. 4,4
• Parties: Anthony BUCZKOWSKI, Plaintiff-Appellee, v. Walter William McKAY and Frederick Thomas Patton, Defendants-Appellees, and K Mart Corporation, Defendant-Appellant. Calendar
• Court: Michigan Supreme Court

Page 330

490 N.W.2d 330

441 Mich. 96

Anthony BUCZKOWSKI, Plaintiff-Appellee, v. Walter William McKAY and Frederick Thomas Patton, Defendants-Appellees and K Mart Corporation, Defendant-Appellant.

Docket No. 89770.

Calendar No. 4.

Supreme Court of Michigan.

Argued Jan. 7, 1992.

Decided Sept. 29, 1992.

Thomas, Garvey, Garvey & Sciotti by Robert F. Garvey, St. Clair Shores, (Bendure & Thomas, Mark R. Bendure, of counsel), Detroit, for plaintiff.

Michael E. Thoits, Plunkett, Cooney, P.C. by Ernest R. Bazzana, Detroit, for defendant McKay.

Bodman, Longley & Dahling by Theodore Souris and Robert G. Brower, Detroit, for defendant K Mart Corp.

Mark Granzotto, Detroit, and Charles P. Burbach, Southfield, amici curiae for Michigan Trial Lawyers Ass'n.

Gerald H. Acker, Southfield, Dennis A. Henigan, and Judith Bonderman, Washington, D.C., amici curiae for Center to Prevent Handgun Violence Legal Action Project.

Monica Farris Linkner, Berkley, amici curiae for Save our Sons and Daughters.

Dickinson, Wright, Moon, Van Dusen & Freeman by Robert W. Powell, Detroit, amici curiae for Michigan Defense Trial Counsel.

BOYLE, Justice.

We granted leave in this case to determine whether to impose a duty on a retailer to protect a bystander injured by the use of shotgun ammunition it sold to defendant McKay while McKay was intoxicated, and whether the sale of the ammunition was a proximate cause of the plaintiff's injury. Because the product sold was neither defective nor inherently dangerous, and because the Legislature has not defined a class of purchasers who we may deem legally incompetent to buy ammunition, we find that the retailer did not have a legal duty to protect plaintiff, a member of the general public, from the criminal act of the defendant. Because we find no antecedent legal duty, we need not reach the issue of proximate cause. Accordingly, we reverse the decision of the Court of Appeals and remand the case to the trial court with directions that it enter judgment in favor of defendant K mart.

I

Plaintiff was injured by a shotgun slug intentionally fired by William McKay that ricocheted off the plaintiff's parked vehicle. The ammunition was fired from McKay's shotgun several hours after the time of the purchase, and many miles away from the retailer's premises. McKay testified that he had engaged in a day-long drinking spree and could not remember the gender of the sales clerk and could not identify the box of shells he purchased. He testified that he remembered retrieving the shells from a self-serve shelf at K mart and purchasing them without speaking to anyone. He did not recall if he showed any signs of intoxication, but assumed he looked a mess after his day-long beer-drinking activities.

McKay spent the next several hours drinking and at approximately 10:45 p.m., drove to the Buczkowski home intending to shoot out the back window of the plaintiff's parked truck. He fired one shot which ricocheted off the wheel of the truck and struck Buczkowski, who happened to be in his back yard at the time. Plaintiff sustained injuries to his hands and eventually had his right ring finger amputated and his left wrist surgically fused.

A jury awarded Buczkowski $1.5 million in damages. Defendant K mart's motions for summary disposition, directed verdict, and judgment notwithstanding the verdict were denied. At trial, the court found that K mart's internal policy of not selling ammunition to intoxicated customers was sufficient evidence to impose a legal duty on the retailer. ¹

The Court of Appeals concluded that a retailer of a product owes a duty of due care to a bystander affected by that product and that it is for the jury to determine whether the retailer created an unreasonable risk of harm. With regard to the issue of proximate cause, the Court found that McKay's conduct was foreseeable and, therefore, that the issue was properly submitted to the jury. Finally, the panel reversed the trial court's order denying defendants' motion for remittitur and remanded the matter to the trial court for reconsideration of that motion in light of this Court's recent decision on the issue in Palenkas v. Beaumont Hosp., 432 Mich. 527, 443 N.W.2d 354 (1989). Unpublished opinion per curiam of the Court of Appeals, decided July 23, 1990 (Docket Nos. 113420, 113888).

We granted leave to appeal limited to the issues whether K mart owed a duty to protect Buczkowski when it sold shotgun ammunition to McKay while McKay was intoxicated, and whether the sale of the ammunition was the proximate cause of plaintiff's injury. 437 Mich. 1035, 471 N.W.2d 558 (1991).

II

The plaintiff claims an interest in being free from the injury that resulted from the criminal misuse of a product sold by K mart to an allegedly incompetent customer. ² For the reasons stated below, we find that it did not.

A

For purposes of this case we distinguish between duty as the problem of the relational obligation between the plaintiff and the defendant, and the standard of care that in negligence cases is always reasonable conduct. Thus, the duty to use "reasonable care" is the standard for liability rather than the antecedent conclusion that a particular plaintiff has protection against a particular defendant's conduct, or that a particular defendant owes any specific duty to a particular plaintiff. ³ Duty is actually a " 'question of whether the defendant is under any obligation for the benefit of the particular plaintiff' and concerns 'the problem of the relation between individuals which imposes upon one a legal obligation for the benefit of the other.' " Friedman v. Dozorc, 412 Mich. 1, 22, 312 N.W.2d 585 (1981); Prosser & Keeton, Torts (5th ed), Sec. 53, p. 356. " 'Duty' is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." Id., p. 358. See also Friedman v. Dozorc, supra, and Antcliff v. State Employees Credit Union, 414 Mich. 624, 631, 327 N.W.2d 814 (1982). ⁴

Courts take a variety of approaches in determining the existence of a duty, utilizing a wide array of variables in the process. Frequently, the first component examined by the court is the foreseeability of the risk. However, other considerations may be, and usually are, more important. For example, in Samson v. Saginaw Professional Bldg., Inc., 393 Mich. 393, 406, 224 N.W.2d 843 (1975), we stated:

"[T]he mere fact that an event may be foreseeable does not impose a duty upon the defendant to take some kind of action accordingly. The event which he perceives might occur must pose some sort of risk of injury to another person or his property before the actor may be required to act. Also, to require the actor to act, some sort of relationship must exist between the actor and the other party which the law or society views as sufficiently strong to require more than mere observation of the events which unfold on the part of the defendant. It is the fact of existence of this relationship which the law usually refers to as a duty on the part of the actor." ⁵

Where foreseeability fails as an adequate template for the existence of a duty, ⁶ recourse must be had to the basic issues of policy underlying the core problem whether the plaintiff's interests are entitled to legal protection against the defendant's conduct. ⁷ Justice Talbot Smith incisively described the duty inquiry and its relationship to foreseeability:

"[T]he legal problem in this case ... involves not hindsight but foresight, the problem of 'duty.' Was [the] action foreseeable by ... the defendants here? Of course not.... Nevertheless, will we say that it was? A court can, of course, always simply hang its hat on the wall and say that anyone can foresee anything, for example here, specifically that Gordon would commit a crime.... But this is purely fictional.... It is my opinion that a modern court, if it is to employ fictions, should state frankly the considerations of policy justifying the result ordained by the fiction...." May v. Goulding, 365 Mich. 143, 155-156, 111 N.W.2d 862 (1961) (Souris, J., dissenting and adopting Justice Smith's opinion as his own). (Emphasis in original.)

Whether a retailer has a duty to protect a member of the general public from the criminal act of a customer depends on the relationship between the parties, the nature and foreseeability of the risk, and any other considerations that may be relevant on the issue. ⁸

B

Our ultimate decision turns on whether a sufficient relationship exists between a retailer and a third party to impose a duty under these circumstances. The duty to protect others against harm from third persons is based on a relationship between the parties. Prosser & Keeton, Sec. 56, p. 385. ⁹ The relationship in this case is simply that of retailer and customer, where the customer later criminally injured an innocent bystander using a product purchased from the retailer that was neither defective nor inherently dangerous. ¹⁰ The plaintiff claims that it is reasonably foreseeable that an intoxicated person will use ammunition to injure another person. However, the plaintiff has not alleged that the defendant marketed ammunition to a known criminal, and the customer here intentionally and criminally shot at the plaintiff's vehicle and injured the plaintiff. Thus, while it may be acknowledged that many criminal acts are committed by persons under the influence of intoxicants, the issue here is not whether it is foreseeable that an intoxicated customer may injure another with a nondefective product, but whether a retailer in the supermarket setting presented should be liable for a clerk's failure to foresee a customer's criminal purpose. Recognizing such a duty would place on the retailer a duty to discover each customer's fitness to purchase any product that could conceivably harm unknown third parties. ¹¹ As Justice Smith said, "was [the result]...