Duvall v. Goldin, Docket No. 74082

• Decision Date: 01 February 1985
• Docket Number: Docket No. 74082
• Parties: Alice and William DUVALL, Plaintiffs-Appellants, v. Morris GOLDIN, M.D., Defendant-Appellee, and Michael J. Hubbard, Defendant. 139 Mich.App. 342, 362 N.W.2d 275
• Court: Court of Appeal of Michigan — District of US

Page 275

362 N.W.2d 275

Alice and William DUVALL, Plaintiffs-Appellants, v. Morris GOLDIN, M.D., Defendant-Appellee, and Michael J. Hubbard, Defendant.

Docket No. 74082.

139 Mich.App. 342, 362 N.W.2d 275

Court of Appeals of Michigan.

Submitted June 18, 1984.

Decided Dec. 3, 1984.

Released for Publication Feb. 1, 1985.

[139 MICHAPP 345] Sommers, Schwartz, Silver & Schwartz, P.C. by Norman D. Tucker, Southfield, for plaintiffs-appellants.

Dice, Sweeney, Sullivan, Feikens, Hurbis & Foster, P.C. by Jack E. Vander Male and Dennis J. Mendis, Detroit, for defendant-appellee.

Before ALLEN, P.J., and WAHLS and WARSHAWSKY, ^* JJ.

ALLEN, Presiding Judge.

Is a physician liable to third persons injured as a result of the physician's negligence in treating a patient who, as a result of his medical condition, causes an automobile accident involving the third persons? The question raised is one of first impression and comes to us on the following facts.

On March 6, 1977 plaintiffs were involved in an accident which occurred when their vehicle was [139 MICHAPP 346] struck by a vehicle driven by Michael Hubbard. Initially, suit was brought against Hubbard alone. ¹ After discovering that Hubbard had been a patient of Dr. Goldin at the time of the collision, plaintiffs filed an amended complaint alleging that defendant Goldin knew or should have known that his patient Hubbard had had previous epileptic seizures and that Goldin had "a duty to persons operating motor vehicles on the public highway and in particular, the plaintiffs, to properly care for and treat" defendant Hubbard. The complaint alleged, inter alia, that Goldin had breached that duty by failing to prescribe or continue Hubbard on anti-epileptic medication and in failing to instruct him not to operate a motor vehicle after removing him from the anti-epileptic medication. Defendant's motion for summary judgment pursuant to GCR 1963, 117.2(1) was denied initially, but upon rehearing was granted. The trial court determined as a matter of law that defendant owed no duty to the plaintiffs.

It is well settled that a motion based on subsection (1) tests the legal sufficiency of the claim and is to be evaluated by reference to the pleadings alone. Romeo v. Van Otterloo, 117 Mich.App. 333, 323 N.W.2d 693 (1982); 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), 1984 Supp. p. 149. For purposes of the motion, all well-pled allegations are accepted as true together with any inferences or conclusions which may fairly be drawn from the facts alleged. Fidelity &amp Deposit Co. of Maryland v. Newman, 109 Mich. 620, 311 N.W.2d 821 (1981); Partrich v. Muscat, 84 Mich.App. 724, 270 N.W.2d 506 (1978). Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right of [139 MICHAPP 347] recovery, the motion should be denied. Crowther v. Ross Chemical & Mfg. Co., 42 Mich.App. 426, 202 N.W.2d 577 (1972). It must be remembered that this motion tests the legal, and not the factual, adequacy of the claim and, therefore, the court must not resolve factual disputes or consider the ability of the parties to prove their claims. Abel v. Eli Lilly & Co., 418 Mich. 311, 343 N.W.2d 164 (1984).

It is equally well settled that in a negligence action the threshold question of duty is an issue of law for the court's resolution. Prosser, Torts (4th ed.), Sec. 53, p. 324; Elbert v. Saginaw, 363 Mich. 463, 109 N.W.2d 879 (1961). A duty arises from the relationship of the parties and involves a determination of whether the defendant has any obligation to avoid negligent conduct for the benefit of the plaintiff. Moning v. Alfono, 400 Mich. 425, 254 N.W.2d 759 (1977).

In Prosser's terms, the question is "whether, upon the facts in evidence, such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other". Prosser, supra, Sec. 37, p. 206. It is apparent that resolution of the "duty" issue determines the existence and not the nature or extent of the actor's obligation. Although somewhat interrelated, those latter concepts are more properly considered in the evaluation of the actor's conduct in relation to the general and specific standards of care. See, Moning, supra. Here, we must focus on the issue of duty, for without a legal duty there is no actionable negligence. Or, stated another way, without duty, an individual will not be held liable for his negligent conduct.

Defendant claims that, regardless of how it is labeled, plaintiffs' claim clearly is based upon an allegation of medical malpractice. Relying on Rogers v. Horvath, 65 Mich.App. 644, 237 N.W.2d 595 [139 MICHAPP 348] (1975), defendant argues that in the absence of a doctor-patient relationship, there is no duty and such an action will not lie. We find, as did the trial judge, that plaintiffs' action is not founded upon medical malpractice. Moreover, we note that although it is undisputed that plaintiffs and defendant do not stand in a physician-patient relationship, neither is it disputed that defendant and Hubbard do have such a relationship. Defendant's argument fails to address the question of whether a duty, or obligation to act with due care, may arise out of the alternative, yet equally viable, relationship between defendant and Hubbard.

In our effort to resolve the question of whether the defendant doctor owed a duty of care to these third party plaintiffs, we are guided by decisions of the courts of this state and decisions from other jurisdictions which have considered the issue of liability to a third party. Courts in Michigan have recognized under a variety of factual circumstances that a third party may have a claim grounded in negligence against a defendant based upon the defendant's relationship with another party. See, e.g., Moning, supra (manufacturer, wholesaler, and retailer of manufactured product owe a legal obligation of due care to a bystander affected by the use of the product); Clark v. Dalman, 379 Mich. 251, 150 N.W.2d 755 (1967) (general contractor owed a duty in general not to endanger employees of the sub-contractor or inspectors or anyone else lawfully on the project site); Davis v. Lhim, 124 Mich.App. 291, 335 N.W.2d 481 (1983) (psychiatrist owes a duty of reasonable care to persons who are readily identifiable as foreseeably endangered by his patient); Romeo, supra (employer may owe duty to third party to supervise the activity of his employee). Contra, see, Friedman v. Dozorc, 412 Mich. 1, 312 N.W.2d 585 (1981) [139 MICHAPP 349] (attorney owes no duty of care to an adverse party in litigation).

In arriving at a determination that the particular defendant either did or did not have a duty to conduct himself in such a manner as to avoid negligent conduct toward the third-party plaintiffs, the Courts in the above-cited cases weighed the policy considerations for and against the recognition of the asserted duty. An additional factor considered in the assessment was the foreseeability that the actor's conduct would create a risk of harm to the victim. It is apparent that duty is a flexible and changing concept, one which is not "sacrosanct in itself, but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection". Prosser, supra, Sec. 53, pp. 325-326.

At the outset, we point out that although defendant Goldin is a psychiatrist, this case is not factually identical to the situations presented in Davis, supra, or Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976). Those cases may be distinguished from the present case by noting that in those cases the danger to the third party arose out of the violent or assaultive conduct of the patient and stemmed from the patient's underlying psychiatric problem. Each case involved a confidential doctor-patient communication and involved a threat of violence to a foreseeable and identifiable third party. Plaintiffs in both cases argued that the defendant doctors owed them a duty of due care which had been breached by the defendants' failure to warn or protect the third party from the danger posed by the patient.

The Courts in Davis and Tarasoff found that each defendant (psychiatrist/therapist) had a legally[139 MICHAPP 350] cognizable duty to the third parties, based on their relationships with their patients, to warn the third parties that the patient posed a threat of violence to the third parties. Although Tarasoff itself did not emphasize or expressly limit the scope of duty to only those identifiable victims, Davis clearly limited the class of persons to whom the psychiatrist owed a duty of due care. Not all those individuals who might foreseeably be injured were...