Horn v. Arco Petroleum Co.

• Decision Date: 29 August 1988
• Docket Number: Docket No. 92639
• Citation: 427 N.W.2d 582,170 Mich.App. 390
• Parties: Peggy A. HORN, Plaintiff-Appellee, v. ARCO PETROLEUM COMPANY, a Delaware corporation, Hazine Mohammed, a/k/a Hazine Ali Mohammed, d/b/a Forman Service, and Royal Gas and Oil Company, a Michigan corporation, jointly and severally, Defendants, and Clark Oil and Refining Corporation, a Wisconsin corporation, Defendant-Appellant. 170 Mich.App. 390, 427 N.W.2d 582
• Court: Court of Appeal of Michigan — District of US

Page 582

427 N.W.2d 582

Peggy A. HORN, Plaintiff-Appellee, v. ARCO PETROLEUM COMPANY, a Delaware corporation, Hazine Mohammed, a/k/a Hazine Ali Mohammed, d/b/a Forman Service and Royal Gas and Oil Company, a Michigan corporation jointly and severally, Defendants and Clark Oil and Refining Corporation, a Wisconsin corporation Defendant-Appellant.

Docket No. 92639.

170 Mich.App. 390, 427 N.W.2d 582

Court of Appeals of Michigan.

Submitted Dec. 9, 1987.

Decided June 2, 1988.

Released for Publication Aug. 29, 1988.

[170 MICHAPP 391] Cummings, McClorey, Davis & Acho, P.C. by Edward E. Salah, Livonia, for defendant-appellant.

Before BEASLEY, P.J., and DOCTOROFF and SIMON, ^* JJ.

PER CURIAM.

In this negligence action, defendant Clark Oil and Refining Corporation appeals by leave granted from the trial court's April 28, 1986, order denying its motion for summary disposition under MCR 2.116(C)(8) and (10). We reverse.

In 1983, plaintiff Peggy Horn commenced this negligence action to recover damages for injuries allegedly sustained when her vehicle was stolen from a service station in the City of Detroit. Plaintiff alleged that she was a customer and business invitee of the service station at the time of the theft and that the perpetrator forcibly removed her from the vehicle in order to accomplish the theft. In an amended complaint, filed in 1984, plaintiff sought damages from Clark Oil based on its status as the lessor of the service station to the defendant-lessee Hazine Mohammed, doing business as Forman Service. Plaintiff alleged that defendant was negligent in failing to require Mohammed[170 MICHAPP 392] to post security guards to protect business invitees and, generally, in failing to keep the premises safe despite knowing of the dangers posed to business invitees when it leased the property to Mohammed.

Defendant Clark Oil responded to the amended complaint by moving for summary disposition on three occasions. In its third motion for summary disposition, defendant relied on recent decisions of this Court to argue that it had no duty to protect plaintiff from the criminal acts of unknown assailants. The trial court concluded that the real issue was whether defendant acted reasonably for the protection of business invitees and that summary disposition was inappropriate on this issue. Because we agree with defendant's claim that it owed no duty to plaintiff, we reverse and hold that the trial court should have granted judgment to defendant as a matter of law. MCR 2.116(I)(1).

"Duty" is a separate concept from the specific standard of care owed by an actor to an injured party. Moning v. Alfono, 400 Mich. 425, 436-437, 254 N.W.2d 759 (1977), reh. den. 401 Mich. 951 (1977). "Duty" has been defined as an "obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct towards another." Schanz v. New Hampshire Ins. Co., 165 Mich.App. 395, 402, 418 N.W.2d 478 (1988). If there is no duty, however, the question of what standard of conduct applies does not arise. Moning, supra, 400 Mich. at p. 437, 254 N.W.2d 759. The question of "duty" is one solely for the court to decide, with the essential question being 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 pp. 438-439, 254 N.W.2d 759; Simonds v. Tibbitts, 165 Mich.App. 480, 483, 419 N.W.2d 5 (1987). This question, in part, depends on [170 MICHAPP 393] whether it is foreseeable that the actor's conduct may create a risk of harm to the victim. Moning, supra, 400 Mich. at p. 439, 254 N.W.2d 759.

Here, plaintiff's claim was based on defendant Clark Oil's nonfeasance and, in particular, on its failure to require its lessee to hire private security guards. In the recent case of Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 418 N.W.2d 381 (1988), our Supreme Court noted that the common law has been slow to recognize liability for...