Johnson v. Bobbie's Party Store

• Decision Date: 04 June 1991
• Docket Number: Docket No. 125204
• Citation: 189 Mich.App. 652,473 N.W.2d 796
• Parties: Lorna J. JOHNSON, Plaintiff-Appellant, v. BOBBIE'S PARTY STORE, Defendant-Appellee. 189 Mich.App. 652, 473 N.W.2d 796
• Court: Court of Appeal of Michigan — District of US

Page 796

473 N.W.2d 796

Lorna J. JOHNSON, Plaintiff-Appellant, v. BOBBIE'S PARTY STORE, Defendant-Appellee.

Docket No. 125204.

189 Mich.App. 652, 473 N.W.2d 796

Court of Appeals of Michigan.

Submitted April 3, 1991, at Lansing.

Decided June 4, 1991, at 9:05 a.m.

Released for Publication Sept. 19, 1991.

[189 MICHAPP 653] Joseph P. Kierpiec, Detroit, for plaintiff-appellant.

Francis & Wetmore by Floyd E. Wetmore, Midland, for defendant-appellee.

Before WAHLS, P.J., and HOOD and CAVANAGH, JJ.

PER CURIAM.

Plaintiff appeals as of right from a December 27, 1989, Midland Circuit Court order summarily dismissing her negligence claim against defendant, pursuant to MCR 2.116(C)(8) and MCR 2.116(C)(10). We reverse.

On August 13, 1982, defendant obtained a variance from the Midland Township Zoning Board of Appeals to enlarge its existing structure located at the corner of Poseyville Road and Ashby Road in Midland Township. A variance was required because the existing structure was nonconforming in that it lacked the requisite front-line setback. The variance was granted with the stipulation that while parking was allowed on the north (the back) and west sides of defendant's building, parking was prohibited on the south side (the front), bordered by Ashby Road, and the east side, bordered [189 MICHAPP 654] by Poseyville Road. The stipulation was imposed because of the board's concern that parking along the front and east sides of defendant's store would create a hazard for motorists entering the intersection of Poseyville and Ashby Roads, although the intersection was regulated by a flashing red signal.

Following the grant of the variance, defendant was sent a letter dated October 31, 1984, from Richard Roberts, the Midland Township building inspector and zoning enforcement officer which stated in part as follows:

One of the conditions for granting a variance to enlarge your non-conforming building at 742 Poseyville Road was that parking would be allowed only on the north and west side of the building. There have numerous [sic] occasions when parking has been permitted on the east side of the building which has created difficulty for persons entering Poseyville Road from Ashby Road to see oncoming traffic.

Please correct this safety hazard by preventing parking on the east side of the building.

* * * * * *

Please take care of [this violation] within the next thirty days.

Apparently, defendant did not correct the violation and Mr. Roberts sent a second letter to defendant, dated June 12, 1985, which stated:

In November of 1984 you received a letter from [the building department] concerning your non-compliance with the conditions of the variance granted to you by the Midland charter township zoning board to enlarge the building located at 742 Poseyville Road. Specifically I am referring to the requirement that no parking shall be allowed on the east side of the building.

In addition to the letter I have contacted you [189 MICHAPP 655] twice by telephone this year concerning this matter. On both occasions you indicated you would erect "No Parking" signs and put appropriate markings on the blacktop to discourage parking in that area. To date nothing has been done, therefore, I am turning this matter over to William Sinclair, Charter Township of Midland attorney, for further action.

Subsequently, the Midland Township Planning Commission sent a letter to Mr. Roberts, dated February 9, 1987, which stated in part:

The Planning Commission would like to bring a hazardous conditon [sic] to your attention and suggest a couple possible solutions.

Parking is routinely being allowed on the East side of the business located at the Northwest corner of Ashby and Poseyville Roads (Bobbie's Party Store). This is [a hazardous condition] and also in violation of the variance.

When the variance was allowed at the August 12, 1982 Zoning Board of Appeals meeting it was plainly stipulated that there was to be no parking ever on the East side of the store....

The variance was allowed with a stipulation as proposed in a motion ... that, "No parking in front, staying behind building on Ashby Road on the South. Parking on North and West side of property."

* * * * * *

This stipulation is not being complied with.

Mr. Roberts sent a responsive letter to the planning commission, dated February 27, 1987, stating in part:

The concern that the Planning Commission has expressed with regard to the poor visibility on the North-West corner of Poseyville and Ashby Roads as a result of vehicles parking on the East side of [189 MICHAPP 656] Bobbie's Party Store is certainly a valid concern. [The building department], as well as the Township Board is aware of this condition and it is presently being addressed.

The Midland County Road Commission has assured us that as soon as weather permits, they will install curbing where the two driveways presently exist on the North-West corner of Poseyville and Ashby Roads.

As a result of letters I sent to Shelly Harvey, owner of Bobbie's Party Store, on October 31, 1984 and June 12, 1985 regarding this situation, "No Parking" signs were placed in the store windows on the East side of the building facing the area in question. It appears that the signs have subsequently been removed.

Shelly Harvey stated in conversation that it was very difficult to prevent vehicles from parking in that area even with the "No Parking" signs posted. Blocking off the dreveways [sic] at the corner of Poseyville and Ashby Roads should alleviate this problem.

After the driveways are blocked off, we will monitor the situation to determine if the hazardous condition still exist [sic].

On June 3, 1987, plaintiff was proceeding south on Poseyville Road when a vehicle driven by Tadd Mapes pulled out onto Poseyville Road from Ashby Road in front of plaintiff, and a collision occurred. In his deposition, Mr. Mapes testified that as he approached the intersection he stopped for the flashing red signal, looked both directions, and then proceeded into the intersection. However, Mr. Mapes testified, his view was obstructed by a pickup truck parked in defendant's parking lot on the corner of Poseyville and Ashby Roads.

The occupants of the pickup truck testified in their depositions that, as Mr. Mapes approached the intersection, he failed to come to a complete stop before proceeding into the intersection.

[189 MICHAPP 657] On January 4, 1989, plaintiff filed her complaint against defendant alleging, inter alia:

(1) That defendant "owed a duty to the public and in particular, to the plaintiff, to build, maintain, design and construct its parking lot at the intersection of Poseyville Road at or near its intersection with Ashby Road and the surrounding and adjacent areas so as not to create an unreasonable risk of personal injury to the plaintiff and to the public."

(2) That defendant breached its aforementioned duties.

(3) That as a direct and proximate cause of defendant's breach, plaintiff was involved in an automobile collision.

(4) That plaintiff suffered personal injuries which included a broken leg, broken jaw, broken teeth, head contusions, and lacerations to her entire body, resulting in a serious impairment of a bodily function and permanent serious disfigurement and a loss of wages.

On December 15, 1989, following a period of discovery, a hearing was held on defendant's motion for summary disposition pursuant to MCR 2.116(C)(8) and MCR 2.116(C)(10). In support of its MCR 2.116(C)(8) motion, defendant argued that it owed no duty to plaintiff to prevent parking on defendant's private parking lot. In support of its MCR 2.116(C)(10) motion, defendant argued that absent a duty on the part of defendant, there was no breach, and thus no liability.

In response to defendant's MCR 2.116(C)(8) motion, plaintiff argued that defendant's agreement to the terms of the variance created a duty to the general public whereby defendant agreed to prohibit parking on the east and south sides of its structure. Plaintiff further argued, by analogy, that as a member of the general public, she was a [189 MICHAPP 658] third-party beneficiary of the agreement between defendant and the zoning commission.

In response to defendant's MCR 2.116(C)(10) motion, plaintiff presented the various letters from Mr. Roberts and the zoning and planning commissions which indicated that defendant failed to comply with the variance stipulation, as well as the deposition testimony of Mr. Mapes and eyewitnesses of the accident. Further, plaintiff presented evidence that defendant invited parking in the prohibited area. Thus plaintiff asserted that defendant not only failed to comply with the terms of the variance, but also affirmatively created the hazardous condition.

Following the parties' arguments, the trial court ruled as follows:

The basis of Defendant's allegations rely on whether or not Defendant owed a duty to the Plaintiff Lorna Johnson.

I have reviewed the briefs, memos, all of the files in this matter and the law involved. It is the opinion of the Court that, one, the Zoning Board of Appeals in establishing whatever it was that they were establishing, well, in establishing a variance, in establishing the variance, they requested that the manager of the store prevent parking in front.

I am of the opinion that that did not establish an official duty on Bobbie's Party Store to do that. It's not a legal duty. I'm also of the opinion that a municipality or a government entinty [sic] cannot with ordinances, rules, variances, regulations establish on a private individual or a residence or a business, however you wanted to state it, a citizen, any duties and liabilities that they have.

It is clear if there was a duty or if there was--let's just say if there was a duty, it cannot be assigned to the citizen just like it can't be assigned, as Mr. Wetmore [defendant's counsel] states in his brief, that a person has to--can't be [189 MICHAPP 659]...