Johnston v. Harris

• Decision Date: 17 February 1971
• Docket Number: Docket No. 8311,No. 1,1
• Citation: 30 Mich.App. 627,186 N.W.2d 752
• Parties: Reese JOHNSTON, Plaintiff-Appellant, v. Robert G. HARRIS, and National Bank of Detroit, Co-General Administrators of the Estate of Paul Cornell, Deceased, Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 752

186 N.W.2d 752

30 Mich.App. 627

Reese JOHNSTON, Plaintiff-Appellant, v. Robert G. HARRIS, and National Bank of Detroit, Co-General Administrators of the Estate of Paul Cornell Deceased, Defendants-Appellees.

Docket No. 8311.

Court of Appeals of Michigan, Division No. 1.

Feb. 17, 1971.

Released for Publication May 20, 1971.

L. S. Charfoos, Charfoos & Charfoos, Detroit, for plaintiff-appellant.

Milton Lucow, Garan, Lucow & Miller, Detroit, for defendants-appellees.

Before LESINSKI, C.J., and J. H. GILLIS and BEASLEY, JJ. ^*

BEASLEY, Judge.

Plaintiff, an elderly tenant, seeks damages from defendant apartment building owner for breach of duties to light adequately the front entrance of the building and to maintain the lock on the front door in good repair.

Plaintiff claims that these breaches of duties owned to him were the proximate cause of his being 'mugged' by an unknown assailant in the nighttime on October 7, 1965, when he was returning to his apartment. Plaintiff seeks damages for the personal injuries inflicted upon him by the mugger.

The case was tried before the court without a jury. Upon completion of plaintiff's proofs, defendant moved for a directed verdict of no cause of action. In granting defendant's motion, the trial court found as follows:

'I cannot see where there has been a breach of duty of such a palpable type on the part of the landlord to put him in jeopardy of suit. * * * On review again of my notes and a study of the pretrial brief that was filed by plaintiff the court is impelled in the direction of granting the motion for a directed verdict of no cause of action on the facts as stated and as submitted by testimony and other evidentiary matters. The court is unpersuaded that there was any degree of fault on the part of the landlord which could be declared to be the contributing or direct proximate cause for the injury that befell the plaintiff on this day in issue.'

Defendant's motion for a directed verdict upon completion of plaintiff's proofs in a nonjury case is proper under GCR 1963, 504.2. Where, as here, the trial court grants such a motion and renders judgment on the merits, the trial court is obligated to make findings of fact as provided in GCR 1963, 517.

Under GCR 1963, 517, the trial court 'shall find the facts specially and state separately its conclusions of law thereon.'

In this case, the trial judge confined himself to the above-quoted findings of fact, which fall short of full, literal compliance with GCR 1963, 517.

In Genesee Merchants Bank & Trust Co. v. Grand Packing Co. (1967), 8 Mich.App. 568, 574, 575, 155 N.W.2d 193, 196, this Court had occasion to rule on an appeal taken by a plaintiff in a nonjury case where the trial court granted defendant's motion to dismiss at the conclusion of plaintiff's proofs. This Court said:

'Clearly, the standards to be applied by trial courts sitting without a jury when a proper motion is made at the conclusion of the plaintiff's case under GCR 1963, 504.2, are different from those to be applied in jury cases upon a motion for directed verdict at the conclusion of plaintiff's case. In jury cases the court may not direct the verdict unless there has been a total failure of proof as a matter of law. But under GCR 1963, 504.2, the court may consider the facts, and if it finds that insufficient facts have been presented to justify continuation of the case, it may enter a judgment of no cause of action.

'This is what the trial court did in the instant case. The facts were insufficient in the trial court's opinion to justify continuation of the case. Plaintiff had failed in its proofs. It was fully within the power of the trial court sitting without a jury to make this factual determination under GCR 1963, 504.2.'

Review of the record in the instant case indicates that plaintiff made a Prima facie case that defendant owed a duty to plaintiff to maintain adequate lighting and door locks. There was also evidence sufficient for a Prima facie case that defendant violated these duties. The trial court did not madke specific findings of fact that defendant did not owe these duties nor that defendant did not breach these duties.

However, a different question arises with respect to whether this breach of duty by defendant was the proximate cause of the injury to plaintiff from the 'mugger.' In short, where there is an intervening or superseding cause arising from an intentional tort, can the breach of duty by defendant arising from ordinary negligence be a proximate cause of the damage and injury?

This subject is dealt with in some detail in 2 Restatements Torts, 2d, § 442B, p. 469, which provides as follows:

'Where the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability Except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor's conduct.' (Emphasis supplied.)

The above section is cited with approval in Raatikka v. Olin Mathieson Chemical Corp. (1967), 8 Mich.App. 638, 642, 155 N.W.2d 205. The comment to that section of the...