Klimek v. Drzewiecki
| Decision Date | 02 August 1984 |
| Docket Number | No. 72117,72117 |
| Parties | Barbara A. KLIMEK, Individually and as Next Friend of William M. Klimek, a Minor, Plantiff-Appellant, v. Boleslaw DRZEWIECKI, Defendant-Appellee, and Raymond B. Ridley, Defendant. |
| Court | Court of Appeal of Michigan — District of US |
Frank K. Penirian, Jr., Detroit, for plaintiff-appellant.
Dickinson, Mourad, Brandt, Hanlon & Becker by Gregory D. Van Tongeren, Detroit, for defendant-appellee on appeal.
Before KELLY, P.J., and BEASLEY and O'BRIEN *, JJ.
In this case, plaintiff appeals as of right from a circuit court order granting defendant Drzewiecki's motion for summary judgment. Defendant Drzewiecki moved for summary judgment pursuant to GCR 1963, 117.2, subds. (1) and (3), and the circuit court did not specify which subrule provided the basis for its decision. However, because defendant Drzewiecki filed no affidavits or other evidence contradicting any of the allegations of fact in plaintiff's complaint, and because the circuit court stated in its decision that it would assume for the purpose of resolving the motion that plaintiff's allegations of fact were true, we will treat the circuit court's decision as holding that plaintiff had failed to state a claim on which relief could be granted, GCR 1963, 117.2(1). A motion for summary judgment pursuant to GCR 1963, 117.2(1) tests the legal sufficiency of the complaint and should not be granted unless, accepting as true the factual allegations in the complaint, plaintiff's claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recovery. See, for example, Fidelity & Deposit Co. of Maryland v. Newman, 109 Mich.App. 620, 622-623, 311 N.W.2d 821 (1981).
According to plaintiff's complaint, plaintiff is the sister of defendant Drzewiecki and the mother of William M. Klimek, who was four years old at the time the incident on which this action is based took place. While plaintiff and her child were social guests at defendant Drzewiecki's house, the child was bitten on the face by a dog belonging to defendant Ridley, a neighbor of defendant Drzewiecki. Plaintiff's complaint alleged that the dog's attack was unprovoked, that defendant Drzewiecki knew at the time of the accident that the dog was loose and unsupervised, that the dog had previously bitten someone, and that the child was outside the residence without adult supervision.
Where there is no legal duty, there can be no actionable negligence. Butrick v. Snyder, 236 Mich. 300, 306, 210 N.W. 311 (1926). The arguments of defendant Drzewiecki in circuit court and on appeal have been based on a supposed lack of duty. Defendant Drzewiecki correctly points out that he did not owe to plaintiff or her child the duty that the owner of the dog owed under the circumstances presented. Compare M.C.L. Sec. 287.351; M.S.A. Sec. 12.544. However, plaintiff relies on the duty owed by occupiers of land to their social guests.
In Preston v. Sleziak, 383 Mich. 442, 453, 175 N.W.2d 759 (1970), the Court explained:
We hold that a loose, unsupervised and dangerous dog either on defendant's land or in close proximity to defendant's land...
To continue reading
Request your trial
-
Bragan ex rel. Bragan v. Symanzik
...dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved."14 In Klimek v. Drzewiecki,15 this Court found that landowners owe a duty of "reasonable or ordinary care to prevent injury to the child" This Court recently expla......
-
Kessler v. Visteon Corp.
...binding). Although the doctrine has been extended in a reported case to an injury caused by a loose dog, see Klimek v. Drzewiecki, 135 Mich.App. 115, 352 N.W.2d 361, 363-64 (1984), the open and obvious exception has been applied only in premises liability in the vast majority of cases.2 The......
-
Smaxwell v. Bayard
...she may be liable for negligence associated with a known dangerous dog allowed on her premises." Id. at 151 (citing Klimek v. Drzewiecki, 352 N.W.2d 361 (Mich. Ct. App. 1984)). However, the court of appeals stated that the plaintiff could not recover because she failed to put forth any evid......
-
Oliver v. Cook
...Restatement (Second) of Torts § 343 (1965) ). Here, Scrappy is the relevant “condition” on the land. See Klimek v. Drzewiecki , 135 Mich.App. 115, 119, 352 N.W.2d 361, 363 (1984). ¶ 30 Genuine issues of material fact exist regarding whether Mero breached his duty to Oliver as an invitee. Re......