Langen v. Rushton, Docket No. 74836

• Decision Date: 17 January 1985
• Docket Number: Docket No. 74836
• Citation: 138 Mich.App. 672,360 N.W.2d 270
• Parties: Thomas E. LANGEN, Plaintiff-Appellant, v. Nancy K. RUSHTON and The City of Ann Arbor, Defendants, and Maple Jackson Associates, a registered co-partnership, jointly and severally, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 270

360 N.W.2d 270

138 Mich.App. 672

Thomas E. LANGEN, Plaintiff-Appellant, v. Nancy K. RUSHTON and The City of Ann Arbor, Defendants and Maple Jackson Associates, a registered co-partnership jointly and severally, Defendant-Appellee.

Docket No. 74836.

Court of Appeals of Michigan.

Submitted June 6, 1984.

Decided Nov. 6, 1984.

Released for Publication Jan. 7, 1985.

Rehearing Denied Jan. 17, 1985.

Roberts & Manchester, P.C. by Thomas C. Manchester and Randall S. Schau, Ypsilanti, for plaintiff-appellant.

Douvan & Barnett by Gordon J. Barnett, Jr., Ann Arbor, for Maple Jackson Associates.

Before GRIBBS, P.J., and BRONSON and SHEPHERD, JJ.

BRONSON, Judge.

Plaintiff, Thomas E. Langen, appeals as of right from an order of summary judgment entered in favor of Maple Jackson Associates (defendant) on a negligence count. ¹

The parties have stipulated to the following facts:

"On September 18, 1981, Nancy Rushton drove her vehicle in an easterly direction out of the Maple Village Shopping Center parking area and onto North Maple Street. All vehicles, including Ms. Rushton's, leaving said shopping center parking area were required by a regular, approved, red octagonal stop sign to stop before entering North Maple Street and yield to on-coming vehicles. At the same time, plaintiff was operating his motorcycle in [sic] southerly direction on North Maple Street. By driving onto North Maple Street, Ms. Rushton drove in front of plaintiff, causing a collision between her vehicle and plaintiff's motorcycle.

"That at the time of the accident, defendant Maple Jackson owned, controlled and maintained the Maple Village Shopping Center parking area and its entrance and exit ways to North Maple Street. Separating the exit way used by Ms. Rushton and the shopping center's entrance way was a median. Existing within this median was a small tree. The median and the tree were within the area owned, controlled and maintained by defendant Maple Jackson."

Plaintiff's first amended complaint alleged in part with regard to defendant Maple Jackson:

"13. That Defendant, Maple-Jackson Associates, owed a duty to the public to design, develop and maintain its parking area in such a way as to minimize the possibility of accidents involving motor vehicles entering and leaving said parking area, and that said duty included the creation and maintenance of vehicle exits allowing an unobstructed view of southbound North Maple Street traffic at and near the various exits from its parking lot.

"14. That Defendant, Maple-Jackson Associates, intentionally and/or negligently caused and allowed various trees to be planted and to remain in the median of the entrance/exit way to said shopping center parking lot.

"15. That the location of said trees was such that Defendant, Nancy K. Rushton, when preparing to leave said parking lot and stopping at said stop sign, at the crosswalk, did not and could not have a clear and unobstructed view of on-coming traffic traveling south on North Maple Street, including Plaintiff."

On October 29, 1983, the circuit court ruled that plaintiff's allegations failed to state a claim upon which relief can be granted and entered an order of summary judgment pursuant to GCR 1963, 117.2(1). In reviewing a grant of summary judgment under GCR 1963, 117.2(1), this Court assumes that the factual allegations in the complaint are true and determines whether the claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right of recovery. Aisner v. Lafayette Towers, 129 Mich.App. 642, 645-646, 341 N.W.2d 852 (1983).

The order of summary judgment rested on the circuit court's determination that defendant Maple Jackson owed no duty to plaintiff which would support a negligence claim. "Duty is essentially a question of 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 v. Alfono, 400 Mich. 425, 438-439, 254 N.W.2d 759 (1977), reh. den. 401 Mich. 951 (1977). (Footnote omitted.) Ordinarily, the element of duty in a negligence action is one of law for the court to decide. Moning v. Alfono, supra, p. 438; Aisner v. Lafayette Towers, supra, p. 645.

In Samson v. Saginaw Professional Building, Inc., 44 Mich.App. 658, 205 N.W.2d 833 (1973), aff'd. 393 Mich. 393; 224 N.W.2d 843 (1975), this Court was asked to decide whether a landlord and owner of a building who leased space to a state mental health clinic could be held liable for injuries sustained by another tenant's employee when she was attacked by a patient of the clinic. We readily admitted that policy considerations weighed heavily in our decision to impose a duty upon the defendant landowner to the injured plaintiff. We stated:

"Since the relationship between the parties is tangential and the causation chain attenuated, we are placed squarely in the quagmire of foreseeability. Essentially, a duty is an obligation 'recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks'. Professor William L. Prosser finds the interrelationship between negligence and risk as follows:

" 'Negligence is a matter of risk--that is to say, of recognizable danger of injury. It has been defined as "conduct which involves an unreasonably great risk of causing damage," or, more fully, conduct "which falls below the standard established by law for the protection of others against unreasonably great risk of harm." ' (Emphasis added.)

The emphasis is placed upon the unreasonable nature of the risk since all conduct involves some recognizable but remote risk to others and society does not require a person to guard against all such risks unless the circumstances justify the imposition of absolute liability.

"The inquiry becomes whether the risk is unreasonable under the specific circumstances with the societal value of the interest sought to be protected being the primary consideration. Prosser offers foreseeability as the yardstick for measuring such reasonableness as follows:

" 'The idea of risk necessarily involves a recognizable danger, based upon some knowledge of the existing facts, and some reasonable belief that harm may follow. A risk is a danger which is apparent, or should be apparent, to one in the position of the actor.' (Emphasis added.)

Adoption of such a foreseeability test is found in May v Goulding, 365 Mich 143, 152-153; 111 NW2d 862 (1961). Cf. Johnston v Harris, 387 Mich 569; 198 NW2d 409 (1972). Although foreseeability is at best an elusive standard, suffice it to say that '[a]s the gravity of the possible harm increases, the apparent likelihood of its occurrence need be correspondingly less'.

" * * * We justify imposing a duty upon defendant by balancing the societal interests involved, severity of the risk, burden upon defendant, likelihood of occurrence, and relationship between the parties." Id., 44 Mich.App. pp. 661-663, 205 N.W.2d 833. (Footnotes omitted.) (Emphasis in original.)

Unquestionably, society has an interest in the safety of those traveling on public roads and highways. Society, as well as the landowner, benefits from the convenience of shopping center developments located in close proximity to public access. However, that same close proximity poses a serious risk of injury to motorists passing by shopping center parking lots. With the ever-increasing development of shopping centers and malls and the sprawl of adjacent parking lots, it only becomes increasingly difficult for public motorists to avoid routes paved with new development. Where the parking lot of a shopping center abuts a public highway, it is entirely foreseeable that a serious accident may occur between a customer entering or exiting from the parking lot and a highway motorist. Under such circumstances, we think it wholly just to impose a burden upon a defendant landowner to design, develop and maintain a parking area so as to prevent an unreasonable risk of harm to motorists traveling on adjacent highways.

We do not rest our decision on public policy considerations alone. Our courts have long held that a landowner must maintain his or her own land so as not to injure users of an abutting street.

One day long ago, before the development of shopping malls, Kathryn Bannigan was walking by a building when...