Murdock v. Higgins

Decision Date04 March 1997
Docket NumberNo. 5,Docket No. 101976,5
Citation454 Mich. 46,559 N.W.2d 639
PartiesChristopher MURDOCK, Plaintiff-Appellant, v. Charles HIGGINS, Donna Jarvis, and Mark Kelley, Defendant-Appellees. Calender
CourtMichigan Supreme Court

Silverman, Rodbard & Smith, P.C. by Michael C. Bingen, Kalamazoo, for Plaintiff-Appellant.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Thomas R. Wheeker and Susan I. Leffler, Assistant Attorneys General, Lansing, for Defendants-Appellees.

Before the Entire Bench.


WEAVER, Justice.

Plaintiff-appellant places three issues before this Court. First, whether the Court of Appeals erred when it held defendant Higgins owed no duty to protect this plaintiff from reasonably foreseeable harm on these facts; second, whether the Court of Appeals erred in holding that the trial court erroneously instructed the jury on Michigan's Child Protection Law, M.C.L. § 722.622; M.S.A. § 25.248(2); and, third, whether the Court of Appeals erred in finding that, as a matter of law, there was insufficient evidence to find that Higgin's conduct was the proximate cause of plaintiff's injuries. 1

We affirm the decision of the Court of Appeals. 2 We hold that defendant Higgins owed no duty to plaintiff on the basis of these facts because no special relationship existed between Higgins and the plaintiff, or between Higgins and Kelley, the perpetrator. Further, we hold that the trial court erred in instructing the jury on Michigan's Child Protection Law because the statute, by definition, does not apply to these facts.


In the summer of 1987, Christopher Murdock, the plaintiff-appellant, was a fifteen-year-old volunteer at the Kalamazoo County Department of Social Services's (hereinafter DSS) Children's Corner. 3 The Kalamazoo County Juvenile Court ordered plaintiff to perform 150 hours of community service and referred plaintiff to the Kalamazoo County DSS Office of Volunteer Services. Defendant Mark Kelley was plaintiff's supervisor at the Kalamazoo DSS and, eventually, befriended plaintiff. Defendant Kelley and plaintiff socialized with each other on their free time. On July 18, 1987, to celebrate the completion of plaintiff's volunteer work, Kelley took plaintiff out to dinner. After dinner the two returned to Kelley's home where they smoked Kelley's marijuana. At that time, Kelley attempted to engage in sexual activities with plaintiff. Plaintiff, allegedly in an attempt to escape Kelley's home, suggested that the two of them go to the hot tubs. Kelley took a bag containing soap, condoms, and lubricant.

Plaintiff fled from Kelley upon arriving at the hot tubs. At 1:00 a.m., plaintiff arrived at a friend's house nearby and told the friend and that friend's mother what had just occurred. The police were called and Kelley was arrested.

The DSS instituted an investigation of Kelley's behavior. Their internal investigation revealed that Kelley had in fact provided plaintiff, a minor of fifteen years, with marijuana and had sexually assaulted him. On the basis of Kelley's conduct, the DSS subsequently terminated Kelley.

Before working at the Kalamazoo DSS, Kelley worked at the Missaukee DSS. Defendant Charles Higgins, the director of the Missaukee County Department of Social Services, supervised Kelley while he worked with the Missaukee DSS. Higgins had hired Kelley about July 29, 1985, to coordinate volunteer services in Missaukee County. At trial, Higgins testified that he reviewed Kelley's resume and checked some references before deciding to hire Kelley, but he admitted that he failed to check Kelley's last place of employment. 4

Testimony revealed that in August 1986, approximately one year after Higgins hired Kelley, another employee told Higgins that Kelley had been seen at a local park talking to teenage boys and taking them "for a ride." Higgins testified that the alleged behavior raised minor concerns, 5 and that he decided to discuss the allegations with Kelley.

On August 7, 1986, Higgins conducted the first of several meetings with Kelley regarding this alleged behavior, after and of which Higgins made brief notes. Higgins' notes of this first meeting indicated that Kelley did not deny the "activity other than he ha[d] not picked up any males 'under age 18.' " Higgins' notes further read:

Suggested he consider resignation--if his activities became a problem, I would suspend/fire him as his position in the Dept. & the Dept's function in the community could not tolerate this kind of activity/P.A. [sic]. Advised him to be extremely careful/discreet in his actions.

Higgins' testimony and notes show that on the morning of August 8 he discussed the matter with the local sheriff and with Deputy Brooks. He discovered that no complaints about Kelley's activity in the park had been filed or reported, but that the "park ranger has noticed Mark in the park on many occasions talking with young boys & taking them for rides."

According to Higgins' notes, later that day the sheriff's department questioned Kelley. Kelley, in turn, discussed the sheriff department's inquiries and warnings with Higgins, and Kelley told Higgins he would stay out of the park. Higgins testified that at that meeting he again warned Kelley that if a "problem" developed, Higgins would take "swift" action.

On August 11, 1986, Kelley called Higgins and said that he was upset that someone was spreading rumors about him. Kelley again assured Higgins that he would be more discreet.

Finally, on August 20, Higgins told Kelley that he was "not totally sure that all [of his] contacts are over 18." Kelley told Higgins that he would have to leave town if he had "the urge to carry on."

On November 7, 1986, Kelley transferred to the Kalamazoo Department of Social Services. On October 22, 1986, Higgins signed an "Employee Departure Report" to effectuate Kelley's transfer to Kalamazoo. Higgins testified that when he learned of the transfer, he tried to telephone the director of the Kalamazoo County DSS, Vern Robert, to no avail. He did not follow-up with another telephone or a written inquiry, nor did he express his concerns about Kelley to the Kalamazoo DSS or to the Bureau of Labor Relations in Lansing. Higgins testified that he believed he could not report Kelley to the Lansing bureau without first receiving a formal complaint.

In 1988, plaintiff filed the instant action against Kelley, the Kalamazoo DSS, Donna Jarvis, Kelley's DSS supervisor at the time of the incident, and Higgins, Kelley's previous supervisor in Missaukee. 6 A Kalamazoo Circuit Court jury found there was no cause of action against Donna Jarvis, but returned a verdict of approximately $120,000 against Kelley and Higgins. The jury found that Higgins was grossly negligent and that that was the proximate cause of plaintiff's injuries.

Higgins appealed and claimed that he had no duty to plaintiff, that the trial court erred in instructing the jury on Michigan's Child Protection Law, and that plaintiff had failed to prove that Higgins' conduct was the proximate cause of plaintiff's injuries.

The Court of Appeals reversed the jury's determination against Higgins in a published per curiam opinion. 7

Plaintiff subsequently sought and we granted leave to appeal.


The first issue raised on appeal is whether the Court of Appeals erred when it held that Higgins owed no duty to plaintiff on the basis of these facts. Plaintiff alleged that defendant Higgins performed his job as DSS supervisor in a grossly negligent manner under M.C.L. § 691.1407(2)(c); M.S.A. § 3.996(107)(2)(c) 8 because he failed to properly investigate and supervise Kelley's activities in Missaukee County or failed to disclose his suspicions about Kelley to the Kalamazoo County DSS officials.

The threshold question, whether a duty exists, is a question of law, an issue "solely for the court to decide. ....". 9 In determining whether to impose a duty, this Court evaluates factors such as: the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented. Buczkowski v. McKay, 441 Mich. 96, 100, 490 N.W.2d 330 (1992). Only after finding that a duty exists may the factfinder determine whether, in light of the particular facts of the case, there was a breach of the duty.


Generally, an individual has no duty to protect another who is endangered by a third person's conduct. 10 Where there is a duty to protect an individual from a harm by a third person, that duty to exercise reasonable care arises from a "special relationship" either between the defendant and the victim, or the defendant and the third party who caused the injury. Marcelletti v. Bathani, 198 Mich.App. 655, 664, 500 N.W.2d 124 (1993). Such a special relationship must be sufficiently strong to require a defendant take action to benefit the injured party. Samson v. Saginaw Professional Bldg., Inc., 393 Mich. 393, 406, 224 N.W.2d 843 (1975).

In this case, a special relationship would exist if the plaintiff had entrusted himself to the protection and control of defendant Higgins and, in so doing, lost the ability to protect himself. Dykema v. Gus Macker, 196 Mich.App. 6, 9, 492 N.W.2d 472 (1992), citing Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 499, 418 N.W.2d 381 (1988). During his volunteer work with the Kalamazoo DSS, plaintiff arguably entrusted himself to the control of the Kalamazoo DSS. However, this plaintiff had no such trust relationship with defendant Higgins. The two never made each other's acquaintance, and never spoke or otherwise communicated. Higgins, as the supervisor of Missaukee DSS personnel, had no contact with or control over Kalamazoo personnel or volunteers. In short, defendant Higgins had no duty to this plaintiff on the basis of a "special relationship" between himself and plaintiff because he had no knowledge of or communication with plaintiff.

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