Peka v. Boose

• Decision Date: 30 November 1988
• Docket Number: Docket No. 95735
• Citation: 172 Mich.App. 139,431 N.W.2d 399
• Parties: Ernest PEKA, Plaintiff-Appellant, v. Kellie Sue BOOSE, Richard Boose, and Jeanne Boose, his wife, jointly and severally, Defendants, and Vivian Bottger, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 399

431 N.W.2d 399

172 Mich.App. 139

Ernest PEKA, Plaintiff-Appellant, v. Kellie Sue BOOSE, Richard Boose, and Jeanne Boose, his wife jointly and severally, Defendants and Vivian Bottger, Defendant-Appellee.

Docket No. 95735.

Court of Appeals of Michigan.

Submitted Nov. 5, 1987.

Decided May 25, 1988.

Released for Publication Nov. 23, 1988.

Leave to Appeal Denied Nov. 30, 1988.

Robert F. White, Pontiac, for Ernest Peka.

Gromek, Bendure & Thomas by John A. Lydic, Detroit, for Vivian Bottger.

Before CYNAR, P.J., and SAWYER and J.A. GILLIS, ^* JJ.

PER CURIAM.

Plaintiff appeals as of right from the trial court's grant of summary disposition in favor of defendant Vivian Bottger. The trial court held that plaintiff's complaint in negligence failed to state a claim upon which relief could be granted. MCR 2.116(C)(8). We affirm.

The facts are not in dispute. On May 14, 1985, at approximately 2:53 p.m., defendant Bottger was stopped in a vehicle in the inside northbound lane of Main Street at the intersection of Main Street and Turrill Avenue in Lapeer. Defendant Kellie Sue Boose was stopped in a vehicle in the left turn lane of southbound Main Street at the Turrill intersection. Plaintiff was driving a vehicle in the outside northbound lane of Main Street. Defendant Bottger motioned for defendant Boose to turn left onto Turrill. As defendant Boose's car was turning across the northbound lanes of Main Street on to Turrill, it was struck by plaintiff's vehicle. Plaintiff was injured and sued defendants for negligence.

The trial court granted defendant Bottger's motion for summary disposition after finding that defendant owed no legal duty to plaintiff and her actions were not the proximate cause of plaintiff's injuries.

In a negligence action, the court assesses competing policy considerations and determines as a matter of law whether the defendant owes an actionable legal duty to the plaintiff. Friedman v. Dozorc, 412 Mich. 1, 22, 312 N.W.2d 585 (1981).

In Rodriquez v. Detroit Sportmen's Congress, 159 Mich.App. 265, 270-271, 406 N.W.2d 207 (1987), lv. den. 428 Mich. 905 (1987), we discussed the element of duty:

"The determination of whether a legal duty exists is a question of whether the relationship between the actor and the plaintiff gives rise to any legal obligation on the actor's part to act for the benefit of the subsequently injured person. Further, a legal duty is essentially an obligation recognized by law which requires an actor to conform to a certain standard of conduct for the protection of others against unreasonable risk. Thus, the determination of whether a duty should be recognized in any individual case is based on a balancing of the societal interest involved, the severity of the risk, the burden upon the defendant, the likelihood of occurrence and the relationship between the parties. The element of duty in a negligence action is a question of law for the court to decide."

Plaintiff relies heavily on Sweet v. Ringwelski, 362 Mich. 138, 106 N.W.2d 742, 90 ALR2d 1434 (1961), in support of his position. There, our Supreme Court held that the trial court should not have granted a directed verdict in favor of defendant truck driver on the ground of no showing of negligence. Defendant truck driver had stopped his truck and waved for the ten-year-old plaintiff pedestrian to cross the street on the crosswalk in front of him. Plaintiff continued crossing the street into the lane next to the truck and was struck by a car driven by defendant motorist. The Court's decision was based on the facts that plaintiff was a ten-year-old girl, that her vision of defendant motorist's car may have been obscured by defendant truck driver's truck, and that plaintiff testified that she proceeded to the point of impact because she relied on what she considered to be directions from an adult. Sweet, supra, p. 144, 106 N.W.2d 742. The Court held that there were questions of fact for the jury with respect to the intended meaning of defendant truck driver's hand signal, the meaning that the signal might reasonably have been anticipated to convey to...