Poe v. City of Detroit

• Decision Date: 20 October 1989
• Docket Number: Docket No. 98911
• Parties: In the Estate of Eric Poe, Deceased. Mattie POE, Personal Representative of the Estate of Eric Poe, Plaintiff-Appellee, v. CITY OF DETROIT and Lawrence Sneed, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 523

446 N.W.2d 523

179 Mich.App. 564

In the Estate of Eric Poe, Deceased.

Mattie POE, Personal Representative of the Estate of Eric

Poe, Plaintiff-Appellee, v. CITY OF DETROIT and Lawrence Sneed, Defendants-Appellants.

Docket No. 98911.

Court of Appeals of Michigan.

Submitted June 6, 1989.

Decided Aug. 21, 1989.

Released for Publication Oct. 20, 1989.

Leonard D. McMahon, P.C. by Leonard D. McMahon, Detroit (Conway & Wright, P.C. by Daniel J. Wright, Troy, of counsel), for plaintiff-appellee.

Donald Pailen, Corp. Counsel, and Joanne D. Stafford, Asst. Corp. Counsel, Detroit, for defendants.

Before MICHAEL J. KELLY, P.J., and SHEPHERD and NEFF, JJ.

SHEPHERD, Judge.

In this wrongful death action, defendants City of Detroit and Lawrence Sneed appeal as of right from a February 6, 1987, amended judgment of $716,501.20 and an order denying defendants' motion for judgment notwithstanding the verdict or new trial. We reverse.

This case stemmed from an automobile-pedestrian accident at about 2:30 p.m. on May 23, 1983. The pedestrian, thirteen-year-old Eric Poe, had just alighted from a bus at the northeast corner of West Outer Drive and Greenfield. The bus was owned by the defendant city and driven by defendant Sneed.

Sneed had pulled the bus to the curb on West Outer Drive, a few feet from the intersection, at the request of a passenger. The bus was stopped in a "no parking" zone, which was not officially designated as a bus stop. The official bus stop was on the northwest corner of West Outer Drive, just past the intersection. All the passengers, including Eric Poe, safely alighted from the bus. Poe proceeded to walk to the corner facing Greenfield with two female acquaintances. Poe appeared to be observing traffic. He then turned and walked to the corner facing West Outer Drive. One of Poe's companions testified that Poe was trying to catch a bus on another corner, located diagonally from where Poe stood. Poe crouched down in a sprinter's position directly in front of Sneed's bus, which had not yet pulled away from the curb. Poe ran out into the street while the pedestrian signal was at least flashing "don't walk." As soon as Poe emerged from the cover of the bus, he was struck and killed by a vehicle driven by Ernesto Cabello at about forty-eight miles per hour.

In September, 1983, plaintiff commenced this action against Cabello. Plaintiff subsequently amended the complaint to add the city and Sneed as defendants. Plaintiff alleged negligence on the part of Sneed in stopping his bus in a "no parking" zone and negligence on the part of the city in entrusting the bus to Sneed and in hiring, training and supervising Sneed. Prior to trial, plaintiff and Cabello settled for $50,000.

Over the objection of defendants at trial, plaintiff asserted as an additional theory of liability that Sneed owed a duty to warn Poe of the danger he allegedly created by stopping in a "no parking" zone. Defendants' motion for a directed verdict at the close of plaintiff's proofs was taken under advisement and subsequently denied after the jury returned its verdict. The jury found both defendants negligent and that damages amounted to about $1.3 million. After deducting Cabello's settlement of $50,000 and Eric Poe's forty-five percent comparative negligence, the final verdict was $716,501.20. Although defendants raise several issues on appeal, the issues we find dispositive pertain to the trial court's denial of defendants' motion for a directed verdict or judgment notwithstanding the verdict on all liability theories.

MCR 2.515 permits a party to move for a directed verdict at the close of the evidence offered by the opponent. When faced with such a motion, a court must view the evidence in a light most favorable to the nonmoving party and determine whether a prima facie case was established by the plaintiff. If there are material issues of fact upon which reasonable minds could differ, they are properly submitted to the jury. Coy v. Richard's Industries, Inc., 170 Mich.App. 665, 672, 428 N.W.2d 734 (1988), lv. den., 432 Mich. 856 (1989); Beasley v. Washington, 169 Mich.App. 650, 659, 427 N.W.2d 177 (1988); Schanz v. New Hampshire Ins. Co., 165 Mich.App. 395, 418 N.W.2d 478 (1988), lv. den., 431 Mich. 865 (1988). This same standard of examining the evidence in a light most favorable to the nonmoving party also applies in reviewing a motion for judgment notwithstanding the verdict brought subsequent to a jury verdict. Schanz, supra; Matras v. Amoco Oil Co., 424 Mich. 675, 681-682, 385 N.W.2d 586 (1986).

To establish a prima facie case of negligence, plaintiff had a burden to prove (1) a duty owed to Eric Poe by defendants, (2) a breach of the duty, (3) causation and (4) damages. Schanz, supra, 165 Mich.App. p. 402, 418 N.W.2d 478. With regard to Sneed's liability, the issues raised concern the first three elements. Plaintiff's theory of liability, as read to the jury during the instructions, was as follows:

Michigan has a law (MCLA 257.674(3) [MSA 9.2374(3) ], which says that a bus driver cannot stop to discharge a passenger at a place where an official sign prohibits stopping or parking and where there is no bus stop. It is plaintiff's theory that defendant Sneed violated this law. Clearly, Mr. Sneed had a duty to know about the existence of departmental rules and orders and State laws and city traffic laws regulating his driving conduct. Not only did Mr. Sneed violate State Law, City Law and D.O.T. [Department of Transportation] Order # 8883 in letting Eric Poe off where he did, Mr. Sneed did not warn Eric to be extremely careful in doing so as required by the Department of Transportation Order.

It is plaintiff's theory that defendant Sneed's violation of the State Law and City Law is evidence of his negligence and that such negligence was a proximate cause of Eric Poe's death because Eric would not have been crossing at that corner and would not have had his view obstructed by the bus and thereafter killed but for the negligence of Defendant Sneed.

Furthermore, it is plaintiff's theory that the departmental rules of the Department of Transportation reflect the standard of care and caution a reasonably careful bus driver should have, and that defendant Sneed's violation of certain of these rules (i.e. Order # 8883) is evidence of his negligence, and that such negligence was a proximate cause of Eric's death.

On appeal, defendants contend that a directed verdict should have been granted on the question of whether Sneed had any duty to warn Eric Poe, either before or after leaving the bus, of the danger of crossing the street. We agree.

Duty has been defined as an obligation to which the law will give recognition and effect to conform to a particular standard of conduct towards another. Whether or not the law will impose such an obligation depends on the relationship between the actor and the injured person. It is for the court to determine, as a matter of law, what characteristics must be present for a relationship to give rise to a duty. Schanz, supra, p. 402, 418 N.W.2d 478. Questions of fact may then arise as to whether the characteristics exist. Id.

Here, the relationship between Sneed and Eric Poe commenced as one between a common carrier and a passenger. As such, Sneed had an affirmative duty to discharge Eric Poe in a reasonably safe place. Jaxon v. Detroit, 379 Mich. 405, 410, 151 N.W.2d 813 (1967). However, a common carrier is not an insurer of a passenger's safety, Takacs v. Detroit United Railway, 234 Mich. 42, 207 N.W. 907 (1926), and courts have been reluctant to hold a common carrier liable for injuries sustained by a passenger when caused by vehicles moving in traffic. Paultanis v. Nutt, 342 Mich. 335, 69 N.W.2d 825 (1955). The rationale for this rule is that the alighting passenger is in a much better position to guard against the dangers of moving vehicles. Id., p. 344, 69 N.W.2d 825.

Hence, it has been held that a common carrier has no duty to warn passengers of the danger of traffic on a city street. Paultanis, supra, and see Feldman v. Howard, 10 Ohio St.2d 189, 226 N.E.2d 564 (1967); Cavazos v. Geronimo Bus Lines, Inc., 56 N.M. 624, 247 P.2d 865 (1952). Further, once the passenger safely alights, the special carrier-passenger relationship ends and the passenger becomes an ordinary pedestrian. See 13 CJS, Carriers, Sec. 565, p. 1073; Feldman, supra, 10 Ohio St.2d p. 192, 226 N.E.2d 564.

The evidence, here, is uncontroverted that thirteen-year-old Eric Poe safely alighted from the bus and was free to choose how to proceed to his next destination. Poe's status, when he crouched in front of the bus in a sprinting position, was merely that of a pedestrian. The intersection was protected by four traffic and pedestrian walk/don't walk signs. Although Sneed observed Poe's movements, neither this circumstance nor the other proofs offered by plaintiff establish any circumstances that would give rise to a duty by Sneed to warn Poe, as either a passenger or pedestrian, of the danger of crossing the street at the intersection. As for Bulletin No. 8883, relied on by plaintiff in her theory, this internal directive to employees provides that "[o]perators should warn passengers alighting at other than designated coach stops to be extremely careful in doing so." The language is clear that the warning only pertains to the act of alighting and, hence, any failure by Sneed to warn would not be a basis for imposing liability for the automobile accident.

We conclude that Sneed could be held liable only if he breached a duty owed to Poe as a pedestrian. It seems clear that a motor vehicle operator, such as Sneed, owes a duty to pedestrians to exercise due care, i.e. to follow safety rules. Sweet v. Ringwelski, 362 Mich. 138, 106 N.W.2d 742 (1961). Here, the particular standard of care plaintiff sought to establish was that contained in a statute, city ordinance and the Department of Transportation's own...