Powers v. Peoples Community Hosp. Authority

• Decision Date: 15 February 1991
• Docket Number: No. 89168,No. 110355,89168,110355
• Citation: 465 N.W.2d 566,437 Mich. 910
• Parties: Kathleen POWERS, Personal Representative of the Estate of Frank Powers, Plaintiff-Appellant, v. PEOPLES COMMUNITY HOSPITAL AUTHORITY and Dr. N. Jahan, Defendants-Appellees. COA437 Mich. 910, 465 N.W.2d 566
• Court: Michigan Supreme Court

Page 566

465 N.W.2d 566

Kathleen POWERS, Personal Representative of the Estate of Frank Powers, Plaintiff-Appellant, v. PEOPLES COMMUNITY HOSPITAL AUTHORITY and Dr. N. Jahan Defendants-Appellees.

No. 89168.

COA No. 110355.

437 Mich. 910, 465 N.W.2d 566

Supreme Court of Michigan.

Feb. 15, 1991.

ORDER

On order of the Court, the application for leave to appeal is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

LEVIN, Justice, would grant leave to appeal and states as follows:

I would grant leave to appeal for the reasons stated in the statement accompanying the order denying leave to appeal in Bucalo v. Univ. of Michigan Bd. of Regents, 432 Mich. 859, 434 N.W.2d 413 (1989). ¹

I would also grant leave to appeal because the promissory estoppel analysis of the Court of Appeals is inadequate. Powers asserted that members of the decedent's family begged the nurses at the defendant hospital to obtain intervention by a physician, and that they offered to bring in their own physician, but the nurses promised the family that a doctor was "on his way." They allege that, in reliance on that promise, the family's doctor was not asked to intervene, and that no physician attended the decedent until he went into cardiogenic shock, which is asserted to be almost always irreversible.

The Court of Appeals stated that it rejected "plaintiff's promissory estoppel claim as the alleged promise made by defendant hospital's nursing staff related to medical care or treatment and such promises must be in writing." Powers v. Peoples Community Hosp Authority, 183 Mich.App. 550, 554, 455 N.W.2d 371 (1990).

The Court of Appeals statements rejecting Powers' promissory estoppel argument is not responsive to the argument. The promissory estoppel argument concedes, in effect, that the alleged promise must be in writing, but asserts in avoidance that action or forbearance by the promisee was induced by the promisor and makes the promise enforceable notwithstanding noncompliance with the statute of frauds. It appears there may be considerable merit in that argument.

The Restatement of Contracts, 2d, provides:

"139. Enforcement by Virtue of Action in Reliance

"(1) A promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce the action or forbearance is enforceable notwithstanding the Statute of Frauds if injustice can be avoided only by enforcement of the promise. The remedy granted for breach is to be limited as justice requires.

"(2) In determining whether injustice can be avoided only by enforcement of the promise, the following circumstances are significant:

"(a) the availability and adequacy of other remedies, particularly cancellation and restitution;

"(b) the definite and substantial character of the action or forbearance in relation to the remedy sought;

"(c) the extent to which the action or forbearance corroborates evidence of the making and terms of the promise, or the making and terms are otherwise established by clear and convincing evidence;

"(d) the reasonableness of the action or forbearance;

"(e) the extent to which the action or forbearance was foreseeable by the promisor." 1 Restatement Contracts, 2d, Sec. 139, p. 354.

The comment states that Sec. 139 is "complementary to Sec. 90, which dispenses with the requirement of consideration if the same conditions are met, but it also applies to promises supported by consideration." The comment illustrates an application of Sec. 139:

"Illustrations:

"2. A is a pilot with an established airline having rights to continued employment, and could take up to six months leave without prejudice to those rights. He takes such leave to become general manager of B, a small airline which hopes to expand if a certificate to operate over an important route is granted. When his six months leave is about to expire, A demands definite employment because of that fact, and B orally agrees to employ A for two years and on the granting of the certificate to give A an increase in salary and a written contract. In reliance on this agreement A lets his right to return to his prior employer expire. The certificate is soon granted, but A is discharged in breach of the agreement. The Statute of Frauds does not prevent recovery of damages by A." 1 Restatement Contracts, 2d, Sec. 139, p. 355.

It appears that the decision of the Court of Appeals panel in the instant case conflicts with a decision of another panel of the Court of Appeals in another reported decision of the Court of Appeals, Conel Development, Inc. v. River Rouge Savings Bank, 84 Mich.App. 415, 269 N.W.2d 621...