Rand v. Knapp Shoe Stores

• Decision Date: 30 August 1989
• Docket Number: Docket No. 106703
• Citation: Rand v. Knapp Shoe Stores, 444 N.W.2d 156, 178 Mich.App. 735 (Mich. App. 1989)
• Parties: Joan RAND, Individually and as Next Friend of James K. Rand, Jr., a Minor, Plaintiff-Appellant, v. KNAPP SHOE STORES, and East Detroit Investment Company, Defendants-Appellees. 178 Mich.App. 735, 444 N.W.2d 156
• Court: Court of Appeal of Michigan

Page 156

444 N.W.2d 156

Joan RAND, Individually and as Next Friend of James K. Rand Jr., a Minor, Plaintiff-Appellant, v. KNAPP SHOE STORES, and East Detroit Investment Company Defendants-Appellees.

Docket No. 106703.

178 Mich.App. 735, 444 N.W.2d 156

Court of Appeals of Michigan.

Submitted May 1, 1989.

Decided June 13, 1989.

Released for Publication Aug. 30, 1989.

[178 MICHAPP 736] Law Offices of Brochert & Ward by David S. Anderson, Bloomfield Hills, for plaintiff-appellant.

Harvey, Kruse, Westen & Milan, P.C. by Thomas F. Kauza and William F. Rivard, Detroit, for Knapp Shoe Stores.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton by Michael L. Updike, Farmington Hills, for East Detroit Inv. Co.

Before GILLIS, P.J., and MICHAEL J. KELLY and BURNS, ^* JJ.

PER CURIAM.

Plaintiff Joan Rand, who brought an action individually and as next friend of James K. Rand, Jr., appeals from a Macomb Circuit Court order granting summary disposition in favor of defendants Knapp Shoe Stores and East Detroit Investment Company. We affirm.

[178 MICHAPP 737] Summary disposition was based on plaintiff's failure to present a genuine issue of material fact, MCR 2.116(C)(10). Plaintiff asserts that the case presents issues of material fact and merits consideration by a jury.

On October 4, 1985, James K. Rand, Jr., an eight-year-old boy, was struck and injured by an automobile while riding his bicycle. The accident occurred in the alley directly behind defendant Knapp Shoe Store located at 20909 Gratiot Avenue in the City of East Detroit, Michigan.

The alley where the accident occurred is directly behind the shoe store. The sidewalk used by the injured child runs directly alongside the store. The Knapp building is located at a corner where the sidewalk and alley intersect, creating a blind spot which prevents either pedestrians on the sidewalk or motorists in the alley from observing one another so as to avoid accidental collision.

During the course of discovery, it was established that East Detroit Investment Company was a landlord out of possession, pursuant to a written lease between itself and Knapp. It was further established that the injured child had been using two steps at the end of the sidewalk as a "bicycle jump ramp" at the time of the accident. Also, the collision took place in the public alley behind the shoe store and not on the premises owned by East Detroit and leased to Knapp. Accordingly, both defendants moved for summary disposition based on MCR 2.116(C)(8), failure to state a claim, and MCR 2.116(C)(10), no genuine issue of material fact.

The court issued a written opinion granting summary disposition to defendants pursuant to MCR 2.116(C)(10). The court held: (1) that regardless of which defendant retained control of the leased premises, the accident occurred off the [178 MICHAPP 738] premises in the public alley where defendants owed no duty to the child; (2) that the court was unpersuaded that the positioning and construction of the building and sidewalk involved an unreasonable risk of death or serious bodily harm so as to constitute an attractive nuisance; and (3) that plaintiff had failed to come forward with any evidence to convince the court that defendants knew or had reason to know of the alleged dangerous condition.

Summary disposition of all or part of a claim or defense may be granted when:

Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law. [MCR 2.116(C)(10).]

A motion for summary disposition pursuant to MCR 2.116(C)(10) tests whether there is factual support for a claim. When ruling on such a motion, the trial court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence available to it. MCR 2.116(G)(5). The party opposing the motion has the burden of showing that a genuine issue of disputed fact exists. Dumas v. Auto Club Ins. Ass'n, 168 Mich.App. 619, 626, 425 N.W.2d 480 (1988).

The lower court granted defendants' motion for summary disposition pursuant to MCR 2.116(C)(10). On appeal, plaintiff argues that a factual issue exists as to whether defendants owed a duty to develop and maintain their premises so as not to injure travelers on the adjacent alley or sidewalk.

In reaching its conclusion, the trial court cited several recent opinions of this Court. In Swartz v. Huffmaster Alarms Systems, Inc., 145 Mich.App. [178 MICHAPP 739] 431, 377 N.W.2d 393 (1985), the plaintiff sought damages for injuries sustained when he was struck by an automobile driven by defendant Taylor. Plaintiff Swartz had left defendant Red Lobster Restaurant and was walking across Telegraph Road. On appeal, the plaintiff claimed that the defendants each owed a duty to an impaired person to protect him from dangers he might encounter on well-traveled public roads adjacent to the business. 145 Mich.App. at 434, 377 N.W.2d 393. In affirming the trial court's grant of summary disposition, this Court held that defendant Red Lobster's duty ended when the plaintiff left the restaurant and was no longer on property owned or controlled by that defendant.

This Court reached a similar decision in Rodriquez v. Detroit Sportsmen's Congress, 159 Mich.App. 265, 406 N.W.2d 207 (1987), lv. den. 428 Mich. 905 (1987), in which the plaintiff, along with several friends, attended a picnic at Warsaw Park. The plaintiff and his friends set up a picnic table approximately fifty feet from the river. At about 1:30 p.m., the plaintiff went swimming in the Clinton River. Later that day, the plaintiff again went into the river. He entered the river from an access point in Warsaw Park, swam across the river, approximately thirty feet, and climbed onto the opposite bank onto real property owned by the Department of Natural Resources. The plaintiff then climbed a tree and stood on a branch, preparing to dive into the river. However, the branch cracked and gave way, causing him to fall off balance into shallow water. As a result of the fall, the plaintiff hit his head on the river bottom and sustained permanent paralysis. Following summary disposition, the plaintiff appealed, arguing that the defendants had a duty to restrict, prohibit or warn him, a business invitee, of the dangers [178 MICHAPP 740] associated with swimming and diving in the river and the defendants' duty existed regardless of the location of the accident. 159 Mich.App. at 270, 406 N.W.2d 207.

This Court upheld the trial court's grant of summary disposition, maintaining that, when the plaintiff swam the river and entered the real property of another, the defendants no longer owed any duty to him arising out of their duty to keep the premises reasonably safe. Rodriquez, supra, at p. 273, 406 N.W.2d 207. "The law does not ordinarily impose a duty of care upon the occupier of land beyond the area over which he has possession or control." 159 Mich.App. at 271, 406 N.W.2d 207.

In short, the general rule is that the law normally does not...