Rodis v. Herman Kiefer Hosp., Docket No. 74651

• Decision Date: 12 July 1985
• Docket Number: Docket No. 74651
• Citation: 142 Mich.App. 425,370 N.W.2d 18
• Parties: Antonios RODIS and Stavroula Rodis, Plaintiffs-Appellants, v. HERMAN KIEFER HOSPITAL, a department of the City of Detroit, Defendant- Appellee. 142 Mich.App. 425, 370 N.W.2d 18
• Court: Court of Appeal of Michigan — District of US

Page 18

370 N.W.2d 18

Antonios RODIS and Stavroula Rodis, Plaintiffs-Appellants, v. HERMAN KIEFER HOSPITAL, a department of the City of Detroit Defendant- Appellee.

Docket No. 74651.

142 Mich.App. 425, 370 N.W.2d 18

Court of Appeals of Michigan.

Submitted Nov. 14, 1984.

Decided May 6, 1985.

Released for Publication July 12, 1985.

[142 MICHAPP 426] Cartsos, Simon & Korachis by John F. Korachis, [142 MICHAPP 427] and Gromek, Bendure, & Thomas by Nancy L. Bosh, Detroit, for plaintiffs-appellants.

Laurel F. McGiffert, Detroit, for defendant-appellee, on appeal.

Before HOOD, P.J., and BRONSON and TAHVONEN ^*, JJ.

TAHVONEN, Judge.

Plaintiffs appeal as of right from the trial court's October 12, 1983, order granting summary judgment in favor of defendant under GCR 1963, 117.2(1).

On June 26, 1980, Antonios Rodis (hereinafter plaintiff), an employee of an independent contractor, was shot and injured by an unidentified assailant while painting garage doors within the fenced-in premises of the Herman Kiefer Health Complex, which is owned and operated by the City of Detroit. Plaintiff filed this negligence action alleging that defendant breached its duty to "exercise reasonable care and provide safe premises and to protect its business invitees on the premises from assault".

Defendant filed a motion for summary judgment on the grounds that no duty existed to protect plaintiff from the assault and that the claim was barred by governmental immunity. The trial court granted the motion on the first ground, and did not address the governmental immunity question. Plaintiffs appeal as of right.

The grant or denial of a motion for summary judgment under subrule 117.2(1) tests the legal basis of the complaint. The reviewing court must rely on the pleadings alone and assume that the factual allegations in the complaint are true, along with any inferences which may be drawn from those facts. The motion should be granted only when the claim is so unenforceable as a matter of [142 MICHAPP 428] law that no factual development could possibly justify a right to recovery. Blake v. Consolidated Rail Corp., 129 Mich.App. 535, 543, 342 N.W.2d 599 (1983), Aisner v. Lafayette Towers, 129 Mich.App. 642, 645-646, 341 N.W.2d 852 (1983), lv. den. 419 Mich. 871 (1984).

The elements of a negligence action are (i) duty, (ii) general standard of care, (iii) specific standard of care, (iv) cause in fact, (v) legal or proximate cause, and (vi) damages. Moning v. Alfono, 400 Mich. 425, 437, 254 N.W.2d 759 (1977), reh. den. 401 Mich. 951 (1977).

In this case the trial court granted summary judgment on the ground that no duty existed. "Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor's part for the benefit of the injured person." 400 Mich 438-439, 254 N.W.2d 759. (Footnote omitted.) While duty is a question for the court to decide, the specific standard of care is not part of that question. 400 Mich 436-437, 254 N.W.2d 759. The Court in Moning, supra, p. 438, 254 N.W.2d 759, stated:

"While the court decides questions of duty, general standard of care and proximate cause, the jury decides whether there is cause in fact and the specific standard of care: whether defendants' conduct in the particular case is below the general standard of care, including--unless the court is of the opinion that all reasonable persons would agree or there is an overriding legislatively or judicially declared public policy--whether in the particular case the risk of harm created by the defendants' conduct is or is not reasonable." (Footnote omitted.)

The owner of property generally has a duty to protect tenants and invitees from unreasonable risks,...