Ross v. Glaser

• Decision Date: 22 November 1996
• Docket Number: Docket No. 166014
• Citation: 220 Mich.App. 183,559 N.W.2d 331
• Parties: Rosalee J. ROSS, personal representative of the estate of Forrest Ross, deceased, Plaintiff-Appellant, Cross-Appellee, v. John GLASER, Defendant-Appellee, Cross-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 331

559 N.W.2d 331

220 Mich.App. 183

Rosalee J. ROSS, personal representative of the estate of Forrest Ross, deceased, Plaintiff-Appellant, Cross-Appellee, v. John GLASER, Defendant-Appellee, Cross-Appellant.

Docket No. 166014.

Court of Appeals of Michigan.

Submitted Dec. 19, 1995, at Detroit.

Decided Nov. 22, 1996, at 9:05 a.m.

Released for Publication Feb. 25, 1997.

Lopatin, Miller, Freedman, Bluestone and Herskovic by Richard E. Shaw, Detroit, for the plaintiff-appellant cross-appellee.

Collins, Einhorn, Farrett & Ulanoff, P.C. by Kenneth C. Merritt and Noreen L. Slank, Southfield, for defendant-appellee cross-appellant.

Before MARKMAN, P.J., and MARILYN J. KELLY and L.V. BUCCI, ^* JJ.

MARILYN J. KELLY, Judge.

Plaintiff appeals as of right and defendant cross-appeals from an order granting summary disposition to defendant in this wrongful death action pursuant to MCR 2.116(C)(8). Plaintiff argues that it was for the jury to decide whether defendant could be held liable for giving a handgun to his mentally impaired son who used it to kill plaintiff's decedent. We reverse.

I

On September 29, 1991, Anthony Glaser was outside his parents' home. Four friends of decedent's family engaged him in a verbal altercation. Apparently, there was a history of tension between the Glaser family and the Ross family. Members of the Ross family and neighborhood rivals had assaulted or harassed Anthony, who suffered from a psychosis and other mental disturbances. The encounters caused Anthony to purchase three guns in the summer of 1991.

On the day in question, neighborhood youths had been taunting Anthony. In an agitated state, he entered the family house and yelled to defendant to hand him one of the guns. Defendant complied. Anthony obscured the gun from view behind his waistband and returned outside. Defendant followed and attempted to physically restrain Anthony while calling for neighbors to contact the police.

When police officers arrived, defendant and his wife argued with them regarding the ineffectiveness of the police in dealing with the harassment. In the meantime, Anthony got into his automobile and drove away. Within minutes, he encountered plaintiff's decedent outside a neighborhood store and shot him to death. Anthony was found guilty but mentally ill of second-degree murder.

Plaintiff then filed this wrongful death action against defendant. In it, she claims that defendant was negligent for handing a loaded gun to his unstable son, knowing his agitated state and the history of confrontation between the families.

Defendant moved for summary disposition, arguing that he owed no duty to protect third parties from Anthony's criminal acts. He also claimed that his act of handing Anthony the gun was not the proximate cause of the death. The trial court relied on Bell & Hudson, P.C. v. Buhl Realty Co., 185 Mich.App. 714, 462 N.W.2d 851 (1990). It ruled that the familial relationship was insufficient to impose a duty upon defendant to protect the general public or plaintiff's decedent from Anthony's criminal acts.

II

As part of a prima facie case of negligence, a plaintiff must prove that the defendant owed him a duty. Schultz v. Consumers Power Co., 443 Mich. 445, 449, 506 N.W.2d 175 (1993). Duty is a legally recognized obligation to conform to a particular standard of conduct toward another. Chivas v. Koehler, 182 Mich.App. 467, 475, 453 N.W.2d 264 (1990). Duty comprehends whether the defendant is under any obligation to the plaintiff to avoid negligent conduct; it does not include the nature of the obligation. Moning v. Alfono, 400 Mich. 425, 437, 254 N.W.2d 759 (1977). If the court determines as a matter of law that a defendant owed no duty to a plaintiff, summary disposition is properly granted under MCR 2.116(C)(8). Dykema v. Gus Macker Enterprises, Inc., 196 Mich.App. 6, 9, 492 N.W.2d 472 (1992).

In this case, defendant argues that he has no duty to control the conduct of third parties absent a special relationship to them, particularly when the conduct is criminal. See 2 Restatement Torts, 2d, §§ 314-315, pp 116-123. He asserts that the father-son relationship is insufficient to establish the required special relationship that would impose a duty on him. See generally Bell & Hudson, P.C., supra.

The argument is unavailing. Michigan courts have distinguished active misconduct causing personal injury (misfeasance) and passive inaction or the failure to protect others from harm (nonfeasance). Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 498, 418 N.W.2d 381 (1988). Generally, with respect to nonfeasance, there is no legal duty that obligates a person to aid or protect another. Id. at 498-499, 418 N.W.2d 381. An exception has developed where a special relationship exists between the persons. Id. at 499, 418 N.W.2d 381; Dykema, supra at 8, 492 N.W.2d 472; Bell & Hudson, supra.

However, defendant's act of handing a loaded gun to Anthony was not one of nonfeasance, but rather misfeasance. Therefore, the special relationship doctrine is inapplicable, and the trial court erred in relying on Bell & Hudson, supra. Instead, we must determine whether defendant had a duty to refrain from handing Anthony a loaded weapon.

Several considerations underlie the determination whether a duty exists: (1) the foreseeability of the harm; (2) the degree of certainty of injury; (3) the closeness of the connection between the conduct and the injury; (4) the moral blame attached to the conduct; (5) the public policy of preventing future harm; and (6) the burdens and consequences of imposing a duty and the resulting liability for breach. Buczkowski v. McKay, 441 Mich. 96, 101, n. 4, 490 N.W.2d 330 (1992); Babula v. Robertson, 212 Mich.App. 45, 49, 536 N.W.2d 834 (1995).

As to foreseeability, we determine whether it is foreseeable that the conduct may create a risk of harm to the victim and whether the result and intervening causes were foreseeable. Moning, supra at 439, 254 N.W.2d 759; Berry v. J & D Auto Dismantlers, Inc, 195 Mich.App. 476, 481, 491 N.W.2d 585 (1992).

Looking at the record in this case, Anthony was chronically mentally unstable, having been diagnosed as paranoid schizophrenic and hospitalized numerous times. An intense neighborhood conflict existed between Anthony and the Ross family and their "backers." Numerous police reports were filed because of this conflict during the summer and fall of 1991. As a result of the conflict, Anthony purchased three guns that summer. On the day of the shooting, four young men harassed Anthony. He ran into the house and yelled to defendant to get his gun. Despite his knowledge of his son's mental instability and his awareness of the neighborhood conflict which was manifesting itself at that very moment, defendant handed the gun to Anthony.

Under these circumstances, the harm was foreseeable. When defendant handed the gun to Anthony, it was foreseeable that Anthony would shoot someone. It is true that the harm did not befall one of the four antagonists while outside the Glaser home. Nevertheless, when defendant gave the gun to Anthony, it was foreseeable that he would respond to a perceived threat by firing it at a member of the Ross family. The Rosses were at the center of the antagonism. It is not necessary that the manner in which a person might suffer injury be foreseen or anticipated in specific detail. Babula, supra at 53, 536 N.W.2d 834.

With respect to the issue of duty, the dissent erroneously maintains that a duty should not be imposed here, for the sole reason that the shooting was unforeseeable. Our Supreme Court has held that the question of duty depends only in part on foreseeability. Other considerations are usually more important. Buczkowski, supra at 101, 490 N.W.2d 330.

In Buczkowski, the Court held that a duty should not be imposed on a retailer who sold ammunition to an allegedly incompetent person who later injured another while using the ammunition. The Court noted that it was unforeseeable what action the customer would take with the ammunition. The Court further stated:

Where foreseeability fails as an adequate template for the existence of a duty, recourse must be had to the basic issues of policy underlying the core problem whether the plaintiff's interests are entitled to legal protection against the defendant's conduct. [Id. at 102, 490 N.W.2d 330.]

The Court noted that a duty could be imposed despite the actual lack of foresee-ability. Id. at 108, 490 N.W.2d 330. InBuczkowski, because there was no evidence that the customer acted in a threatening manner or was legally incompetent, the Court declined to impose a duty on the defendant. Id. at 109, 490 N.W.2d 330.

Here, the relationship between the parties is much different from that in Buczkowski. Defendant knew that his son was mentally incompetent, had been hospitalized several times due to his mental illness and was subject to "rage attacks" at the slightest provocation. Under those circumstances, defendant had a duty not to hand his son a loaded weapon. The likelihood of injury is high when a mentally ill individual is handed a loaded gun while in an agitated state and in conflict with antagonists.

Moreover, the proximity in time between defendant's conduct and the shooting of one of Anthony's antagonists is sufficiently close to give rise to a duty. Anthony is the one most blameworthy for the shooting death of plaintiff's decedent. However, defendant put the gun in his hands. Under the circumstances, his conduct carries some degree of moral blame. ¹

Finally, the determination that defendant owed a duty not to create an unreasonable risk of harm to others enforces a public policy that prevents harm to third persons. Moreover, the burden on members of the public in imposing a duty under these circumstances is slight. In Buczkowski, the Court examined whether a duty should be placed on a retailer to inquire into every customer's possible use of...