Samson v. Saginaw Professional Bldg., Inc.

• Decision Date: 20 February 1973
• Docket Number: No. 3,Docket No. 11925,3
• Citation: 44 Mich.App. 658,205 N.W.2d 833
• Parties: Carol SAMSON and Wendell Samson, Plaintiffs-Appellees, v. SAGINAW PROFESSIONAL BUILDING, INC., a Michigan corporation, Defendant-Appellant, and Donald Butzin, Defendant
• Court: Court of Appeal of Michigan — District of US

Page 833

205 N.W.2d 833

44 Mich.App. 658

Carol SAMSON and Wendell Samson, Plaintiffs-Appellees, v. SAGINAW PROFESSIONAL BUILDING, INC., a Michigan corporation Defendant-Appellant and Donald Butzin, Defendant.

Docket No. 11925.

Court of Appeals of Michigan, Division No. 3.

Feb. 20, 1973.

Rehearing Denied April 2, 1973.

Released for Publication April 9, 1973.

Jeannette A. Paskin Plunkett, Cooney, Rutt & Peacock, Detroit, for Saginaw Prof. Building, Inc.

Alvin J. Wilson, Saginaw, for Butzin.

Peter F. Cicinelli, Saginaw, for plaintiffs-appellees.

Before DANHOF, P.J., and BRONSON and T. M. BURNS, JJ.

BRONSON, Judge.

The factual setting for the instant appeal is concisely set forth in our Brother's separate opinion, and its repetition is avoided. The primary issue raised is whether a landlord is liable for the injuries of a tenant's employee sustained upon the premises and caused by another tenant's mental patient on convalescent leave status. We readily admit that our colleague's thoughtful analysis is logically appealing, but the result is unacceptable. Conceding that the imposition of a duty upon defendant ¹ flows from policy considerations which are somewhat result-oriented, it is supported by sound legal principles and our understanding of developing case law. The secondary issues raised by defendant which require our consideration are whether the trial judge committed reversible error by admitting Donald Butzin's probate court records and the testimony of his prior assault victim.

Disposition of the first issue requires a determination of whether defendant owes a legal duty to the injured plaintiff. Since the relationship between the parties is tangential and the causation chain attenuated, we are placed squarely in the quagmire of Foressability. Essentially, a duty is an obligation 'recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks'. ² Professor William L. Prosser finds the interrelationship between negligence and risk as follows:

'Negligence is a matter of risk--that is to say, of recognizable danger of injury. It has been defined as 'conduct which involves an Unreasonably great risk of causing damage,' or, more fully, conduct 'which falls below the standard established by law for the protection of others against Unreasonably great risk of harm." ³ (Emphasis added.)

The emphasis is placed upon the unreasonable nature of the risk since all conduct involves some recognizable but remote risk to others and society does not require a person to guard against All such risks unless the circumstances justify the imposition of absolute liability. ⁴

The inquiry becomes whether the risk is unreasonable under the specific circumstances with the societal value of the interest sought to be protected being the primary consideration. ⁵ Prosser offers foreseeability as the yardstick for measuring such reasonableness as follows:

'The idea of risk necessarily involves a Recognizable danger, based upon some knowledge of the existing facts, and some reasonable belief that harm may follow. A risk is a danger which is Apparent, or should be apparent, to one in the position of the actor.' ⁶ (Emphasis added.)

Adoption of such a foreseeability test is found in May v. Goulding, 365 Mich. 143, 152--153, 111 N.W.2d 862 (1961). Cf. Johnson v. Harris, 387 Mich. 569, 198 N.W.2d 409 (1972). Although foreseeability is at best an elusive standard, suffice it to say that '(a)s the gravity of the possible harm increases, the apparent likelihood of its occurrence need be correspondingly less'. ⁷

Since these fundamental concepts underlie the creation of landlord-tenant law, we seek their employment. Mere reference to a landlord's duty to maintain safe premises fails to answer the inquiry and the abundance of case law for this proposition need not be cited. We justify imposing a duty upon defendant by balancing the societal interests involved, severity of the risk, burden upon defendant, likelihood of occurrence, and relationship between the parties.

The risk in the instant case is created by the mental patient's propensity for violence while visiting defendant's tenant, the Saginaw Valley Consultation Center, during convalescent leave. Defendant challenges the existence of its duty upon such facts, claiming that it possessed no actual knowledge that the patients on convalescent leave possessed a propensity for violence, had no means available to discover such knowledge, and had a right to rely upon the decision by the Michigan State Department of Public Health to place the patients on convalescent leave status.

A review of the record discloses the nature and extent of the knowledge possessed by defendant. Frederick Zingg, defendant's leasing agent, and Arrol Irish, a principal stockholder, had actual knowledge that mental patients would visit the Saginaw Consultation Center daily for treatment. The record contains evidence that Mr. Zingg and Mr. Irish received a complaint from another tenant in the building which involved the poor dress of the mental patients. Although this event was offered as the single innocuous complaint received by defendant, the record discloses a further reference to the tenants' concern. After repeated examination and cross-examination upon his deposition testimony, Mr. Zingg conceded that this complaint by females working in the building concerned their fear and apprehension regarding the patients' use of the stairs and elevators to reach the fourth floor where the center was located. These concerns should have at least placed defendant upon notice that a possible dangerous condition may exist. The common knowledge available to defendant's officers and agents that assaults and homicides are committed by mental patients while on convalescent leave would have provided similar notice. Notwithstanding Mr. Irish's successful relationship with a mental patient on leave status and knowledge of others, the incidence of assaults and homicides committed by mental patients with a history of violent conduct has been made vividly clear to the families involved and the public at large. These occasional unfortunate events constitute the realities of life. We do not attempt to undermine the rehabilitative effort sought for such patients, but simply recognize that experiences and events occur with sufficient frequency to create a real and not an imaginary danger.

Many patients are simply mentally deficient or retarded and present no unreasonable threat to the community in which they are released. Others possessing a propensity for violence, as evidenced by prior violent conduct toward others, may present a hazard. The fact that the consultation center would be treating mental patients and the fact that those patients with a propensity to be violent present a risk created sufficient knowledge to require defendant to inquire further to determine the type of patients that would visit its building with regularity. After evaluating the competing considerations, we do not find that such inquiry created an undue burden upon defendant. The present record indicates that defendant absolutely failed to make such further inquiry and this failure may well be sufficient to support a finding of negligence. ⁸ Had defendant conducted such inquiry the risk would have become sufficiently foreseeable to reveal defendant's duty to adequately protect the employees of other tenants on the premises.

The appropriate inquiry would have disclosed that the Saginaw Valley Consultation Center treated a variety of patients whose mental disorders range from deficiencies to serious and dangerous antisocial behavior. Mr. Eckes, director of the center, acknowledged receiving patients for consultation from the Ionia State Hospital. The mental disorders of such patients had resulted in criminal involvement encompassing violent conduct to others. Donald Butzin, who had been committed for stabbing another woman, was representative of a group of patients possessing such histories for violence.

The hazard created to defendant's remaining tenants becomes apparent from an understanding of the nature of convalescent leave. The Hospital Act for Mentally Diseased Persons defines convalescent leave as follows:

'The term 'convalescent status' shall describe and include any patient Who is not discharged, but who is permitted by the medical superintendent to live apart from the state hospital or state home under the special regulations of the medical superintendent.' M.C.L.A. § 330.54; M.S.A. § 14.844. (Emphasis added.)

A reading of various sections of this statute makes clear the distinction between discharge and convalescent status. ⁹ A discharge represents a determination that a patient has recovered or been restored to sanity while convalescent status represents a trial or test of the patient's reconciliation with society that precedes such determination. Since each of these procedures may be said to differ only in the degree to which the patient's future conduct can be predicted, the risk to society during convalescent leave is sufficiently unreliable to justify different treatment. Mr. Eckes characterized the convalescent leave program as 'a trial visit back to the community' in which the patient's rehabilitation with society is attempted. This witness admitted that some patients for a variety of reasons failed this test and are returned to the hospitals for treatment.

The distinction between these procedures underscores the apparent risks involved. Defendant's reliance upon the State of Michigan ¹⁰ is misplaced since such trial status is neither the equivalent of a discharge nor concomitant with a cure. Defendant's further investigation would have produced facts which belie such reliance and disclosed a foreseeable risk. Concededly, defendant could not have discovered Donald Butzin's prior history of violent conduct for such records would most likely...