Sierocki v. Hieber

• Decision Date: 07 July 1988
• Docket Number: Docket No. 96598
• Citation: 168 Mich.App. 429,425 N.W.2d 477
• Parties: Diane SIEROCKI, personal representative of the Estate of Cheryl Sierocki, Deceased, Plaintiff-Appellant, v. Albert HIEBER, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 477

425 N.W.2d 477

168 Mich.App. 429

Diane SIEROCKI, personal representative of the Estate of Cheryl Sierocki, Deceased, Plaintiff-Appellant, v.Albert HIEBER, Defendant-Appellee.

Docket No. 96598.

Court of Appeals of Michigan.

Submitted July 9, 1987.

Decided May 16, 1988.

Released for Publication July 7, 1988.

Michael J. Forster, Saginaw, for plaintiff-appellant.

Chaklos, Jungerheld & Della Santina, P.C. by Thomas C. Wimsatt and Robert A. Hahn, Saginaw, for defendant-appellee.

Before KELLY, P.J., and BEASLEY and EDWARDS, ^* JJ.

EDWARDS, Judge.

Plaintiff appeals as of right from an October 31, 1986, order of the Alpena Circuit Court granting defendant's motion for summary disposition.We affirm.

Plaintiff's claim arises out of a September 28, 1984, automobile accident which occurred when defendant's sister-in-law, Edith Faust, drove her 1982 Ford off a public roadway and struck a pedestrian, Cheryl Sierocki, plaintiff's decedent.At the time of the accident, the defendant was eighty-one years old.As a result of the accident, Cheryl Sierocki suffered a broken neck and other bodily injuries which resulted in her death on September 28, 1984.

Plaintiff alleged in her complaint that the defendant knew or had reason to know that Edith Faust was not competent to drive a motor vehicle and that she was so physically or mentally impaired as to constitute a danger and a nuisance to the public.The complaint further alleged that defendant and Edith Faust had developed a special relationship in that Edith Faust had become dependent on defendant, and, as a result of this special relationship, defendant had certain duties to the public in general and to Cheryl Sierocki in particular.Plaintiff further alleged that defendant's breach of those duties was the proximate cause of Cheryl Sierocki's death.

Edith Faust came to live in the home of defendant in 1973, after defendant's wife died.They shared household expenses on an equal basis.Each owned an automobile, but defendant had a second set of keys to Faust's automobile.Defendant noticed that Faust experienced a personality change which began six to eight months before the accident.She failed to take care of her automobile, failed to renew her driver's license, and did not get insurance for her car.Also, Faust did not meet her obligations with regard to paying her share of the household expenses.Prior to the accident, defendant learned that Faust had received a ticket for going the wrong way on a freeway and that she had become lost on the highway on at least one occasion.

The defendant contacted an attorney in September, 1984, in an attempt to get Faust's children to get her to a doctor and to get her off the road.Approximately three days before the accident, Edith Faust became angry at defendant because he told her that she should not drive.Charlotte Sides, Faust's daughter, stated in an affidavit that she had given Faust's car keys to defendant and had told him not to give them back to Faust.In his testimony, defendant stated that no one had ever asked him to hide the keys and indicated that he returned Faust's extra set of car keys to her at the time that she returned his house keys.

Defendant had never been appointed Faust's guardian or custodian and was never given a power of attorney by her.

On August 5, 1986, defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8), contending that plaintiff had failed to state a claim on which relief could be granted.

On October 31, 1986, the trial court granted the motion for summary disposition, stating:

"I am of the opinion that plaintiff's complaint fails to establish a legal duty owed by defendant to plaintiff that is recognized by the statutory or case law of this jurisdiction.Further, I find that plaintiff's claim as set forth in his [sic] pleadings is so clearly unenforceable that no factual development can justify a right to recovery."

The standard governing this Court's review of a denial of a motion for summary disposition under MCR 2.116(C)(8) is well settled.In New Hampshire Ins. Group v. Labombard, 155 Mich.App. 369, 372, 399 N.W.2d 527(1986), lv. den.428 Mich. 911(1987), this Court stated:

"A motion for summary disposition under MCR 2.116(C)(8) seeks to test the genuineness of a claim by challenging the legal adequacy of the pleadings.The test which a court applies in considering a motion under MCR 2.116(C)(8) is whether the plaintiffs' [sic] claim, as stated in the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery....In addressing a motion under this provision, the trial court accepts as true all well pleaded facts....In a negligence case, summary disposition is properly granted pursuant to MCR 2.116(C)(8) if it is determined as a matter of law that the defendant owed no duty to the plaintiff."(Citations omitted.)

In the case at bar, defendant argues that plaintiff has failed to state a valid claim because defendant owed no duty to plaintiff's decedent.This Court agrees.

In a negligence action, the plaintiff must prove four elements: (1) that the defendant owed a duty to the plaintiff; (2) that the defendant breached that duty; (3) that the defendant's breach of that duty was a proximate cause of the plaintiff's damages; and (4) that the plaintiff suffered damages.Dumka v. Quaderer, 151 Mich.App. 68, 72, 390 N.W.2d 200(1986), lv. den.426 Mich. 861(1986).In a negligence case, a duty may be defined as "an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another."Farwell v. Keaton, 396 Mich. 281, 286, 240 N.W.2d 217(1976), reh. den.397 Mich. 958(1976).The question whether a duty exists is one of law to be decided by the trial court.Smith v. Allendale Mutual Ins. Co., 410 Mich. 685, 713, 303 N.W.2d 702(1981), reh. den.411 Mich. 1154(1981).

As a general rule, there is no duty to protect an individual who is endangered by the conduct of a third person.Duvall v. Goldin, 139 Mich.App. 342, 350-351, 362 N.W.2d 275(1984), lv. den.422 Mich. 976(1985).In determining whether a legal duty should be imposed, the trial court should balance the societal interests involved, the severity of the risk, the burden upon the defendant, the likelihood of occurrence, and the relationship between the parties.Swartz v. Huffmaster Alarms Systems, Inc., 145 Mich.App. 431, 434, 377 N.W.2d 393(1985).A duty of reasonable care may arise where one stands in a special relationship with either the victim or the person causing the injury.Duvall, supra139 Mich.App. at 351, 362 N.W.2d 275.

In the case at bar, plaintiff alleges that defendant stood in such a special relationship to Edith Faust as to create a duty of reasonable care on the part of defendant.On appeal, plaintiff argues that the special relationship between defendant and Faust was that of a de facto guardian and ward.Defendant, on the other hand, contends that defendant was no more than Faust's roommate and that this is not the type of relationship that the appellate courts of this state have recognized as a special relationship.

This Court has imposed a duty of reasonable care upon psychiatrists who determine, or, according to the standard of their profession, should determine, that a patient poses a serious danger of violence to a readily identifiable person.Bardoni v. Kim, 151 Mich.App. 169, 390 N.W.2d 218(1986), lv. den.426 Mich. 863(1986);Hinkelman v. Borgess Medical Center, 157 Mich.App. 314, 321-322, 403 N.W.2d 547(1987), lv. den.428 Mich. 905(1987).This duty is premised on the special relationship of control over the patient by the psychiatrist.Hinkelman, supra at 322, 403 N.W.2d 547.In the case at bar, there is no claim that plaintiff's decedent was a readily identifiable potential victim of Faust's "violence."Thus, the trial court was correct in refusing to find a special relationship sufficient to impose upon defendant a duty of reasonable care.

In Duvall, supra139 Mich.App. at 352, 362 N.W.2d 275, this Court reversed the...