Smith v. Stolberg

• Decision Date: 18 August 1998
• Docket Number: Docket No. 202848
• Citation: 231 Mich.App. 256,586 N.W.2d 103
• Parties: Robert D. SMITH, Plaintiff-Appellant, v. Donald STOLBERG and Goldpaugh and Associates, P.C., Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 103

586 N.W.2d 103

231 Mich.App. 256

Robert D. SMITH, Plaintiff-Appellant, v. Donald STOLBERG and Goldpaugh and Associates, P.C. Defendants-Appellees.

Docket No. 202848.

Court of Appeals of Michigan.

Submitted March 10, 1998, at Detroit.

Decided Aug. 18, 1998, at 9:05 a.m.

Released for Publication Nov. 18, 1998.

Hilborn & Hilborn, P.C. by George A. Hilborn and Craig E. Hilborn, Bingham Farms, for Plaintiff.

Lipson, Neilson, Jacobs & Cole, P.C. by Joseph P. Garin, Troy, for defendant.

Before YOUNG, P.J., and MICHAEL J. KELLY and DOCTOROFF, JJ.

DOCTOROFF, Judge.

Plaintiff appeals as of right the trial court orders denying his motion for reconsideration and granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(8). We affirm in part and reverse in part.

On September 6, 1994, plaintiff claims that defendant Stolberg pushed him into a bench during a court appearance at which defendant represented plaintiff's daughter-in-law in a child custody dispute. Defendant claims that plaintiff spit on him, and he "instinctively" raised his hands to push plaintiff away in order to protect himself. On September 5, 1995, plaintiff filed a complaint alleging assault and battery and negligence. The complaint also named defendant's employer, Goldpaugh and Associates, P.C., as a defendant under a respondeat superior theory. On December 1, 1995, plaintiff filed a first amended complaint alleging a cause of action in negligence only. The trial court granted summary disposition in favor of defendants pursuant to MCR 2.116(C)(8) on the grounds that plaintiff had failed to state a claim upon which relief could be granted.

A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. Eason v. Coggins Memorial Christian Methodist Episcopal Church, 210 Mich.App. 261, 263, 532 N.W.2d 882 (1995). This Court reviews de novo a trial court's decision regarding a motion for summary disposition under MCR 2.116(C)(8) to determine whether the claim is so clearly unenforceable as a matter of law that no factual development could establish the claim and justify recovery. Id. All factual allegations supporting the claim, and any reasonable inference or conclusions that can be drawn from the facts, are accepted as true. Id. In a negligence action, summary disposition is proper if it is determined as a matter of law that the defendant owed no duty to the plaintiff under the alleged facts. Id.

A cause of action for negligence requires that the plaintiff demonstrate that (1) the defendant owed a duty to the plaintiff, (2) the defendant breached the duty, (3) the defendant's breach of the duty proximately caused the plaintiff's injuries, and (4) the plaintiff suffered damages. Richardson v. Michigan Humane Society, 221 Mich.App. 526, 528, 561 N.W.2d 873 (1997). Duty is an obligation to conform to a specific standard of care toward another as recognized under the law. Halbrook v. Honda Motor Co., Ltd., 224 Mich.App. 437, 440-441, 569 N.W.2d 836 (1997).

While plaintiff couches his claim in terms of a breach of defendant's duty "not to engage in disruptive behavior, not to speak to opposing parties in a case in which defendant is engaged as counsel, and not to touch or strike members of the opposite parties' family," plaintiff is essentially alleging an intentional, offensive touching. Therefore, plaintiff's proper cause of action is for the intentional tort of battery, and not negligence. Sudul v. Hamtramck, 221 Mich.App. 455, 458, 477, 562 N.W.2d 478 (1997). Accordingly, the trial court properly granted summary disposition in favor of defendants with regard to plaintiff's negligence claim.

Plaintiff's second argument on appeal is that the trial court erred in denying his motion for reconsideration with respect to the court's interpretation of the meaning and scope of the pleadings on his assault and battery theory against defendant Stolberg pursuant to MCR 2.111(B)(1). We agree.

An appellate court's reversal of a trial court's decision concerning the meaning and scope of pleadings is appropriate only where the trial court abused its discretion. Dacon v. Transue, 441 Mich. 315, 328, 490 N.W.2d 369 (1992). MCR 2.111(B)(1) provides that a complaint must contain "[a] statement of facts ... with the specific allegations necessary reasonably to inform the adverse party of the nature of the claims the adverse party is called on to defend." The purpose of the rule is to "avoid two opposite, but equivalent, evils ... the straightjacket of ancient forms of action ... [and] ambiguous and uninformative pleading." Dacon, supra at 329, 490 N.W.2d 369. Extreme formalism leads to dismissal of "potentially meritorious claims" and extreme ambiguity "undermines a defendant's opportunity to present a defense." Id. Where the new theory fit within the "scope of the general factual allegations" previously pleaded in support of another claim, this Court has found that a complaint met the pleading requirements set forth under MCR 2.111(B)(1). Iron Co. v. Sundberg, Carlson & Associates, Inc., 222 Mich.App. 120, 124, 564 N.W.2d 78 (1997).

An assault is ...