Swartz v. Huffmaster Alarms Systems, Inc., Docket No. 80989
| Decision Date | 11 December 1985 |
| Docket Number | Docket No. 80989 |
| Parties | Donald B. SWARTZ and Gwen M. Swartz, Plaintiffs-Appellants, v. HUFFMASTER ALARMS SYSTEMS, INC. and Red Lobster Inns, of America, Inc., Defendants-Appellees, and Richard E. Taylor, Defendant. 145 Mich.App. 431, 377 N.W.2d 393 |
| Court | Court of Appeal of Michigan — District of US |
[145 MICHAPP 433] Wygonik & Walsh, by Richard Wygonik, Dearborn, for plaintiffs-appellants.
Vandeveer, Garzia, Tonkin, Kerr, Heaphy, Moore, Sills & Poling, P.C., by Joseph W. O'Brien, Detroit, for Huffmaster Alarms Systems, Inc.
Beresh & Prokopp, by Martha A. Churchill, Birmingham, for Red Lobster Inns of America, Inc.
Before BEASLEY, P.J., and J.H. GILLIS and KELLY, JJ.
Plaintiffs, Donald B. Swartz and Gwen M. Swartz, husband and wife, appeal from orders for summary judgment in favor of defendants Red Lobster Inns of America, Inc., and Huffmaster Alarms Systems, Inc., under GCR 1963, 117.2(1) now MCR 2.116(C)(8). Since Gwen's claim is a derivative one for loss of consortium, for convenience on appeal we use the word plaintiff in the singular to refer only to Donald's claim.
After having dinner at the Red Lobster Inn on the east side of Telegraph Road in Taylor, plaintiff Donald B. Swartz left the restaurant and was struck by a southbound automobile driven by defendant Richard E. Taylor, as he walked across Telegraph Road. When struck, plaintiff had crossed the northbound lanes, the center median [145 MICHAPP 434] and had entered the southbound lanes. The trial court granted defendants Red Lobster's and Huffmaster's motions for summary judgment on the ground that neither owed a duty to plaintiff to prevent or restrain him from leaving the restaurant.
On appeal, plaintiff claims that defendants each owed a duty to an impaired person to protect him from dangers he might encounter on well-traveled public roads adjacent to the business. Plaintiff says his impairment was a result of his intoxication, legal blindness and anxiety. The determination of whether a legal duty exists is essentially a question of whether the relationship between the actor and the plaintiff gives rise to any legal obligation on the actor's part to act for the benefit of the subsequently-injured person. 1
Thus, a legal duty is essentially an obligation recognized by law which requires an actor to conform to a certain standard of conduct for the protection of others against unreasonable risk. The determination of whether a duty should be imposed upon a defendant is based on a balancing of the societal interest involved, the severity of the risk, the burden upon the defendant, the likelihood of occurrence and the relationship between the parties.
Under the common law, there was not any duty to protect an individual who was endangered by the conduct of others. 2 In Michigan, the general rule regarding the duty of a business establishment to its invitees is that when it invites others onto its premises it must exercise ordinary care [145 MICHAPP 435] and prudence to keep the premises reasonably safe. 3
When, as a business invitee, plaintiff entered defendant Red Lobster Restaurant for the purpose of dining, defendant Red Lobster owed plaintiff a duty to exercise ordinary care for his safety while in the establishment. 4 Ordinary care is defined as that care which a reasonably prudent person would exercise in similar circumstances. When plaintiff left the restaurant and was no longer on property owned or controlled by defendant Red Lobster, the duty ended. In this case, there is no question that plaintiff had left defendants Red Lobster's property and had crossed several lanes of automobile traffic and a median before he was hit by a car. Plaintiff was not on property owned or controlled by defendant Red Lobster. Plaintiff admits these facts, but argues that while he was on the premises and while defendants owed him a duty of due care defendants breached their duty and that their breach was one proximate cause of his injuries. Plaintiff reasons: (1) that defendants knew, or should have known, that he was "impaired" before he left the premises, (2) that his impairment arose from alcoholic intoxication, legal blindness and "anxiety", and (3) that, confronted with knowledge of his impairment, defendants had a duty (a) to restrain him from leaving the premises, except in the care of a keeper or guardian, or (b) to communicate to him that he was "impaired" and, therefore, should not leave the premises, or (c) to take some other precautionary step for his safety. We do not agree. Before plaintiff was struck by the car in the southbound lanes of Telegraph Road, defendants' duty to him had ended.
Plaintiff specifically denies claiming under the [145 MICHAPP 436] dramshop act. 5 Other than under the dramshop act, defendants did not owe a duty to plaintiff to take special steps for his safety because he was alcoholically impaired. We do not look upon this as a "foreseeability" issue. It may well be foreseeable that an intoxicated person will wander into traffic and be hit by a car. This does not mean that a person who has had nothing to do with causing the intoxication, but who merely observes the drunkeness, has a duty to take some affirmative action to protect the drunk. As a matter of public policy, there is no such duty. In the circumstances of this case, we do not entrust to a jury that public policy question of whether there should be such a duty.
In this case, plaintiff made a belated effort to add the allegation that he was legally blind as a basis for expanding defendants' duty. Plaintiff did not plead that he was legally blind. No reference was made to M.C.L. Sec. 393.351; M.S.A. Sec. 17.581(1), which defines a "blind person", nor did plaintiff ever claim to have been carrying a white cane or that he possessed the statutory identification card issued for the legally blind. Neither did he seek to amend his pleadings to allege that he was, as he now says, "legally blind". Plaintiff did, however, claim on oral argument that he was "legally blind". However, even if he had raised the question in a proper...
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