Opinion
No. 338973
05-17-2018
ESTATE OF ELIZABETH SEDER, by RICHARD SEDER, Personal Representative, Plaintiff-Appellant, v. RICHARD CHARLES MOORE, Defendant-Appellee.
UNPUBLISHED Macomb Circuit Court
LC No. 2016-000391-NO Before: CAMERON, P.J., and FORT HOOD and GLEICHER, JJ. PER CURIAM.
In this negligence action, plaintiff, decedent's estate, by its personal representative, Richard Seder ("Seder"), appeals as of right an order granting defendant's motion for summary disposition. We affirm.
I. BACKGROUND
This action arises out of the death of decedent, who overdosed on alcohol and narcotic pain medication. On the evening of May 25, 2013, decedent asked defendant to come up to a bar where she was drinking and pick her up. Defendant arrived at the bar and attempted to get decedent to leave immediately, but she refused, and the two stayed at the bar for approximately 30 minutes. Before defendant could convince decedent to leave, Seder arrived. At the time, decedent and Seder were in the process of getting a divorce. Seder asked decedent to come back to the house to have a bonfire. Decedent refused, and she and Seder began to argue. A bouncer escorted Seder out of the bar. As he was being escorted out, Seder told defendant to make sure that decedent got home safe. Defendant said that he would.
Because decedent refused to let defendant drive her home, defendant agreed to let her follow him to her residence approximately a half mile away from the bar. After they arrived at decedent's house, defendant drove her to his house. According to defendant, she did not want to stay at her house and risk encountering Seder. At defendant's house, decedent asked for an alcoholic drink, but defendant said he did not have anything. However, decedent looked around and found a vodka bottle with approximately an inch of liquor left in it. She poured a mixed drink for herself and defendant. After that, defendant ordered food for delivery, but decedent did not eat any of it. Defendant observed decedent spill the contents of her purse onto the floor multiple times. Aggravated by her behavior, he went into the adjoining living room to watch a hockey game on the television. Defendant was able to see decedent at all times, and he would look over and check on her every five minutes. After 45 minutes to an hour, he noticed that decedent was sitting at the kitchen table with her head tilted back. Defendant walked into the kitchen, found decedent unresponsive and noticed that her skin was a grayish color. He began CPR and called 911. Decedent remained in a coma until her death on June 19, 2013.
Plaintiff filed the instant lawsuit, claiming defendant was negligent because he breached his duty to protect decedent. Defendant moved for summary disposition under MCR 2.116(C)(10), arguing that he was not obligated to help decedent because a special relationship did not exist between them that rendered him liable for her welfare. Defendant argued there was no question of material fact that existed regarding decedent's responsibility for her own alcohol and drug consumption, or her resulting death. The trial court explained on the record that there was no liability under a social host liability theory, but it took the issues of negligence and gross negligence under advisement. In a written opinion, the trial court dismissed any allegations of general negligence, stating that there was no evidence that defendant owed decedent a duty of care or that he had breached any such duty of care. It held that no special relationship existed between defendant and decedent that would give rise to a duty to protect decedent. The trial court also found that defendant had not acted with gross negligence, which was based on claims that defendant allowed decedent to drive drunk and drink to excess. Instead, the trial court observed that defendant acted properly when he called 911 upon discovering that decedent had fallen unconscious. On appeal, plaintiff argues that defendant is liable for decedent's death because he entered into a special relationship with her and engaged in a "gratuitous undertaking," both of which derive from his promise to Seder that he would get decedent home safely.
II. STANDARD OF REVIEW
This Court reviews the grant or denial of a motion for summary disposition de novo. Arias v Talon Dev Group, Inc, 239 Mich App 265, 266; 608 NW2d 484 (2000). "A motion brought under MCR 2.116(C)(10) tests the factual support for the plaintiff's claim." Id. This Court considers the "pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party." Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). Summary disposition "is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." Id. A genuine issue of material fact "exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v General Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003).
III. ANALYSIS
A. SPECIAL RELATIONSHIP
Seder first argues that defendant had a duty to protect decedent because they had entered into a special relationship. We disagree.
"The threshold question in a negligence case is whether the defendant owed a duty to the plaintiff." Brown v Brown, 478 Mich 545, 552; 739 NW2d 313 (2007) (quotation marks and citation omitted). " 'Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor's part for the benefit of the injured person.' " Id. (citation omitted). "Under Michigan common law, generally there is no duty for one person to aid or protect another, absent a special relationship . . . ." Chelik v Capitol Transport, LLC, 313 Mich App 83, 91; 880 NW2d 350 (2015).
Seder's argument focuses specifically on the issue of whether a special relationship existed between defendant and decedent. Without successfully demonstrating that a relationship existed between defendant and decedent, Seder cannot show that defendant had a duty to protect decedent, or that his breach of such a duty constituted general negligence, or gross negligence, and contributed to decedent's accidental death. Seder's claim that a special relationship was formed between defendant and decedent arises from a brief interaction between Seder and defendant. At the bar, Seder asked defendant to make sure that decedent made it home safe, to which defendant agreed. However, determining whether a special relationship existed, and whether defendant owed decedent a duty of care, requires consideration of a number of factors, including "the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented." Chelik, 313 Mich App at 90 (quotation marks and citation omitted).
A special relationship may exist in certain situations, such as between "common carriers and their passengers, innkeepers and their guests, and doctors and their patients," for example, although that is not an exhaustive list. Hill v Sears, Roebuck & Co, 492 Mich 651, 665 n 39; 822 NW2d 190 (2012). This Court has recognized that, in many cases, it may be difficult to determine whether a special relationship exists between two parties. To that end, this Court has held that a number of factors must be considered in determining whether a special relationship giving rise to a duty exists, including:
the societal interests involved, the severity of the risk, the burden upon the defendant . . . and the relationship between the parties . . . . Other factors which may give rise to a duty include the foreseeability of the [harm], the defendant's ability to comply with the proposed duty, the victim's inability to protect himself from the [harm], the cost of providing protection, and whether the plaintiff had bestowed some economic benefit on the defendant. [Murdock v Higgins, 208 Mich App 210, 215; 527 NW2d 1 (1994), aff'd 454 Mich 46 (1997).]Additionally, the Michigan Supreme Court has stated:
Social policy . . . has led the courts to recognize an exception to th[e] general rule [that there is no duty that obligates one person to aid or protect another] where a special relationship exists between a plaintiff and a defendant . . . . The rationale behind imposing a duty to protect in these special relationships is based on control. In each situation one person entrusts himself to the control and protection of another, with a consequent loss of control to protect himself. The duty to protect is imposed upon the person in control because he is best able to provide a place of safety. [Hill, 492 Mich at 666, quoting Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418 NW2d 381 (1988).]
Seder argues that a special relationship existed between defendant and decedent when defendant agreed to get decedent home safely. This argument fails. To begin, plaintiff provides no authority that supports the imposition of a duty based on such a casual request. Even if there was, defendant did ensure that decedent made it safely to her own house, and further ensured that she made it safely to his house. Defendant's "agreement" did not give rise to a duty to protect decedent from the consequences of self-imposed, self-destructive behavior. Even more, decedent did not relinquish control over her own safety to defendant, even when defendant attempted to convince her to do so. Defendant attempted to convince decedent to let him drive her home because he felt that she should not drive after drinking, but she would not relinquish her keys or agree to leave her vehicle behind. Additionally, decedent found a bottle of vodka in defendant's house, despite his attempts to convince her to stop drinking. The record evidence clearly demonstrates that decedent refused to allow defendant to help her, and she did not "entrust [herself] to the control and protection of another" to the extent required to find that a special relationship had been formed. Hill, 492 Mich at 667.
Moreover, decedent's death was not clearly foreseeable to defendant. " '[B]efore a duty can be imposed, there must be a relationship between the parties and the harm must have been foreseeable.' " Id. at 661 (citation omitted). Defendant could not have foreseen that, while he sat in the living room and watched the television, decedent would overdose on a mix of alcohol and narcotic pain pills while sitting in her chair in the kitchen. The record indicates that defendant was not aware of the fact that decedent had mixed narcotics with alcohol, or that decedent was on the brink of death. Therefore, it cannot be said that decedent's death was foreseeable, or that defendant should be found to have had a duty to prevent it.
Seder has failed to show that a special relationship existed between defendant and decedent, or that decedent's death was foreseeable to defendant. "If either of these two factors is lacking, then it is unnecessary to consider any of the remaining factors." Id. at 661. To hold otherwise would be to impose a duty on defendant to save decedent from herself. Seder failed to identify any case law that provides that, without implying social host liability, defendant should have stopped decedent—an adult woman—from drinking. And Seder correctly acknowledges that he cannot recover under a theory of social host liability, primarily because social host liability for "furnishing alcohol does not extend to social hosts who serve alcohol to adults . . . ." Kuehn v Edward Rose & Sons, 189 Mich App 288, 290; 472 NW2d 59 (1991). It is clear that Seder's argument herein was an attempt to avoid raising the issue of social host liability. Since defendant had no special relationship with decedent, and decedent's death was not foreseeable to defendant, plaintiff's claim is without merit.
B. GRATUITOUS UNDERTAKING
Seder also argues that defendant owed decedent a duty because his agreement with Seder's request constituted a "gratuitous undertaking." We disagree.
Seder states that there are many cases that hold that a duty of due care exists where an individual gratuitously agrees to assume responsibility for the protection of a third person, but cites only Smith v Allendale Mutual Ins Co, 410 Mich 685; 303 NW2d 702 (1981), which involved fire inspection services rendered by an insurance company. In Smith, the Michigan Supreme Court stated that "an actor who 'undertakes, gratuitously or for consideration, to render services to another' may in certain circumstances be liable to foreseeable third persons for negligence." Id. at 710 (citation omitted). However, contrary to Seder's contention, our Supreme Court did not find that a duty of care existed for the protection of a third party in Smith, and it held that "[the defendants] are not liable to plaintiffs . . . because on these records the relationships did not give rise to an undertaking creating a duty to inspect with due care." Id. at 713. It appears that the concept of a gratuitous undertaking has not been applied by Michigan courts outside of contractual relationships, although it is possible that a non-contractual gratuitous undertaking could arise in certain circumstances. According to Smith:
[A]n undertaking which may give rise to liability . . . may be gratuitous as well as contractual, [but] the evidence must show that the actor assumed an obligation or intended to render services for the benefit of another. Evidence demonstrating merely that a benefit was conferred upon another is not sufficient to establish an undertaking which betokens duty. [Id. at 717.]
There is no evidence in this case that defendant intended to confer a service for decedent's—or Seder's—benefit, or that he intentionally assumed an obligation to keep her safe, based on his acknowledgment of Seder's request to ensure decedent's safety. For all intents and purposes, defendant did successfully ensure that decedent got home safely. It was decedent's own self-destructive behavior that led to her passing. Defendant cannot be held accountable for decedent's death, where decedent willingly endangered herself by mixing alcohol and narcotics, of which defendant was entirely unaware. Defendant testified that he attempted to help decedent not out of awareness of an obligation to Seder, but because he was decedent's friend and he cared about her welfare. To impose a duty where defendant did not consciously or intentionally enter into an agreement with Seder would be an untenable application of the gratuitous undertaking doctrine, and thus, plaintiff's claim must fail.
Affirmed.
/s/ Thomas C. Cameron
/s/ Karen M. Fort Hood
/s/ Elizabeth L. Gleicher