Opinion
No. 330979
03-21-2017
ESTATE OF ROBERT MARCYAN, by JOSEPH MARCYAN, Personal Representative, Plaintiff-Appellant, and RICHARD MARCYAN, Plaintiff, v. MICHAEL PATRICK MURPHY HAMILTON, Defendant, and MARK HAMILTON, Defendant-Appellee.
UNPUBLISHED Jackson Circuit Court
LC No. 14-002828-NO Before: BECKERING, P.J., and O'CONNELL and BORRELLO, JJ. PER CURIAM.
Plaintiff, Joseph Marcyan, appeals as of right the trial court's order granting summary disposition on his claims against defendant, Mark Hamilton, under MCR 2.116(C)(10). Marcyan sued on behalf of his deceased brother, Robert Marcyan, who was shot and killed by Hamilton's mentally ill son, Mike, when Robert was inspecting the porch of Hamilton's cabin for repairs. We affirm.
I. BACKGROUND
On the afternoon of September 8, 2012, Robert Marcyan and his brother Richard (Rick) went to Hamilton's cabin to look into doing repairs on Hamilton's deck. While the parties dispute whether Hamilton knew that the Marcyans would be going to his cabin that day, at his deposition, Rick testified that he did not think that Hamilton knew his son Mike was there. Hamilton testified that he was aware that his son was in treatment for mental illnesses, including paranoia and mood swings, which seemed to be getting worse.
According to Rick, when he knocked on the cabin's door, Mike came onto the porch without a shirt and stretching as if he had just woken up. Rick and Mike conversed briefly and Mike gave Hamilton's phone number to Rick. While Rick was on the phone with Hamilton to discuss what repairs needed to be made on the deck, Mike came onto the porch with a gun and shot Robert in the head without warning. Mike then fired six or seven shots at Rick.
Marcyan's complaint alleged in pertinent part counts of wrongful death and premises liability negligence against Hamilton. Hamilton moved for summary disposition under MCR 2.116(C)(10), asserting that he had no duty to protect Marcyan from the criminal actions of third parties and that he was unaware that Mike was staying at the cabin or posed an imminent and specific danger on the property. Marcyan responded that the contractual relationship between Robert and Hamilton obligated Hamilton to warn Robert about Mike's presence and the danger he posed.
Following arguments on the motion, the trial court ruled that there was no genuine issue of material fact regarding Hamilton's duty to warn the Marcyans and granted summary disposition under MCR 2.116(C)(10). Specifically, it ruled that "[e]ven if [Hamilton] had known that his son was there, he had no duty to warn the plaintiffs in this case that his son was there, that his son was acting erratically, that his son may or may not have a gun. And the absence of a duty precludes any liability . . . ." Marcyan now appeals.
II. STANDARDS OF REVIEW
This Court reviews de novo the trial court's decision on a motion for summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999); Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d 223 (2013). A party is entitled to summary disposition under MCR 2.116(C)(10) if "there is no genuine issue as to any material fact, and the moving party is entitled to judgment . . . as a matter of law." The trial court must consider all the documentary evidence in the light most favorable to the nonmoving party. MCR 2.116(G)(5); Maiden, 461 Mich at 120. A genuine issue of material fact exists if, when viewing the record in the light most favorable to the nonmoving party, reasonable minds could differ on the issue. Gorman, 302 Mich App at 116. Whether a defendant owed a plaintiff a duty is a question of law that this Court reviews de novo. In re Certified Question From the Fourteenth Dist Court of Appeals of Texas, 479 Mich 498, 504; 740 NW2d 206 (2007).
III. ANALYSIS
Marcyan argues that the trial court erred in ruling that Hamilton did not owe a duty to protect Robert from Mike's criminal actions. We disagree.
A party may maintain a negligence action, including a premises liability action, only if the defendant had a duty to conform to a particular standard of conduct. Riddle v McLouth Steel Prods Corp, 440 Mich 85, 96; 485 NW2d 676 (1992). "Duty is a legally recognized obligation to conform to a particular standard of conduct toward another." Ross v Glaser, 220 Mich App 183, 186; 559 NW2d 331 (1996).
There is no general legal duty to aid or protect another. Id. at 186-187. The only exception is when a special relationship exists between the parties. Id. at 187. There is also no general duty to protect another from the criminal attack of a third party. Bell & Hudson, PC v Buhl Realty Co, 185 Mich App 714, 717; 462 NW2d 851, 853 (1990). Again, there is an exception when a special relationship exists between the parties. Id. at 717. Finally, a premises owner has a duty to protect invitees—persons who enter the owner's premises at his or her express or implied invitation—from hidden or latent defects on his or her property. Riddle, 440 Mich at 90-91. However, a landowner does not have a duty to protect invitees from the criminal acts of third parties. Bailey v Schaaf, 494 Mich 595, 614; 835 NW2d 413 (2013). The landlord's duty is limited to expediting police involvement when the landlord has notice of the risk of imminent harm. Id.
Special relationships are generally those relationships in which "one person entrusts himself to the control and protection of another, with a consequent loss of control to protect himself." Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418 NW2d 381 (1988). These special relationships include those between a common carrier and passengers, an innkeeper and guests, and an employer and employees. Id. A landowner-invitee relationship is not one of these relationships. See id. at 501. And while a merchant has the obligation to protect its business invitees, that obligation is limited to the duty to reasonably expedite police involvement. MacDonald v PKT, Inc, 464 Mich 322, 337-338, 347; 628 NW2d 33 (2001).
Marcyan recognizes that generally there is no duty to protect others from the criminal actions of third parties but argues that an exception to the general duty rules exists because he was a business invitee onto Hamilton's property, and Hamilton's relationship with Mike created a special relationship such that Hamilton had a duty to protect Marcyan. We disagree because Marcyan was an invitee onto Hamilton's property, but Hamilton was not a merchant and no other special relationship applies.
Generally, a landowner is not required to protect his or her invitees against the criminal acts of third parties. Bailey, 494 Mich at 614. Exceptions exist for common carries, innkeepers, and employers. Williams, 429 Mich at 499. In this case, Mike was a third party to the relationship that existed between Robert and Hamilton. Hamilton was not a carrier, innkeeper, or employer, and no other facts indicate that Robert had entrusted himself to the protection and control of Hamilton such that Hamilton was required to protect Robert. The relationship was one of a landowner-invitee, under which Hamilton was not required to protect Robert from the criminal acts of third parties. We conclude that no special relationship existed that would have required Hamilton to protect Robert from Mike.
Marcyan argues that the relationship between Hamilton and Mike created a special circumstance. Marcyan premises this argument on Ross, 220 Mich App at 186, in which the defendant and the criminal third party were family members.
In Ross, the defendant was a father whose agitated, mentally ill son shot the plaintiff. Id. at 184. The defendant handed his son a loaded gun before his son shot the plaintiff. Id. This Court explained that the defendant's act of handing his son a loaded gun was one of misfeasance (acting negligently) rather than nonfeasance (failing to act). Id. at 186-187. Accordingly, general negligence rules regarding duty to avoid negligent conduct applied to the defendant's actions. See id. at 187.
Ross is clearly distinguishable because this case is not a case of misfeasance, it is a case of nonfeasance. While Mike was mentally ill and shot Robert with a gun, Hamilton did not hand Mike the gun. Marcyan alleges that it was Hamilton's failure to act—specifically, his failure to warn Robert about Mike's mental illness and presence on the property—that caused Robert's death, not that Hamilton actively contributed to the shooting. Even presuming that the disputed facts regarding whether Hamilton knew the Marcyans would be going to the cabin were true, this is a case of nonfeasance, not a case of misfeasance. Ross does not apply.
Finally, there is no indication that Hamilton was aware that Mike posed an imminent danger on the property. "Notice is critical to determination whether a landlord's duty is triggered; without notice that alerts the landlord to a risk of imminent harm, it may continue to presume that individuals on the premises will not violate the criminal law." Bailey, 494 Mich at 615. Because Hamilton had no notice that Mike posed a danger on the premises, he did not violate the duties that he owed the Marcyans.
We affirm.
/s/ Jane M. Beckering
/s/ Peter D. O'Connell
/s/ Stephen L. Borrello