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recognizing that "violation of an ordinance has no bearing on the question of duty
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Docket No. 133131.
Decided April 30, 1992; approved for publication August 13, 1992, at 9:15 A.M.
Law Offices of Lee B. Steinberg, P.C. (by Barry N Schlussel), for the plaintiffs.
Kohl, Secrest, Wardle, Lynch, Clark Hampton (by Janet G. Callahan), for the defendant.
Before: WEAVER, P.J., and SULLIVAN and CORRIGAN, JJ.
In this premises liability action, plaintiffs appeal as of right an order granting summary disposition to defendant pursuant to MCR 2.116(C)(10). We affirm.
Plaintiffs' decedent, Gary M. Berry (hereafter plaintiff), was killed in an accident on defendant's premises on October 5, 1987. Defendant operates an automobile scrap yard and salvage operation in Wayne, Michigan. Plaintiff, a part-time mechanic, frequently purchased spare parts from defendant. On other occasions, he was permitted to remove parts from the yard without paying for them. He was quite familiar with the premises and was allowed to move around unescorted.
On the date of the accident, plaintiff went to defendant's scrap yard to obtain a battery cable for a Chrysler Cordoba, which he identified to defendant's employees only as "a Chrysler." He told the owner he had no money, but was allowed to go into the yard anyway.
Battery cables can usually be removed from a Chrysler vehicle from above, once the hood is open, but the Cordoba is an exception. The cables must be removed from underneath the car. Defendant owned both a "hi-lo truck" and another piece of equipment known as a "bobcat," either of which could be used to raise a car body off the ground. Plaintiff, however, did not ask for defendant's assistance in raising the Cordoba. Rather, without defendant's knowledge, he obtained two "bumper jacks" from other cars in the yard and used them to elevate the front of the car. None of defendant's employees observed plaintiff's actions or helped him to raise the vehicle. Plaintiff was killed when one of the jacks slipped from under the car body, which fell on him and crushed his chest.
Plaintiffs brought the present action, alleging various counts of negligence against defendant. Following discovery, defendant moved for summary disposition pursuant to MCR 2.116(C)(10) (no genuine issue of material fact). The trial court granted the motion. "[Defendant's employees] had no knowledge of what happened [after plaintiff went out into the yard]. There is no evidence of any knowledge. . . . [T]here was no notice that there was a dangerous condition on this lot . . .. "
A motion under MCR 2.116(C)(10) tests the factual support for a claim. It is properly granted only if it is impossible for the nonmovant's claim to be supported by evidence at trial because of some deficiency that cannot be overcome. Perez v KFC Nat'l Management Co, Inc, 183 Mich. App. 265, 267; 454 N.W.2d 145 (1990). The party opposing the motion, however, has the burden of showing a genuine issue for trial. Mirza v Maccabees Life Annuity Co, 187 Mich. App. 76, 80; 466 N.W.2d 340 (1991). MCR 2.116(G)(4). The reviewing court must determine whether the kind of record that might be developed would leave open an issue of fact upon which reasonable minds might differ. Wert v Afton, 190 Mich. App. 3, 4; 475 N.W.2d 403 (1991). If all reasonable persons would agree that "the injury caused [to] plaintiff was too insignificantly connected to or too remotely affected by the defendant's negligence," summary judgment is proper. Davis v Thornton, 384 Mich. 138, 142-143; 180 N.W.2d 11 (1970). In addition, there is no error if summary disposition of a factual issue is granted if that issue is not material to decision of the case. See Spencer v Ford Motor Co, 141 Mich. App. 356, 363; 367 N.W.2d 393 (1985).
On appeal, plaintiffs assert that three genuine issues of material fact preclude summary disposition. We disagree.
I
Plaintiffs first claim that the court should have allowed the jury to decide if plaintiff was a business invitee or a mere licensee. It is basic to the concept of "business invitee" that the presence of the plaintiff on the defendant's premises be intended to benefit the landowner as well as the visitor. There must be some benefit conferred on the landowner. See, e.g., Gage v Ford Motor Co, 102 Mich. App. 310, 318; 301 N.W.2d 517 (1980); Leveque v Leveque, 41 Mich. App. 127, 130-132; 199 N.W.2d 675 (1972). Because plaintiff's presence was intended solely for his own benefit, not defendant's, he is properly considered a licensee. In any case, plaintiff's status at the time of the accident is not necessary for decision of this case. A landowner's duty to a business invitee is to disclose known defects that the visitor is unlikely to discover on his own. Miller v Miller, 373 Mich. 519, 524; 129 N.W.2d 885 (1964). "The mere existence of a defect or danger is not enough to establish liability." McCord v United States Gypsum Co, 5 Mich. App. 126, 129; 145 N.W.2d 841 (1966), citing Kroll v Katz, 374 Mich. 364, 373; 132 N.W.2d 27 (1965), and Prosser, Torts (2d ed), p 459.
The present case is complicated because plaintiffs cannot identify the alleged "defect" on defendant's property. Initially, plaintiffs complained of the presence of unsafe bumper jacks. On appeal, however, this argument has been abandoned. Plaintiffs now allege that the "inherent muddiness of the unlevel ground" made the use of jacks dangerous. This Court need not consider an argument raised for the first time on appeal. Bloemsma v Auto Club Ins Ass'n (After Remand), 190 Mich. App. 686, 692; 476 N.W.2d 487 (1991).
It is plain that plaintiff's use of the jacks, not the jacks themselves, created the "hazard" (to the extent that one existed) on defendant's property. Plaintiff, a mechanic and regular visitor to defendant's salvage yard, knew the risks of using bumper jacks to elevate an automobile body. Reasonable minds could not find that the jacks presented a "hidden" danger of which plaintiff should have been warned, even if he were found to be a business invitee.
II
Plaintiffs next contend that a factual question exists regarding whether defendant owed a duty to plaintiff to foresee the danger of plaintiff's using the bumper jacks to raise the Cordoba. The existence of a legal duty is a question of law for the court to decide. Moning v Alfono, 400 Mich. 425, 436-437; 254 N.W.2d 759 (1977). Closely related to the question of duty is that of proximate cause. Balcer v Forbes, 188 Mich. App. 509, 511; 470 N.W.2d 453 (1991). "Both duty and cause depend on foreseeability — whether it is foreseeable that the actor's conduct may create a risk of harm to the victim, and whether the result of that conduct and intervening causes were foreseeable." Johnson v Bobbie's Party Store, 189 Mich. App. 652, 660; 473 N.W.2d 796 (1991).
Ordinarily, the determination of proximate cause is left to the trier of fact, but "if reasonable minds could not differ regarding the proximate cause of the plaintiff's injury, the court should rule as a matter of law." Vsetula v Whitmyer, 187 Mich. App. 675, 682; 468 N.W.2d 53 (1991). See also Richards v Pierce, 162 Mich. App. 308, 317; 412 N.W.2d 725 (1987).
No Michigan case is squarely on point. Defendant relies on Murday v Bales Trucking, Inc, 165 Mich. App. 747; 419 N.W.2d 451 (1988), which is instructive although not dispositive. In Bales, a child was injured when a pile of sand collapsed on her as she was digging a tunnel into it. She sued, alleging that the sand pile was an attractive nuisance. The plaintiff argued that because the defendants knew that children played on their property, they should have known that the children were digging in the sand pile and acted accordingly. Id. at 748-749, 753.
This Court affirmed the grant of summary disposition to the defendant:
[B]efore a defendant can be said to have tolerated or acquiesced to conduct of a third party unrelated to him, he must know or have reason to know of such a condition. . . .
[P]laintiff reasons that because defendants knew children played there [on defendant's property] it is reasonable to conclude that defendants should have also recognized that the land, which was used for excavating purposes, presented an unreasonable risk of harm. We are not persuaded. . . . [ Id. at 753].
Two cases from other jurisdictions also illustrate how proximate cause may be decided as a matter of law.
In Holbrook v Peric, 129 Ill. App.3d 996; 85 Ill Dec 163; 473 N.E.2d 531 (1984), the plaintiff was injured when his car struck a truck. The truck was last in a procession of three trucks that were sweeping the shoulder of an expressway near Chicago; the truck was stopped on the shoulder at the time. The plaintiff alleged that he had insufficient warning of the truck's presence, despite its several lights and warning signs. Id. at 997-998. His theory was that a sign on the truck's tailgate caused him to become "disoriented" and strike the truck. The court upheld the trial court's grant of summary disposition, holding that reasonable minds could only conclude that the defendant's alleged acts were not the proximate cause of the plaintiff's injury. The court also rejected the contention that the doctrine of comparative negligence "diminishes the need to protect remotely negligent defendants from liability," noting that if the case had been tried, "the court would have been required to direct a verdict in favor of defendants based on proximate cause." Id. at 1001.
Sharp v Fairbanks North Star Borough, 569 P.2d 178 (Alas, 1977), also presented a foreseeability question. The plaintiff was a child who was on his way home from an athletic event that the defendant school district had allowed him to participate in, but had not sponsored. Id. at 180. The plaintiff went out for lunch with a classmate and his mother; they stopped at a filling station, where the mother told the boys to pump the gas. Fuel spilled on the plaintiff's clothing, which his friend then intentionally ignited, injuring the plaintiff. After settling with the mother, the plaintiff sued the school district, alleging that its lack of supervision over the tournament had led to his injuries. The court held, as a matter of law, that the actions of the classmate's mother "constituted an unforeseeable superseding cause" and that the school district was not liable as a matter of law. Id. at 184.
In the present case, plaintiff's use of the bumper jacks to raise the Cordoba body was not reasonably foreseeable by defendant. Deposition testimony revealed that bumper jacks were not used by defendant's employees or other customers because a hydraulic jack was available. The owner provided an affidavit that he had never known plaintiff to use bumper jacks to elevate a car body and that he had no notice that plaintiff would need to raise the unidentified Chrysler to obtain the desired part. Defendant could not have reasonably predicted plaintiff's unusual course of action. Defendant's alleged negligence in permitting the jacks to remain in the scrapped vehicles cannot have been the proximate cause of plaintiff's death.
Further, Michigan recognizes a duty on the part of an adult plaintiff to exercise reasonable care for his own safety and protection; see SJI2d 10.04 ("It was the duty of the plaintiff, in connection with this occurrence, to use ordinary care for his own safety. . . ."). See also Jaworski v Great Scott Supermarkets, Inc, 403 Mich. 689, 700; 272 N.W.2d 518 (1978); Wigginton v Lansing, 129 Mich. App. 53, 61; 341 N.W.2d 228 (1983). As the Court said in Hale v Cooper, 271 Mich. 348, 354; 261 N.W. 54 (1935):
[D]efendants were entitled to assume that others using the highway in question would under the circumstances at the time use reasonable care themselves and take proper steps to avoid the risk of injury.
See also Sheahan v Northeast I R C R Corp, 212 Ill. App.3d 732; 156 Ill Dec 816; 571 N.E.2d 796 (1991) (defendant railroad not required to anticipate that the plaintiff's decedent would disregard warning at gate crossing).
III
Finally, plaintiffs claim that a factual issue arises regarding whether defendant's alleged violation of a City of Wayne ordinance, 832.15(B), constitutes "evidence of negligence." This argument is without merit. The ordinance regulates "the stacking or piling of material within [a] junk yard," requiring that it "not endanger . . . customers. . . ." Plaintiff's death was not caused in any way by the "stacking or piling" of material. A jury could not possibly find that defendant's alleged violation of the ordinance was even evidence of negligence. Further, violation of an ordinance has no bearing on the question of duty. Ward v Frank's Nursery Crafts, Inc, 186 Mich. App. 120, 135; 463 N.W.2d 442 (1990).
No material factual issues remain for consideration. Summary disposition was properly granted.
Affirmed. Costs to defendant.