Brown v. Michigan Bell Telephone, Inc.

572 N.W.2d 33, 225 Mich. App. 617
CourtMichigan Court of Appeals
DecidedJanuary 8, 1998
DocketDocket 188371
StatusPublished
Cited by1 cases

This text of 572 N.W.2d 33 (Brown v. Michigan Bell Telephone, Inc.) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Michigan Bell Telephone, Inc., 572 N.W.2d 33, 225 Mich. App. 617 (Mich. Ct. App. 1998).

Opinions

Jansen, J.

This case is before this Court on remand from the Supreme Court to consider the appeal as on leave granted. Brown v Michigan Bell Telephone, Inc, 450 Mich 853 (1995). Defendant Michigan Bell Telephone, Inc., appeals from a March 24, 1994, order denying its motion for summary disposition pursuant to MCR 2.116(C)(8). We affirm.

The facts of this case are not really in dispute. The incident occurred in the City of Flint on March 28, 1990, at approximately 9:30 P.M. Plaintiffs Tonya Brown and Anita Addison purchased some snacks at Hampton’s Party Store. The store was located on the southeast comer of the intersection of Saginaw Street and Russell Street. Defendant1 Michigan Bell Telephone owned two unenclosed, public pay telephones that were located on the northwest comer of Hampton’s Party Store. The telephones were located approximately 14½ feet from Russell Street (a residential street) and approximately 45 feet from Saginaw Street (a commercial street).

After purchasing the snacks, Tonya Brown was using one of the telephones while Anita Addison stood nearby. A car driven by Ruby Greer veered out [620]*620of control as she attempted to make a left turn from Saginaw Street onto Russell Street. The car struck both Tonya Brown and Anita Addison. Tonya lost the use of both of her legs, and her 8V2-month-old fetus (plaintiff Amber Vonetta Brown) was also lost as a result of the accident. Anita Addison suffered severe head injuries, which resulted in permanent brain damage.

Greer subsequently pleaded guilty of felonious driving. Greer had been smoking crack cocaine and drinking alcohol a few hours before the accident. Apparently, an armed robbery had occurred a few blocks north of Hampton’s Party Store. Greer, one of the robbery victims, fled the scene in a car. However, not only was Greer intoxicated at the time, but she had never driven a car before and did not have a driver’s license. Greer drove south on Saginaw Street for a few blocks at an excessive rate of speed before the car crashed into Hampton’s Party Store.

Plaintiffs filed a complaint against Michigan Bell and Hampton’s Party Store, asserting claims of negligence and premises liability. Michigan Bell moved for summary disposition pursuant to MCR 2.116(C)(8), arguing that it owed no duty to plaintiffs because the accident was unforeseeable and that Greer’s criminal driving was a superseding cause of plaintiffs’ injuries. The trial court denied the motion, ruling that defendant had a duty to plaintiffs to safely locate the public telephones, that it was foreseeable that a car would run off the road at the intersection, and that Greer’s driving was not an intervening cause operating to extinguish any liability of defendant. .

Defendant filed an application for leave to appeal in this Court. This Court denied leave in an unpub[621]*621lished order dated August 10, 1994 (Docket No. 174257). After denying defendant’s motion for rehearing of the order in an unpublished order dated September 26, 1994, defendant filed an application for leave to appeal in the Supreme Court. The Supreme Court, in lieu of granting leave to appeal, remanded the case to this Court for consideration as on leave granted. 450 Mich 853 (1995).

The trial court denied defendant’s motion under MCR 2.116(C)(8). We review de novo the trial court’s decision in this regard. Garvelink v Detroit News, 206 Mich App 604, 607; 522 NW2d 883 (1994). A motion for summary disposition under MCR 2.116(C)(8) is properly granted if the nonmoving party failed to state a claim upon which relief can be granted. Simko v Blake, 448 Mich 648, 654; 532 NW2d 842 (1995). A motion for summary disposition under MCR 2.116(C)(8) is properly granted if the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Simko, supra at 654. A motion for summary disposition is tested on the pleadings alone, and all factual allegations contained in the complaint must be accepted as true. Id.

On appeal, Michigan Bell first argues that it did not owe a duty to plaintiffs. Specifically, defendant argues that it is not reasonably foreseeable that a car will be recklessly operated, leave the roadway, and strike a public telephone adjacent to a building; that it is not reasonably foreseeable that an accident will occur where there is no allegation of a prior accident or injury to users of the public telephone; and that plaintiffs’ experts could not have provided a basis to deny summary disposition where those experts had no [622]*622prior knowledge or experience with the type of accident involved in this case.

We note from the outset that this case is being decided solely on the basis of MCR 2.116(C)(8). Therefore, we can rely only on the pleadings to determine whether plaintiffs’ complaint sets forth a claim upon which relief can be granted. Like the trial court, we examine only the pleadings without reference to any other documentary evidence, MCR 2.116(G)(5), in deciding whether defendant owed a duty to plaintiffs, specifically to have placed the telephones in a different location.

Duty is any obligation that the defendant has to the plaintiff to avoid negligent conduct. Simko, supra at 655. In negligence actions, the existence of a duty is a question of law for the court. Id. In determining whether a duty exists, courts look to different variables, including: foreseeability of the harm, existence of a relationship between the parties involved, degree of certainty of injury, closeness of connection between the conduct and the injury, moral blame attached to the conduct, policy of preventing future harm, and the burdens and consequences of imposing a duty and the resulting liability for breach. Buczkowski v McKay, 441 Mich 96, 100-101; 490 NW2d 330 (1992).

Our Supreme Court has held that utility companies are charged with a duty to protect against foreseeable harm. Groncki v Detroit Edison Co, 453 Mich 644, 654; 557 NW2d 289 (1996) (Brickley, C.J.), citing Schultz v Consumers Power Co, 443 Mich 445, 452; 506 [623]*623NW2d 175 (1993).2 In McMillan v State Hwy Comm, 426 Mich 46, 58; 393 NW2d 332 (1986), our Supreme Court specifically rejected a rule that a private utility company owes no duty to the occupants of a vehicle that leaves the traveled portion of the road. In McMillan, the plaintiff, a passenger in an automobile, was injured when the automobile left the traveled portion of the road and struck a utility pole owned by The Detroit Edison Company. The pole was located in the median approximately three feet from the traveled portion of the road. The Supreme Court stated:

[W]e are persuaded that the plaintiff should not be precluded, as a matter of law, from presenting her case to the jury. The question whether a duty exists, and the question whether the cause (here, the placement of the poles) was so significant and important to be regarded as a proximate cause of the plaintiff’s loss, depends “in part 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.” [Id. at 61-62, quoting Moning v Alfono, 400 Mich 425, 439; 254 NW2d 759 (1977).]

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Related

Ridley v. City of Detroit
590 N.W.2d 69 (Michigan Court of Appeals, 1998)

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Bluebook (online)
572 N.W.2d 33, 225 Mich. App. 617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-michigan-bell-telephone-inc-michctapp-1998.