DeMare v. Woodbridge 1985, Inc.

451 N.W.2d 871, 182 Mich. App. 356

• Court: Michigan Court of Appeals
• Decided: February 20, 1990
• Docket: Docket No. 110803
• Status: Published

Opinions

Weaver, J.

Plaintiffs appeal from the order granting defendant Nino’s Taboo’s motion for partial summary disposition, dismissing count ii, premises liability. We affirm.

Plaintiff Brian DeMare (hereinafter DeMare) was involved in an altercation with defendant Girardo Ñapóles when both were waiting for their cars after leaving Nino’s Taboo, a nightclub. They were separated by Taboo’s employees, and both drove away. Five hundred feet down the street from Taboo, DeMare was stopped and shot by Ñapóles and received serious injuries. Plaintiffs allege that Taboo breached its duty to maintain its premises in a safe condition for business invitees. In granting partial summary disposition in favor of Taboo, the trial judge found that plaintiff had left the premises and Taboo’s duty had ended.

Defendant moved for summary disposition on the ground that plaintiffs had failed to state a claim upon which relief could be granted. A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. Formall, Inc v Community Nat'l Bank of Pontiac, 166 Mich App 772, 777; 421 NW2d 289 (1988). All factual allegations in support of the claim are accepted as true, as well as all inferences which can be fairly drawn from those facts. Mills v White Castle System, Inc, 167 Mich App 202, 205; 421 NW2d 631 (1988), lv den 431 Mich 880 (1988). The motion should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Scameheorn v Bucks, 167 Mich App 302, 306; 421 NW2d 918 (1988), lv den 430 Mich 886 (1988).

The question of whether a duty exists is one of law for the court’s resolution. In a negligence case summary disposition is properly granted under MCR 2.116(C)(8) if it is determined as a matter of law that defendant owed no duty to plaintiff. Locklear v Stinson, 161 Mich App 713, 718; 411 NW2d 834 (1987). The general rule is that there is no duty obligating one person to aid or protect another. Exceptions to this rule arise when a special relationship exists between plaintiff and defendant. Owners and occupiers of land are in such a special relationship with their invitees. The possessor of land has a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land. Williams v Cunningham Drug Stores, Inc, 429 Mich 495; 418 NW2d 381 (1988). This duty ends when the invitee has left the premises and is no longer on the property owned or controlled by the defendant. Locklear v Stinson, supra.

On appeal plaintiffs argue that potential liability exists because DeMare was injured on property owned or controlled by Taboo. In the petition plaintiffs allege that DeMare was injured "at the intersection of Woodbridge and Orleans in the City of Detroit, approximately 500 feet from the entrance to defendant Taboo.” For Taboo to have a duty as to the condition of the public way, plaintiffs must show that Taboo had physically intruded upon the area in some manner or had done some act which either increased the existent hazard or created a new hazard. Berman v LaRose, 16 Mich App 55; 167 NW2d 471 (1969). In their petition plaintiffs allege that DeMare was injured while he and Ñapóles "were in the vicinity and within the control of defendant Taboo.” This is not sufficient to establish that Taboo owed DeMare a duty as to the condition of the public street some five hundred feet away from its entrance.

Appellants also assert that Taboo was aware of the danger presented by Ñapóles and breached its duty to warn DeMare of this danger while he was in the valet service area. However, the injury did not take place on Taboo’s premises. Taboo’s duty to DeMare ended when he left the premises. Locklear v Stinson, supra.

We are not persuaded by plaintiffs’ arguments. The trial judge did not err in granting defendant Nino’s Taboo’s motion for partial summary disposition. We affirm the judgment below.

Affirmed.

Sawyer, P.J., concurred.