Ross v. Glaser

559 N.W.2d 331, 220 Mich. App. 183

• Court: Michigan Court of Appeals
• Decided: February 25, 1997
• Docket: Docket 166014
• Status: Published

Opinions

Marilyn Kelly, J.

Plaintiff appeals as of right and defendant cross-appeals from an order granting summary disposition to defendant in this wrongful death action pursuant to MCR 2.116(C)(8). Plaintiff argues that it was for the jury to decide whether defendant could be held liable for giving a handgun to his mentally impaired son who used it to kill plaintiffs decedent. We reverse.

i

On September 29, 1991, Anthony Glaser was outside his parents’ home. Four friends of decedent’s family engaged him in a verbal altercation. Apparently, there was a history of tension between the Glaser family and the Ross family. Members of the Ross family and neighborhood rivals had assaulted or harassed Anthony, who suffered from a psychosis and other mental disturbances. The encounters caused Anthony to purchase three guns in the summer of 1991.

On the day in question, neighborhood youths had been taunting Anthony. In an agitated state, he entered the family house and yelled to defendant to hand him one of the guns. Defendant complied. Anthony obscured the gun from view behind his waistband and returned outside. Defendant followed and attempted to physically restrain Anthony while calling for neighbors to contact the police.

When police officers arrived, defendant and his wife argued with them regarding the ineffectiveness of the police in dealing with the harassment. In the meantime, Anthony got into his automobile and drove away. Within minutes, he encountered plaintiffs decedent outside a neighborhood store and shot him to death. Anthony was found guilty but mentally ill of second-degree murder.

Plaintiff then filed this wrongful death action against defendant. In it, she claims that defendant was negligent for handing a loaded gun to his unstable son, knowing his agitated state and the history of confrontation between the families.

Defendant moved for summary disposition, arguing that he owed no duty to protect third parties from Anthony’s criminal acts. He also claimed that his act of handing Anthony the gun was not the proximate cause of the death. The trial court relied on Bell & Hudson, PC v Buhl Realty Co, 185 Mich App 714; 462 NW2d 851 (1990). It ruled that the familial relationship was insufficient to impose a duty upon defendant to protect the general public or plaintiffs decedent from Anthony’s criminal acts.

n

As part of a prima facie case of negligence, a plaintiff must prove that the defendant owed him a duty. Schultz v Consumers Power Co, 443 Mich 445, 449; 506 NW2d 175 (1993). Duty is a legally recognized obligation to conform to a particular standard of conduct toward another. Chivas v Koehler, 182 Mich App 467, 475; 453 NW2d 264 (1990). Duty comprehends whether the defendant is under any obligation to the plaintiff to avoid negligent conduct; it does not include the nature of the obligation. Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977). If the court determines as a matter of law that a defendant owed no duty to a plaintiff, summary disposition is properly granted under MCR 2.116(C)(8). Dykema v Gus Macker Enterprises, Inc, 196 Mich App 6, 9; 492 NW2d 472 (1992).

In this case, defendant argues that he has no duty to control the conduct of third parties absent a special relationship to them, particularly when the conduct is criminal. See 2 Restatement Torts, 2d, §§ 314-315, pp 116-123. He asserts that the father-son relationship is insufficient to establish the required special relationship that would impose a duty on him. See generally Bell & Hudson, PC, supra.

The argument is unavailing. Michigan courts have distinguished active misconduct causing personal injury (misfeasance) and passive inaction or the failure to protect others from harm (nonfeasance). Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 498; 418 NW2d 381 (1988). Generally, with respect to nonfeasance, there is no legal duty that obligates a person to aid or protect another. Id. at 498-499. An exception has developed where a special relationship exists between the persons. Id. at 499; Dykema, supra at 8; Bell & Hudson, supra.

However, defendant’s act of handing a loaded gun to Anthony was not one of nonfeasance, but rather misfeasance. Therefore, the special relationship doctrine is inapplicable, and the trial court erred in relying on Bell & Hudson, supra. Instead, we must determine whether defendant had a duty to refrain from handing Anthony a loaded weapon.

Several considerations underlie the determination whether a duty exists: (1) the foreseeability of the harm; (2) the degree of certainty of injury; (3) the closeness of the connection between the conduct and the injury; (4) the moral blame attached to the conduct; (5) the public policy of preventing future harm; and (6) the burdens and consequences of imposing a duty and the resulting liability for breach. Buczkowski v McKay, 441 Mich 96, 101, n 4; 490 NW2d 330 (1992); Babula v Robertson, 212 Mich App 45, 49; 536 NW2d 834 (1995).

As to foreseeability, we determine whether it is foreseeable that the conduct may create a risk of harm to the victim and whether the result and intervening causes were foreseeable. Moning, supra at 439; Berry v J & D Auto Dismantlers, Inc, 195 Mich App 476, 481; 491 NW2d 585 (1992).

Looking at the record in this case, Anthony was chronically mentally unstable, having been diagnosed as paranoid schizophrenic and hospitalized numerous times. An intense neighborhood conflict existed between Anthony and the Ross family and their “backers.” Numerous police reports were filed because of this conflict during the summer and fall of 1991. As a result of the conflict, Anthony purchased three guns that summer. On the day of the shooting, four young men harassed Anthony. He ran into the house and yelled to defendant to get his gun. Despite his knowledge of his son’s mental instability and his awareness of the neighborhood conflict which was manifesting itself at that very moment, defendant handed the gun to Anthony.

Under these circumstances, the harm was foreseeable. When defendant handed the gun to Anthony, it was foreseeable that Anthony would shoot someone. It is true that the harm did not befall one of the four antagonists while outside the Glaser home. Nevertheless, when defendant gave the gun to Anthony, it was foreseeable that he would respond to a perceived threat by firing it at a member of the Ross family. The Rosses were at the center of the antagonism. It is not necessary that the mariner in which a person might suffer injury be foreseen or anticipated in specific detail. Babula, supra at 53.

With respect to the issue of duty, the dissent erroneously maintains that a duty should not be imposed here, for the sole reason that the shooting was unforeseeable. Our Supreme Court has held that the question of duty depends only in part on foreseeability. Other considerations are usually more important. Buczkowski, supra at 101.

In Buczkowski, the Court held that a duty should not be imposed on a retailer who sold ammunition to an allegedly incompetent person who later injured another while using the ammunition. The Court noted that it was unforeseeable what action the customer would take with the ammunition. The Court further stated:

Where foreseeability fails as an adequate template for the existence of a duty, recourse must be had to the basic issues of policy underlying the core problem whether the plaintiffs interests are entitled to legal protection against the defendant’s conduct. [Id. at 102.]

The Court noted that a duty could be imposed despite the actual lack of foreseeability. Id. at 108. In Buckzkowski, because there was no evidence that the customer acted in a threatening manner or was legally incompetent, the Court declined to impose, a duty on the defendant. Id. at 109.

Here, the relationship between the parties is much different from that in Buczkowski. Defendant knew that his son was mentally incompetent, had been hospitalized several times due to his mental illness and was subject to “rage attacks” at the slightest provocation. Under those circumstances, defendant had a duty not to hand his son a loaded weapon. The likelihood of injury is high when a mentally ill individual is handed a loaded gun while in an agitated state and in conflict with antagonists.

Moreover, the proximity in time between defendant’s conduct and the shooting of one of Anthony’s antagonists is sufficiently close to give rise to a duty. Anthony is the one most blameworthy for the shooting death of plaintiff’s decedent. However, defendant put the gun, in his hands. Under the circumstances, his conduct carries some degree of moral blame.¹

Finally, the determination that defendant owed a duty not to create an unreasonable risk of harm to others enforces a public policy that prevents harm to third persons. Moreover, the burden on members of the public in imposing a duty under these circumstances is slight. In Buczkowski, the Court examined whether a duty should be placed on a retailer to inquire into every customer’s possible use of potentially harmful products which the retailer sells. The Court concluded that such a duty would cause potentially harmful products either to become unavailable to law-abiding citizens or become more expensive as sellers redistributed the costs of potential liability to all consumers. Buczkowski, supra at 108. Therefore, the burden placed on the general public by imposing a duty on retailers was high.

Here, however, there is no increased burden, financial or otherwise, placed on members of the public, other than those who would give loaded weapons to mentally impaired individuals. They now have an increased burden to refrain from taking such action.

We note that we are not finding that defendant had a duty to act where he failed to act. Rather, he had a duty not to act if, by doing so, he would create an unreasonable risk of harm.

Further authority for our position is found in 2 of the Restatement Torts 2d, § 302B, p 88, which states:

An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.

sidered. Baker v Arbor Drugs, Inc, 215 Mich App 198, 203; 544 NW2d 727 (1996).

Illustration 11 gives the following example:

A gives an air rifle to B, a boy six years old. B intentionally shoots C, putting out C’s eye. A may be found to be negligent towards C. [Id. at 92.]

Here, even though Anthony is not a youngster, the evidence reveals that he was undergoing treatment for recurrent mental illness. Defendant knew this, but nevertheless gave him a loaded gun. He should have realized that the action could reasonably result in injury to another. Defendant did not merely fail to prevent harm; he increased the risk of harm by providing Anthony with the loaded gun.

The dissent states that a duty should not be imposed in this case because of a lack of evidence that Anthony’s problems had ever before manifested themselves in violence. However, the deposition testimony reveals that, in early childhood, Anthony began to develop severe obsessions and compulsions. Everything in his life had to be controlled and orderly. When it was not, he would “fly into rage attacks and be uncontrollable at times.” As he grew up, the rage reactions continued; he would become violent, break things and punch holes in walls. During adolescence, he was diagnosed as a paranoid schizophrenic. He felt persecuted and often felt things were worse than they actually were. While the dissent apparently would wait until the first person was injured before imposing a duty on defendant not to hand such an individual a loaded weapon, it is preferable to prevent the first incidence of violence from occurring. Therefore, the trial court erred in dismissing this case pursuant to MCR 2.116(C)(8), on the basis that defendant owed no duty to plaintiffs decedent.

m

The dissent reasons that this action was appropriately dismissed because defendant’s conduct cannot be characterized as a cause-in-fact of the shooting. However, defendant does not raise the issue of cause-in-fact in his cross-appeal. Defendant argues in his cross-appeal only that Anthony’s conduct was an intervening superseding cause and that his actions were not the legal cause of decedent’s death. Therefore, the cause-in-fact issue is not properly before this Court. Froling v Carpenter, 203 Mich App 368, 373; 512 NW2d 6 (1994).

Even if the issue were properly before us, a question of fact exists as to whether defendant’s handing a loaded weapon to Anthony was a cause-in-fact of the shooting. By giving Anthony a loaded weapon, defendant was in effect telling him that it was permissible to use it. Anthony did just that when he encountered decedent. But for defendant giving Anthony the gun, the shooting might not have occurred.

IV

In his cross-appeal, defendant argues that, even if a duty is found, summary disposition is still appropriate, because his actions were not the proximate cause of the death. The trial court specifically declined to address this issue. Because the facts are undisputed, we will address it now.

The question of proximate cause, like duty, depends in part on foreseeability. Moning, supra at 439. Proximate cause is that which operates to produce particular consequences without the intervention of any independent, unforeseen cause, without which the injuries would not have occurred. McMillan v Vliet, 422 Mich 570, 576; 374 NW2d 679 (1985); Babula, supra at 54. It involves a determination that the connection between the wrongful conduct and the injury is of such a nature that it is socially and economically desirable to hold the wrongdoer liable. Adas v Ames Color-File, 160 Mich App 297, 301; 407 NW2d 640 (1987). Proximate cause is usually a factual question to be decided by the jury. Schutte v Celotex Corp, 196 Mich App 135, 138; 492 NW2d 773 (1992).

Here, defendant argues that Anthony’s intervening acts of getting into the car, driving to a store and shooting decedent were superseding acts which cut off liability. However, an intervening act is not a superseding act if the injury was reasonably foreseeable. Hickey v Zezulka (On Resubmission), 439 Mich 408, 437 (Brickley, J), 447 (Riley, J); 487 NW2d 106 (1992). When a defendant’s negligence enhances the likelihood that the intervening act will occur, the act is reasonably foreseeable, and the defendant remains liable. Hickey, supra at 438 (Brickley, J), 447 (Riley, J).

Here, reasonable minds could differ on whether Anthony’s intervening actions superseded defendant’s actions, thus cutting off his liability. Arbelius v Poletti, 188 Mich App 14, 21; 469 NW2d 436 (1991). Anthony did not shoot a stranger. Nor did he shoot decedent weeks, days or even hours after the confrontation outside his parents’ home. Rather, Anthony shot decedent just minutes after defendant handed him a loaded gun, and just minutes after the confrontation outside his parents’ home had ended. It is arguable, then, that the trier of fact could find that Anthony’s intervening acts were foreseeable and should not relieve defendant of liability. Arbelius, supra at 19. Under the facts presented in this case, we conclude that summary disposition was inappropriate.

We reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

L. V. Bucci, J., I concur in the result only.

1 We do not, as the dissent suggests, focus only on moral blame in imposing a duty on defendant. It is but one of several factors to be con-