Schenk v. Mercury Marine Division, Lowe Industries

399 N.W.2d 428, 155 Mich. App. 20

• Court: Michigan Court of Appeals
• Decided: October 6, 1986
• Docket: Docket 81104
• Status: Published

Opinions

H. W. Moes, J.

Plaintiff appeals as of right from the October 10, 1984, order granting defendant Robert Langeland’s motion for summary judgment in this negligence action. Although the order does not expressly state the grounds upon which summary judgment was granted, a review of the trial court’s oral findings and conclusions reveals that it was grounded upon GCR 1963, 117.2(1), now MCR 2.116(C)(8), failure to state a claim upon which relief can be granted.

A brief recitation of facts is necessary in disposing of this matter.

For some period of time prior to October 12, 1981, Venessa Vilcans, plaintiffs decedent, and defendant Robert Langeland were involved in a very close social relationship. Langeland was married; decedent was a widow. Langeland can be best generally termed an experienced outdoorsman. Decedent was not.

Langeland, for some fourteen years, went duck hunting with a friend, Donald Verberkmoes. Such a hunting trip was scheduled by Langeland and Verberkmoes for October 12, 1981, on the Muskegon River. Decedent invited herself along on the duck hunting trip and advised Langeland that she had purchased a duck stamp, a federal stamp, and low hip waders for the hunting trip.

Early on the morning of October 12, 1981, the three met at a restaurant and went to the boat launching site. The boat and motor were owned by Verberkmoes and were carried to the site on Langeland’s truck. The boat, with the motor mounted on it, was placed in the water. Langeland put on his full length water waders, but removed them for decedent to use, decedent’s hip waders being too short. The waders were insulated and had adjustable shoulder straps. A leather belt was placed around the top of the waders decedent was wearing. Langeland used another pair of full-length waders. The high waders were utilized because the river had overflowed and the water was high. Verberkmoes got into the boat first and went to the rear. Langeland next went to the middle of the boat and decedent pushed the boat from shore and jumped in.

Verberkmoes attempted to start the motor. It stalled and more gas was given. The motor started fast. Langeland told Verberkmoes to shut it off or they would sink. Upon the motor being stopped, the front end of the boat went down and water came in and filled the boat.

Langeland told everyone to remain where they were. Verberkmoes tried, however, to step past Langeland. The weight in the boat was shifted and all three fell into the water. The weight of Langeland’s waders caused him to go under water; however, he cut the wader straps and surfaced. Verberkmoes and decedent were heard some fifteen to twenty feet distant. Verberkmoes and decedent drowned.

Plaintiff claims on appeal that the trial court erred by holding that no legal duty existed between decedent and Langeland as a matter of law. Plaintiff alleged that Langeland, in allowing decedent to use his full-length waders, owed decedent a duty of care and further alleged that it was breached in four ways: he allowed decedent to wear waders that were too large; he failed to warn and instruct her of the proper and safe use of waders; he failed to warn and instruct her of the proper use of a life jacket; and he failed to act when decedent complained that the waders were cumbersome and clumsy.

The test on a motion for summary judgment based on GCR 1963, 117.2(1), now MCR 2.116(C)(8), is whether the claim involved is so clearly unenforceable as a matter of law that no factual development could possibly justify a right to recover. Cramer v Metropolitan Savings Ass'n, 125 Mich App 664; 337 NW2d 264 (1983). All factual allegations of the claim are taken to be true, along with any reasonable inferences or conclusions which may fairly be drawn from the facts alleged. Kinnunen v Bohlinger, 128 Mich App 635; 341 NW2d 167 (1983). A motion brought pursuant to GCR 1963, 117.2(1) tests only the legal sufficiency of the claim, not whether there is any factual support for the claim. Huff v Ford Motor Co, 127 Mich App 287; 338 NW2d 387 (1983).

The elements of plaintiff’s action for negligence are 1) duty, 2) general standard of care, 3) specific standard of care, 4) cause in fact, 5) legal or proximate cause, and 6) damages. Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977). Where there is no legal duty, no actionable negligence exists. Butrick v Snyder, 236 Mich 300, 306; 210 NW 311 (1926).

The question of duty is one of law and solely for the court to decide. Moning v Alfono, supra. "Duty” was defined in Antcliff v State Employees Credit Union, 414 Mich 624, 630-631; 327 NW2d 814 (1982), reh den 417 Mich 1103 (1983), where our Supreme Court quoted the following from Prosser, Torts, § 53, p 324:

A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.

It is axiomatic that, where no duty exists, there can be no actionable negligence. Butrick v Snyder, supra. It is a general rule of common law that a person has no duty to render assistance to another if he is not liable for the initial injury in the absence of a special relationship. 2 Restatement Torts, 2d, §§ 323, 324, pp 135-142.

Further, every person who engages in the performance of an undertaking has an obligation to use due care or to act so as not to unreasonably endanger the person or property of another. Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967).

It is not enough that an individual simply acts. The act must have been one to render service to another. Smith v Allendale Mutual Ins Co, 410 Mich 685; 303 NW2d 702 (1981), reh den 411 Mich 1154 (1981). In the instant case, Langeland simply loaned more appropriate waders to replace the waders which had been purchased and were being worn by decedent. This cannot be considered the rendering of a service or an undertaking which would have been performed for Langeland’s benefit. It was a reasonable act under the situation that existed and did not increase any danger accepted by the decedent. It was a gratuitous act in which defendant did not assume an obligation or render a service. Scott v Detroit (On Rehearing), 113 Mich App 241; 318 NW2d 32 (1981), lv den 422 Mich 892 (1985). No special relationship existed requiring Langeland to be more affirmative in his actions and requiring Langeland to instruct decedent. It was a simple act of allowing another person to utilize a more appropriate piece of water equipment. To impose a duty would fly in the face of all commonly accepted codes of conduct.

Here, we cannot conclude that defendant’s loan of the insulated waders worsened the situation or increased the risk when decedent had already intended to wear her newly purchased hip waders. Defendant did not have a legal duty to plaintiffs decedent as claimed in plaintiffs complaint. We therefore do not need to address the remaining questions raised by plaintiff on appeal.

Affirmed.

R. M. Maher, J., concurred.