Martin v. Fowler , 36 Mich. App. 725 ( 1971 )

36 Mich. App. 725 (1971) 194 N.W.2d 524

MARTIN
v.
FOWLER

Docket Nos. 8334, 8335.

Michigan Court of Appeals.

Decided November 22, 1971.

Bush, Luce, Henderson, Black & Bankson, for plaintiffs.

Nunneley, Nunneley, Hirt & Rinehart, for defendant Shell Oil Company.

McIntosh, Oppliger, Mugan & Huegli, for defendants McManamon and Lazuruk.

Before: QUINN, P.J., and DANHOF and TARGONSKI,^[*] JJ.

DANHOF, J.

The plaintiffs commenced this action seeking to recover for damages allegedly sustained when the automobile in which they were riding collided with an automobile being operated by defendant Fowler. Defendants McManamon and Lazuruk and Shell Oil Company moved for summary judgment under GCR 1963, 117.2(1).^[1] The trial court held that the plaintiffs had failed to state a claim against these defendants upon which relief could be granted and granted the motions. The plaintiffs have appealed. We affirm the summary judgment granted to Shell Oil; however, we reverse the judgment granted to McManamon and Lazuruk.

McManamon and Lazuruk operated a service station in the City of Dearborn, known as Pete and Leo's Shell Service. The station was owned by Shell Oil Company and leased to McManamon and Lazuruk. Defendants Thomas Phillips and Richard W. Phillips owned an automobile which they left at Pete and Leo's Shell Service for repairs. While the automobile was at the service station it was stolen by Fowler who drove it to Sanilac County where the injury occurred.

In their second amended complaint the plaintiffs' sole allegation against Shell Oil is that it is the owner and lessor of the service station. There are no other allegations of acts or failure to act contained in the complaint. While under some circumstances the lessor may be liable for the torts of his lessee, the condition of being a lessor does not in and of itself impose liability. Thus, with regard to Shell Oil Company the plaintiffs have failed to state a claim upon which relief can be granted.

However, the summary judgment granted to McManamon and Lazuruk must be reversed. We hold that the plaintiffs' second amended complaint contains allegations, which if true, state a claim upon which relief could be granted and therefore summary judgment was improper under GCR 1963, 117.2(1).

The plaintiffs based their claim against McManamon and Lazuruk on the following allegations. The car being driven by Fowler at the time of the injury had been stolen from the service station. The car had been parked in a place where Fowler had easy access to it. Fowler had obtained the keys from a keyboard that was hanging inside the station. The keyboard was located in a place where anyone inside the station would have easy access to it. Defendants' suspicion should have been aroused by Fowler's unusual and distinctive appearance. Fowler had been seen loitering around the station on the day of the theft. The defendants' employees had observed Fowler looking at the keyboard and in particular at the keys to the Phillips vehicle.

In Davis v. Thornton (1970), 384 Mich 138, the Supreme Court set forth the test to be used in determining whether summary judgment is proper. At p 142 the Court stated:

"A judgment for the defendant, in an action such as this, can properly be made only upon a determination a) that the defendant did act as a reasonably prudent man would have acted under the same or similar circumstances, or b) that the plaintiff suffered no injury, or c) the defendant's negligence did not cause the plaintiff's injury, or d) that the injury caused plaintiff was too insignificantly connected to or too remotely effected by the defendant's negligence."

In the instant case there are two issues: were the defendants negligent, and if so was their negligence significantly enough connected to the plaintiffs' injuries so that it can be considered a proximate cause of the injuries.

In a motion for summary judgment on the ground of failure to state a claim upon which relief can be granted, all well-pleaded material allegations must be taken as true. Brunn v. Weiss (1971), 32 Mich App 428. Accepting all that the plaintiffs say as true, the doctrine of Davis, supra, compels reversal.

We recognize that factually Davis is somewhat removed from this case. However, we still regard Davis as controlling. The most obvious distinction between Davis and this case is that the keys were not left in the ignition of the car as in Davis, but were placed on a keyboard inside the station. We emphasize that we are not holding that it is negligent to make use of a keyboard in a service station, but the plaintiffs have alleged more than that and we must accept their allegations as true. What we have here is essentially the same situation found in Davis. The plaintiffs have alleged facts which, if taken as true, could lead a reasonable man to conclude that the defendants placed the automobile and the keys in places where they might be stolen and that it was foreseeable that they would be stolen and injury would result. Therefore, the plaintiffs have properly stated a claim on the issue of negligence and summary determination is inappropriate.

The question of causation is also inappropriate for summary determination. Again we find Davis controlling. As we understand Davis it holds that whenever it is doubtful whether or not a cause is too remote to be considered a proximate cause the issue should be left to the fact finder and should not be determined summarily.

Davis also requires that we, and the trial court, consider the totality of the circumstances. Two considerations which are of importance are the amount of time elapsed between the theft and the injury, and what, if any, intervening causes are present. In this case the record does not show how much time elapsed, and it is also silent on the question of intervening causes. Therefore, summary judgment was inappropriate.

Affirmed in part and reversed in part.

All concurred.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] The plaintiffs have appealed only the judgments rendered for Shell Oil and McManamon and Lazuruk. Several other defendants were granted summary judgments from which no appeal has been taken and the cause is still pending with regard to defendant Fowler.