Braun v. York Properties, Inc , 230 Mich. App. 138 ( 1998 )

583 N.W.2d 503 (1998) 230 Mich. App. 138

Kathy BRAUN, Thomas Braun and Nicholas J. Braun, Plaintiffs-Appellees,
v.
YORK PROPERTIES, INC. d/b/a York Management Company, Americana Estates of Casco Partnership d/b/a Americana Estates of Casco Mobile Home Park, Sidney Barbas, Paul Fisher, Bernard Bocknek, David Kahn, Alan Fisher and Nita Tucker, Defendants-Appellants.
Kathy BRAUN, Thomas Braun, Nicholas J. Braun and Bryan P. Braun, Plaintiffs-Appellees,
v.
YORK PROPERTIES, INC. d/b/a York Management Company, Americana Estate of Casco Mobile Home Park, Sidney Barbas, Paul Fisher, Bernard Bocknek, David Kahn, Alan Fisher and Nita Tucker, Defendants-Appellants.

Docket Nos. 184796, 190771, 190956.

Court of Appeals of Michigan.

Submitted December 10, 1997, at Detroit. Decided June 2, 1998, at 9:05 a.m. Released for Publication September 10, 1998.

Bator Roualet & Berlin by Nancy J. Roualet and Daniel A. Gwinn, Birmingham, for Plaintiffs-Appellees.

Thomas D. Rinehart, P.C. by Thomas D. Rinehart, Mt. Clemens, Gross, Nemeth & Silverman, P.L.C., by James G. Gross, Mary T. Nemeth and Steven G. Silverman, of Counsel, Detroit, for Defendants-Appellants.

Before SAWYER, P.J., and WAHLS and REILLY, JJ.

REILLY, Judge.

In these consolidated cases, York Properties, Inc., the owners and manager of the mobile-home park at which the underlying events took place (hereinafter defendants) appeal as of right the judgment for plaintiff Nicholas Braun on his negligence claim and the order denying their motion for mediation sanctions against plaintiffs Kathy, Thomas, and Bryan Braun. We vacate the judgment in Docket No. 184796 because defendants did not owe plaintiff Nicholas Braun a duty of care. In Docket Nos. 190771 and 190956, however, we affirm the denial of mediation sanctions.

Plaintiff Nicholas Braun, a twelve-year-old child, was seriously injured when bitten by his neighbors' dog, a Labrador, while playing inside the neighbors' mobile home. Nicholas, along with his mother, father, and brother, commenced this action against his neighbors and defendants, for injuries arising out of the dog bite. Nicholas settled his claims against his neighbors for $100,000. The trial court granted a directed verdict with respect to the claims of plaintiffs Kathy, Thomas, and Bryan Braun. The jury, however, found for Nicholas with respect to his claim against defendants for negligently failing to enforce rules and regulations regarding dogs in the mobile-home park. The court entered judgment for Nicholas in the amount of $50,000 for past noneconomic damages, $100,000 for future medical expenses, and $123,904.95 for future noneconomic damages. The trial court subsequently denied defendants' motions for judgment notwithstanding the verdict, a new trial, and remittitur. The court also denied defendants' motion for mediation sanctions against Kathy, Thomas, and Bryan Braun.

Docket No. 184796

Defendants first argue that the trial court erred in denying their motion for a directed verdict because plaintiff Nicholas Braun failed to show that they owed him a duty of care. We agree. This Court reviews de novo the trial court's decision on a motion for a directed verdict. Berryman v. K mart Corp., 193 Mich.App. 88, 91, 483 N.W.2d 642 (1992). This Court considers the evidence presented at trial in a light most favorable to the nonmoving party to determine whether the plaintiff established a prima facie case. Id. A directed verdict should be granted only if reasonable jurors could not reach different conclusions. Id.

The question presented is whether under the circumstances of this case a landlord who promulgates rules and regulations regarding tenants' dogs owes a third party a duty to use reasonable care to enforce those rules. Generally, the existence of a duty is a question of law for the court to decide, but where certain factual circumstances give rise to a duty, and there are disputed facts, a jury must determine whether those factual circumstances exist. Howe v. Detroit Free Press, Inc., 219 Mich.App. 150, 156, 555 N.W.2d 738 (1996). "[T]he jury decides the question of duty only in the sense that it determines whether the proofs establish the elements of a relationship which the court has already concluded give rise to a duty as a matter of law." Smith v. Allendale Mut. Ins. Co., 410 Mich. 685, 714-715, 303 N.W.2d 702 (1981). This Court has considered a landlord's duty to protect others from attacks by tenants' animals on two occasions, in Szkodzinski v. Griffin, 171 Mich.App. 711, 431 N.W.2d 51 (1988), and Feister v. Bosack, 198 Mich.App. 19, 497 N.W.2d 522 (1993).

In Szkodzinski, the plaintiff sought to recover from a landlord under a local ordinance, a strict liability theory, and the common law for injuries sustained when a tenant's dog attacked him. The plaintiff's local ordinance claim was rejected because the ordinance did not create a cause of action. The strict liability claim was rejected because the Michigan dog-bite statute, M.C.L. § 287.351; M.S.A. § 12.544, applies only to the dog's owner. The landlord was not an "owner" for purposes of the statute because he neither owned, kept, nor controlled the dog. Szkodzinski, supra at 714, 431 N.W.2d 51. Finally, this Court rejected the plaintiff's common-law claim because no factual question existed whether the landlord knew of the dog's vicious nature. The Court remarked that "the only possible way that [the landlord] could be held liable on a common law theory would be if he knew of the dog's vicious nature." Id. at 714, 431 N.W.2d 51.

In Feister, this Court considered the question whether a landlord could be held liable for injuries inflicted by a tenant's dog off the leased premises. The Court held that a landlord had no duty to protect third parties under those circumstances. The Feister Court declined to construe Szkodzinski as establishing a landlord's duty to protect all potential victims from a dog once the landlord learns of the dog's dangerous proclivities. Feister, supra at 23, 497 N.W.2d 522. The Court noted that where the tenant comes into possession of the dog after the premises have been leased, courts in other jurisdictions have held a landlord liable only when he had knowledge of the dog's vicious propensities and had control of the premises or the capability to remove or confine the animal. The Feister Court further noted that other courts have been reluctant to impose liability for attacks that take place off the premises. After reviewing the decisions of other courts, this Court determined that a landlord's power to evict a tenant does not establish "control" over the dog, even if the landlord could have evicted the tenant before the date of the injury. Id. at 25-26, 497 N.W.2d 522. Accordingly, this Court held that a landlord owes "no duty to protect third parties from attacks by his tenants' dog taking place off the leased premises where the dog was acquired after the premises were leased." Id. at 26, 497 N.W.2d 522.

In this case, plaintiff Nicholas Braun admits that neither he, his parents, nor the dog's owners, much less defendants, knew of the dog's dangerous proclivities. Accordingly, Nicholas rightly concedes that he cannot recover under the common-law theory identified in Szkodzinski, supra at 714, 431 N.W.2d 51. See also McCullough v. Bozarth, 232 Neb. 714, 442 N.W.2d 201 (1989) (cases collected).^[1] Nicholas instead argues that by promulgating rules and regulations governing their tenants' possession of dogs, including breed and size restrictions, defendants voluntarily assumed a duty to use reasonable care to enforce their rules to protect third parties from tenants' dogs that do not satisfy the criteria. We reject Nicholas' argument.

Nicholas relies primarily on the Supreme Court of Alaska's decision in Alaskan Village, Inc. v. Smalley, 720 P.2d 945 (Alaska, 1986), to support his assertion of a duty in this case. In Alaskan Village, the plaintiff, a six-year-old child, was bitten by her neighbor's pit bull while playing on a swingset in the neighbor's yard. The plaintiff and her neighbor both lived in defendant's mobile-home park. The defendant inserted a comprehensive set of rules and regulations in its standard lease agreement, including a prohibition on tenants possessing "vicious dogs." On appeal from the judgment for plaintiff, the Alaska court held that the defendant landlord had a duty to exercise reasonable care to enforce its rules and regulations because it undertook the obligation to control vicious dogs in its trailer park. Alaskan Village, supra at 948.

The Alaska court noted that under § 323 of the Second Restatement of Torts a defendant who undertakes to render services owes a duty of care. The court then reviewed seven analytical factors^[2] to determine whether an actionable duty of care existed under the circumstances presented in Alaskan Village. The court determined that a duty existed, reasoning as follows:

Applying these principles to the instant case, we conclude that Village had a duty to exercise reasonable care to enforce its rules and regulations. (1) There was ample evidence that Village had actual knowledge of prior incidents involving [the neighbor's] dogs, and therefore it was clearly foreseeable that a person such as Smalley might be harmed; (2) Smalley suffered injury; (3) her injuries are closely related to Village's failure to take any action to enforce its rules; (4) Village's blatant disregard of its tenants' safety is morally blameworthy; (5) our policy is to encourage owners to enforce their rules to prevent harm to others lawfully on the premises; (6) the burden on owners of enforcing their own rules is not onerous; and (7) owners may obtain insurance or require tenants who own vicious animals to do so.

Village undertook to control pets on the trailer park premises by the lease provision prohibiting tenants from keeping vicious dogs and requiring [the neighbor] to immediately remove annoying pets. One of the trailer park managers agreed that he had "an obligation to enforce the rules... concerning pets for the safety and well-being of the tenants in that park."... Smalley was entitled to rely on Village to perform its duty. [Alaskan Village, supra at 948.]

This Court has similarly accepted § 324A of the Second Restatements of Torts as correctly stating the law regarding a duty arising out of the rendering of services. Courtright v. Design Irrigation, Inc., 210 Mich.App. 528, 531, 534 N.W.2d 181 (1995). That section provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking. [2 Restatement Torts, 2d, § 324A, p. 142.]

Nicholas correctly notes that defendants' failure to enforce their rules arguably falls within § 324A because their actions could have increased the risk of harm to him. This fact, however, does not answer the duty question. In considering § 324A, our Supreme Court explained the role of the Restatement in the duty analysis:

[W]e note that the application of a common-law rule to a particular set of facts does not turn upon whether those facts can be characterized in the language of the Restatement section corresponding to the common-law rule. Unlike a statute, which expresses a legislative directive for the treatment of future cases, the Restatement seeks primarily to distill the teachings of decided cases and is descriptive. While its drafters may sometimes strive to choose "the better rule" or to predict or shape the development of the law, its influence depends upon its persuasiveness. Even where a particular Restatement section has received specific judicial endorsement, cases where that section is invoked must be decided by reference to the policies and precedents underlying the rule restated. Textual analysis of the Restatement is useful only to the extent that it illuminates these fundamental considerations. [Smith, supra at 712-713, 303 N.W.2d 702.]

Duty is a question "whether the defendant is under any obligation for the benefit of the particular plaintiff and concerns the problem of the relationship between individuals that imposes upon one a legal obligation for the benefit of the other." Premo v. General Motors Corp., 210 Mich.App. 121, 124, 533 N.W.2d 332 (1995). This Court's decision to impose a duty involves a determination of public policy. Smith, supra at 716, n. 24, 303 N.W.2d 702. In making this determination, this Court considers many variables. Buczkowski v. McKay, 441 Mich. 96, 101, 490 N.W.2d 330 (1992). In Buczkowski, supra at 101, n. 4, 490 N.W.2d 330, our Supreme Court cited Dean Prosser's description of these variables in Prosser & Keeton, Torts (5th ed.), § 53, p. 359, n. 24:

Dean Prosser described the several variables that consistently go to the heart of a court's determination of duty as including: foreseeability of harm, degree of certainty of injury, closeness of connection between the conduct and injury, moral blame attached to the conduct, policy of preventing future harm, and, finally, the burdens and consequences of imposing a duty and the resulting liability for breach.

Applying these principles, we conclude that defendants did not have a duty to exercise reasonable care to enforce its rules and regulations under the circumstances of this case. (1) Unlike in Alaskan Village, defendants did not know of the dog's dangerous proclivities, and therefore, it was no more foreseeable that plaintiff would be harmed by his neighbor's dog than any other dog; (2) Nicholas suffered injury; (3) Nicholas' injuries were related to defendants' failure to enforce their rules and regulations only in the sense that if defendants had enforced them, the dog would not have been in the mobile-home park, because the dog violated defendants' size restrictions, not their prohibition of "dangerous breeds"; (4) defendants' failure to enforce the size restrictions does not demonstrate the blatant disregard of its tenants' safety exhibited in Alaskan Village because defendants did not know of the dog's dangerous nature and the size of a dog is not necessarily related to its propensity to bite; (5) our policy is to encourage owners to enforce their rules to prevent harm to others lawfully on the premises; and (6) the burden on the owners to enforce their regulations is not particularly onerous and they could insure against the risk of liability.

Upon consideration of these factors, we conclude that defendants did not owe Nicholas a duty of care in this case because they did not undertake to render services to another within the meaning of § 324A. Although the size restrictions may in some way protect others from harm, their purpose is primarily to protect against harm to the premises. The Maryland Court of Special Appeals' discussion of a "no pets" lease provision in this context is instructive in this regard:

The landlords were not in breach of the "no pets" provision; the tenant was in breach. Clauses in lease contracts creating a duty on the part of tenant to the landlord, unless specifically designed to do so, do not create obligations on the part of landlords to third parties. Contract law provides that the beneficiary of a clause has no obligation to enforce the contract provision, but could waive the provision by his conduct.... In this case, the landlords, who were the beneficiaries of the "no pets" clause, had no duty to third parties to enforce the rule. [Amberwood Associates Ltd. Partnership, Inc. v. Matthews, 115 Md.App. 510, 521, 694 A.2d 131 (1997), cert. gtd. 347 Md. 155, 699 A.2d 1169 (1997).]

Under the circumstances of this case, we conclude that defendants did not owe Nicholas a duty of care. Accordingly, the trial court erred in denying defendants' motion for a directed verdict. We therefore vacate the judgment in Docket No. 184796.^[3]

Docket Nos. 190771 & 190956

Defendants argue that the trial court erred in denying their motion for mediation sanctions against plaintiffs Kathy, Thomas, and Bryan Braun. We disagree. This Court reviews de novo a trial court's decision whether to grant mediation sanctions. Great Lakes Gas Transmission Ltd. Partnership v. Markel, 226 Mich.App. 127, 129-131, 573 N.W.2d 61 (1997). Here, the trial court denied defendants' motion because they filed it more than twenty-eight days after the court entered judgment on Kathy, Thomas, and Bryan Braun's claims.

Defendants argue that the trial court erred in denying their motion because they timely filed it within twenty-eight days of the order denying their motion for judgment notwithstanding the verdict, a new trial, or remittitur. MCR 2.403(O)(8) establishes the period for filing a motion for mediation sanctions, stating as follows:

A request for costs under this subrule must be filed and served within 28 days after the entry of judgment or entry of an order denying a timely motion for a new trial or to set aside the judgment.

This Court must apply the clear language of the court rule as written. Great Lakes, supra at 130, 573 N.W.2d 61. In unambiguous terms, MCR 2.403(O)(8) provides that the period for requesting costs begins on the date the court enters judgment or the date the court enters an order denying a timely motion for a new trial or to set aside the judgment. For purposes of the court rule, the judgment is the judgment adjudicating the rights and liabilities of particular parties, regardless of whether that judgment is the final judgment from which the parties may appeal. See MCR 2.604(A). The court rule includes a provision allowing twenty-eight days after the order disposing of a motion for a new trial or to set aside the judgment in which to request sanctions because these motions may affect whether a party is entitled to the sanctions. When these motions do not pertain to the parties involved in the request for sanctions, extending the period for filing a motion for sanctions would serve no purpose.

In this case, the trial court entered judgment for defendants on plaintiffs Kathy, Thomas, and Bryan Braun's claims on February 1, 1995, and judgment for plaintiff Nicholas Braun on February 6, 1995. Defendants' motions for a new trial, judgment notwithstanding the verdict, and remittitur were denied in an order entered March 16, 1995. However, those motions concerned only Nicholas' claims. Therefore, under MCR 2.403(O)(8), the twenty-eight day period for defendants to request mediation sanctions against Kathy, Thomas, and Bryan Braun commenced on February 1, 1995. Defendants filed their motion for mediation sanctions on April 6, 1995. Accordingly, the trial court properly denied defendants' motion as untimely. We therefore affirm in Docket Nos. 190771 and 190956.

Affirmed in part and vacated in part.

NOTES

[1] In McCullough, supra at 724-725, 442 N.W.2d 201, the Supreme Court of Nebraska succinctly summarized a landlord's common-law liability:

We hold that as a general rule, a landlord is liable for injuries caused by the attack of a tenant's dog only where the landlord had actual knowledge of the dangerous propensities of the dog and where the landlord, having that knowledge, nevertheless leased the premises to the dog's owner or, by the terms of the lease, had the power to control the harboring of a dog by the tenant and neglected to exercise that power.

Thus, under the common-law theory, defendants' rules and regulations would support a finding that they had the power to control their tenants' harboring of dogs.

[2] The seven factors that the Alaska court considered were: "(1) the foreseeability of harm to plaintiff, (2) the degree of certainty that plaintiff suffered injury, (3) the connection between defendant's conduct and plaintiff's injury, (4) the moral blame attached to defendant's conduct, (5) the policy of preventing future harm, (6) the burden on the defendant and consequences to the community of imposing the duty, and (7) the availability, cost and prevalence of insurance for the risk." Alaskan Village, supra at 947-948.

[3] In light of our determination that defendants did not owe Nicholas a duty of care, we need not address defendants' other assertions of error.