Peka v. Boose

172 Mich. App. 139 (1988) 431 N.W.2d 399

PEKA
v.
BOOSE

Docket No. 95735.

Michigan Court of Appeals.

Decided May 25, 1988.

Robert F. White, for plaintiff.

Gromek, Bendure & Thomas (by John A. Lydick), for Vivian Bottger.

Before: CYNAR, P.J., and SAWYER and J.A. GILLIS,^[*] JJ.

PER CURIAM.

Plaintiff appeals as of right from the trial court's grant of summary disposition in favor of defendant Vivian Bottger. The trial court held that plaintiff's complaint in negligence failed to state a claim upon which relief could be granted. MCR 2.116(C)(8). We affirm.

The facts are not in dispute. On May 14, 1985, at approximately 2:53 P.M., defendant Bottger was stopped in a vehicle in the inside northbound lane of Main Street at the intersection of Main Street and Turrill Avenue in Lapeer. Defendant Kellie Sue Boose was stopped in a vehicle in the left turn lane of southbound Main Street at the Turrill intersection. Plaintiff was driving a vehicle in the outside northbound lane of Main Street. Defendant Bottger motioned for defendant Boose to turn left onto Turrill. As defendant Boose's car was turning across the northbound lanes of Main Street on to Turrill, it was struck by plaintiff's vehicle. Plaintiff was injured and sued defendants for negligence.

The trial court granted defendant Bottger's motion for summary disposition after finding that defendant owed no legal duty to plaintiff and her actions were not the proximate cause of plaintiff's injuries.

In a negligence action, the court assesses competing policy considerations and determines as a matter of law whether the defendant owes an actionable legal duty to the plaintiff. Friedman v Dozorc, 412 Mich. 1, 22; 312 NW2d 585 (1981).

In Rodriquez v Detroit Sportmen's Congress, 159 Mich. App. 265, 270-271; 406 NW2d 207 (1987), lv den 428 Mich. 905 (1987), we discussed the element of duty:

The determination of whether a legal duty exists is a question of whether the relationship between the actor and the plaintiff gives rise to any legal obligation on the actor's part to act for the benefit of the subsequently injured person. Further, a legal duty is essentially an obligation recognized by law which requires an actor to conform to a certain standard of conduct for the protection of others against unreasonable risk. Thus, the determination of whether a duty should be recognized in any individual case is based on a balancing of the societal interest involved, the severity of the risk, the burden upon the defendant, the likelihood of occurrence and the relationship between the parties. The element of duty in a negligence action is a question of law for the court to decide.

Plaintiff relies heavily on Sweet v Ringwelski, 362 Mich. 138; 106 NW2d 742; 90 ALR2d 1434 (1961), in support of his position. There, our Supreme Court held that the trial court should not have granted a directed verdict in favor of defendant truck driver on the ground of no showing of negligence. Defendant truck driver had stopped his truck and waved for the ten-year-old plaintiff pedestrian to cross the street on the crosswalk in front of him. Plaintiff continued crossing the street into the lane next to the truck and was struck by a car driven by defendant motorist. The Court's decision was based on the facts that plaintiff was a ten-year-old girl, that her vision of defendant motorist's car may have been obscured by defendant truck driver's truck, and that plaintiff testified that she proceeded to the point of impact because she relied on what she considered to be directions from an adult. Sweet, supra, p 144. The Court held that there were questions of fact for the jury with respect to the intended meaning of defendant truck driver's hand signal, the meaning that the signal might reasonably have been anticipated to convey to the ten-year-old plaintiff, and whether the signal was a proximate cause of the injuries. Sweet, supra, pp 144-145.

Defendant Bottger admits that Sweet is the Michigan case that comes closest to being on point. However, Bottger points out that other states' courts that have considered the similar issue of a signaling driver's liability to another driver approaching an intersection from the opposite direction have decided in favor of her position. See Anno., Duty and liability as to signaling driver approaching from opposite direction or on intersecting highway to pass or proceed, 90 ALR2d 1431.

The trial court quoted Sweet at length in its opinion and distinguished it by saying that defendant Boose was an adult motorist, not a ten-year-old pedestrian who arguably would rely on an adult's directions.

We agree that Sweet is easily distinguishable and should be limited to the facts of that case. Since all participants herein were motorists driving in ordinary circumstances (i.e., no unusual obstacles or obstructions), defendant Bottger assumed no duty to plaintiff to warn defendant Boose of plaintiff's approaching vehicle. We find as a matter of law that defendant Bottger's hand motion signified nothing more than permission to cross in front of her car and could not be relied upon as assurance that all was clear ahead.

Plaintiff also argues that the trial court committed error requiring reversal by denying plaintiff's motion to amend his complaint except to correct certain clerical errors. This issue is without merit.

The facts in this case are fairly clear and undisputed. The court determined that defendant Bottger's actions would not support liability as a matter of law when it granted her motion for summary disposition pursuant to MCR 2.116(C)(8). Plaintiff did not propose any new factual scenario or theory of liability at the hearing on this motion in the lower court, nor has he done so on appeal. Allowing plaintiff to amend his complaint with regard to the cause of action against defendant Bottger would have been futile. The court properly exercised its discretion by limiting plaintiff's amendment of his complaint to the correction of typographical errors.

Affirmed.

J.A. GILLIS, J., did not participate.

NOTES

[*] Recorder's Court judge, sitting on the Court of Appeals by assignment.