396 Mich. 281; 240 N.W.2d 217;
Supreme Court of Michigan
April 1, 1976, Decided
FARWELL v
KEATON
May 6, 1975, Argued
April 1, 1976, Decided
SUBSEQUENT HISTORY:
[***1]
Rehearing denied
397 Mich 958.
DISPOSITION: Reversed.
HEADNOTES: Opinion of the Court
1. Negligence --
Duty of Care --
Question of Law -- Question of Fact.
The existence of a
duty of one person to another is ordinarily a
question of law in a negligence case; however, where there are factual circumstances which
would give rise to a
duty, the existence of those facts must be determined by a jury.
2. Negligence -- Injured Persons -- Assistance --
Duty of Care.
Every person has a
duty to avoid any affirmative acts which may make a situation worse for another in
distress; if a defendant attempts to aid an injured person a
duty arises which requires the defendant to act as a reasonable person and he is
liable for a failure to use
reasonable care for the protection of the injured person's interests.
3. Negligence -- Injured Persons -- Assistance --
Duty of Care.
Sufficient evidence was produced for a jury to
find that a defendant breached a
legal duty
owed to a
decedent where the defendant knew the
decedent had been in a fight, the defendant attempted to relieve the
decedent's pain by applying an ice pack to his head, the
decedent crawled in the back
seat of the car defendant was driving and laid
[***2] down, defendant later attempted to rouse the
decedent was unable to do so and defendant failed to tell anyone that the injured
decedent was asleep in the car although he later admitted knowing the
decedent was severely injured.
4. Negligence -- Injured Persons --
Duty of Care -- Common Undertaking -- Social
Companions.
Social
companions engaged in a common undertaking assume a
special relationship which creates an
affirmative duty of one to
render assistance to another in
peril if he can do so without endangering himself.
Dissenting Opinion
Coleman and Fitzgerald, JJ.
5. Negligence -- Injured
Persons -- Assistance --
Duty of Care.
Defendant, a
companion of a
decedent, had no obligation to assume, nor did he assume, a
duty of rendering medical or other assistance to the
decedent where defendant and
decedent were chased by a group of men, defendant escaped but the
decedent was caught and
beaten, the
decedent never complained of pain and expressed a desire to retaliate against his
attackers, defendant left
decedent, asleep, in the
decedent's automobile parked in the
driveway of the
decedent's
grandparents' house, the
decedent died of an epidural hematoma a few days later, and
[***3]
only a qualified physician would have reason to suspect that
decedent had suffered an injury which required immediate
medical attention.
6. Negligence --
Duty of Care --
Medical Assistance.
The posture of a wrongful death case in which a
decedent's
companion failed to obtain
medical assistance after the
decedent was
beaten by
a group of men, where the facts within the
companion's knowledge in no way indicated that immediate
medical attention was necessary, does not permit the Supreme Court to create a
legal duty upon one to
render assistance to another injured or imperiled party where the initial injury was not caused
by the person upon whom the
duty is sought to be imposed.
7. Negligence --
Legal Duty --
Question of Law.
The principle that the question of negligence is one of law for the court only
when the facts are such that all reasonable men must draw the same conclusion
becomes operative only after the court establishes that a
legal duty is
owed by one party to another.
SYLLABUS: Richard Murray Farwell and David Siegrist, companions for an evening of
recreation, were chased by Terry Ingland, Robert Brock, Jr., Donald Keaton,
Daniel Keaton, and at least two others. Siegrist
[***4] escaped but Farwell was caught and beaten by the pursuers. Ice was applied to
Farwell's head, and Siegrist and Farwell then visited several drive-in
restaurants. Farwell later went to sleep in the back seat of his car, and
Siegrist drove it to the house of Farwell's grandparents and left it in the
driveway, after unsuccessfully attempting to rouse Farwell. Farwell was found
by his grandparents in the morning and taken to a hospital, where he died of an
epidural hematoma. Richard M. Farwell, Jr., administrator of the estate of
Richard Murray Farwell, deceased, brought an action for wrongful death against
David Siegrist, Donald Keaton, Daniel Keaton, Terry Ingland, and Robert
Brock, Jr., in the Wayne Circuit Court, Robert E. Cunningham, J. The jury
returned a verdict of no cause of action for defendants Brock and Daniel Keaton
and a verdict against defendant Siegrist. A default judgment was entered
against defendants Ingland and Donald Keaton. Defendant Siegrist appealed to
the Court of Appeals, McGregor, P. J., and J. H. Gillis and O'Hara, JJ., which
reversed (Docket No. 14735). Plaintiff appeals.
Held:
1. The existence of a duty of one person to assist another is ordinarily
[***5] a question of law, but there are factual circumstances which give rise to a
duty and the existence of those facts must be determined by a jury.
2. There is a legal duty of every person to avoid any affirmative acts which
may make a situation worse for another who is in distress. If
defendant Siegrist attempted to aid the decedent, a duty arose which required
Siegrist to act as a reasonable person in protecting the decedent's interests,
and it was for the jury to determine whether the defendant did attempt aid.
3. Farwell and Siegrist were companions engaged in a common undertaking; there
was a special relationship between the parties. Because Siegrist knew or
should have known of the peril Farwell was in and could render assistance
without endangering himself he had an affirmative duty to come to Farwell's aid.
4. The jury found that defendant Siegrist did not act reasonably in attempting
to aid the decedent and that Siegrist's negligence was the proximate cause of
the decedent's death.
The verdict is reinstated.
Justice Fitzgerald, Justice Coleman concurring, would affirm the judgment of
the Court of Appeals for the following reasons:
1. This is not the appropriate case to
[***6] establish a standard of conduct requiring one to assume legally the duty of
insuring the
safety of another. The facts within defendant's knowledge in no way indicated
that immediate medical attention was necessary, the relationship between the
parties imposed no affirmative duty to render assistance, and the injury was
not caused by defendant.
2. Defendant Siegrist had no obligation to assume, nor did he assume, a duty of
rendering medical or other assistance to the decedent. His actions did not
indicate that he
"volunteered" to aid Farwell, and consequently there could be no discontinuance of aid which
left Farwell in a worse position than when the volunteering allegedly occurred.
3. Defendant Siegrist did not act unreasonably in the circumstances in
permitting Farwell to spend the night asleep in the back seat of his car, where
there was nothing to indicate to a layman that Farwell had suffered an injury
which required immediate medical attention.
4. The question whether a legal duty is owed by one party to another is
one for the court, not the jury. The Court of Appeals properly decided as a
matter of law that defendant owed no duty to the deceased.
51 Mich App 585;
215 NW2d
[***7] 753 (1974) reversed.
COUNSEL:
Young, O'Rourke, Bruno
& Bunn (by
James C. Bruno), for plaintiff.
Martin, Bohall, Joselyn, Halsey, Rowe
& Jamieson, P. C. (by
William G. Jamieson), for defendant Siegrist.
JUDGES: Levin, J. Kavanagh, C. J., and Williams, J., concurred with Levin, J.
Lindemer and Ryan, JJ., took no part in the decision of this case. Fitzgerald,
J., dissenting. Coleman, J., concurred with Fitzgerald, J.
OPINIONBY: LEVIN
OPINION:
[*284]
[**219] There is ample evidence to support the jury determination that David Siegrist
failed to exercise
reasonable care after voluntarily coming to the aid of Richard Farwell and that his negligence
was the proximate cause of Farwell's death. We are also of the opinion that
Siegrist, who was with Farwell the
evening he was fatally injured and, as the jury found, knew or should have known of
his
peril, had an
affirmative duty to come to Farwell's aid. n1
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 The trial judge instructed the jury to determine whether Siegrist had
voluntarily undertaken to render aid and, if he had, whether he acted
reasonably in discharging that
duty. Whether Siegrist be charged with the
duty of a voluntary rescuer or the
duty of a
companion, the standard of care -- whether he acted reasonably under all the
circumstances -- is the same and the instruction given was adequate.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***8]
[*285] I
On the
evening of August 26, 1966, Siegrist and Farwell
drove to a
trailer
rental lot to return an automobile which Siegrist had borrowed from a friend who
worked there. While waiting for the friend to
finish work, Siegrist and Farwell consumed some beer.
Two
girls walked by the entrance to the lot. Siegrist and Farwell attempted to engage
them in
conversation; they left Farwell's car and followed the
girls to a
drive-in
restaurant down the street.
The
girls complained to their friends in the
restaurant that they were being followed. Six boys chased Siegrist and Farwell back to
the lot. Siegrist escaped unharmed, but Farwell was severely
beaten. Siegrist found Farwell underneath his automobile in the lot. Ice was applied
to Farwell's head. Siegrist then
drove Farwell around for approximately two hours, stopping at a number of
drive-in
restaurants. Farwell went to sleep in the back
seat of his car. Around midnight Siegrist
drove the car to the home of Farwell's
grandparents, parked it in the
driveway, unsuccessfully attempted to rouse Farwell, and left. Farwell's
grandparents
discovered him in the car the next morning and took him to the hospital. He
died
[***9] three days later of an epidural hematoma.
At trial, plaintiff contended that had Siegrist taken Farwell to the hospital,
or had he notified someone of Farwell's condition and whereabouts, Farwell
would not have died. A neurosurgeon testified that if a person in Farwell's
condition is taken to a doctor before, or within half an hour after,
consciousness is lost, there is an 85 to 88 per cent chance of survival.
Plaintiff testified that Siegrist told him that he knew Farwell was badly
injured and that he should have done something.
[*286] The jury returned a verdict for plaintiff and awarded $ 15,000 in damages.
The Court of Appeals reversed, finding that Siegrist had not assumed the
duty of obtaining aid for Farwell and that he neither knew nor should have known of
the need for medical treatment.
II
Two separate, but interrelated questions are presented:
A. Whether the existence of
a
duty in a particular case is always a
matter of law to be determined solely by the Court?
B. Whether, on the facts of this case, the trial judge should have ruled, as a
matter of law, that Siegrist
owed no
duty to Farwell?
A.
"A
duty, in negligence cases, may be defined as an obligation,
[***10] to which the law will give recognition and effect, to conform to a particular
standard of conduct toward another." Prosser, Torts (4th ed),
§ 53, p 324.
The existence of a
duty is ordinarily a
question of law. However, there are factual circumstances which give rise to a
duty. The existence of those facts must be determined by a jury. n2 In
Bonin v Gralewicz, 378 Mich 521, 526-527;
146 NW2d 647
[**220] (1966), this Court reversed a directed verdict of no cause of action where the trial
court had determined
[*287] as a
matter of law that the proofs were insufficient to establish a
duty of care:
"Usually, in negligence cases, whether a
duty is
owed by the defendant to the plaintiff does not require resolution of fact issues.
However, in some cases, as in this one, fact issues arise. When they do, they
must be submitted to the jury, our traditional finders of fact, for ultimate
resolution, and they must be accompanied by an appropriate conditional
instruction regarding defendant's
duty, conditioned upon the jury's resolution of the fact dispute."
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n2 Of course, merely labeling a question as one of
"law" or
"fact" does not solve the dilemma.
"No two terms of legal science have rendered better service than 'law' and
'fact'. * * * They readily accommodate themselves to any meaning we desire to
give them. * * * What judge has not found refuge in them? The man who could
succeed in defining them would be a public enemy." Green, Judge and
Jury, p 270.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***11]
This same rule was stated more recently in
Davis v Thornton, 384 Mich 138, 142;
180 NW2d 11 (1970).
"The trial judge in this case determined the defendant
owed the plaintiff no
duty. We believe this conclusion could properly be made only by a jury."
B.
Without regard to whether there is a general
duty to aid a person in distress, there is a clearly recognized
legal duty of every person to avoid any affirmative acts which may make a situation
worse.
"[I]f the defendant does attempt to aid him, and takes charge and control of the
situation, he is regarded as entering voluntarily into a relation which is
attended with responsibility. * * * Such a defendant will then be liable for a
failure to use
reasonable care for the protection of the plaintiff's interests." Prosser,
supra,
§ 56,
pp 343-344.
"Where performance clearly has been begun, there is no doubt that there is a
duty of care."
Id 346.
In a case such as the one at bar, the jury must determine, after considering
all the evidence, whether the defendant attempted to aid the victim.
[*288] If he did, a
duty arose which required defendant to act as a reasonable person.
"Before any
duty, or any standard
[***12] of conduct may be set, there must first be proof of facts which give rise to it", Prosser,
supra,
§ 37, p 205. Whether those facts have been proved is a question for the jury.
"Professor Green argues that it is impossible in the nature of things for the
duty problem to be decided by the jury, for if the court sends the issue to the
jury this 'necessarily operates as a ruling that there is a
duty or else he would never have submitted the case to the jury at all.' But that
is not so. As in the case of any other issue, the judge will leave the
question to the
jury if it is a debatable one, but the jury may decide that (for example)
plaintiff was beyond the apparent scope of danger from defendant's conduct, and
so beyond the scope of the
duty to perform it carefully, even where they are quite ready to find defendant's
conduct clearly below the standard of
reasonable care." 2 Harper
& James, The Law of Torts, p 1060.
There was ample evidence to show that Siegrist breached a
legal duty
owed Farwell. Siegrist knew that Farwell had been in a fight, and he attempted to
relieve Farwell's pain by applying an ice pack to his head. While Farwell and
Siegrist were riding around,
[***13] Farwell crawled into the back
seat and laid down. The testimony showed that Siegrist attempted to rouse Farwell
after driving him home but was unable to do so.
In addition, Farwell's father testified to admissions made to him by Siegrist:
"Q: Witness, just before the
jury was excused, I asked whether you had any
conversation with Mr. Siegrist after this event occurred. You answered, 'Yes, the day
[*289] after in the living room of Mrs. Grenier's [the
deceased's mother] home.' Then, the jury was excused, and we made
[**221] a special record, and now I would like to ask you some questions that I asked
and that you answered out of the presence of the jury.
The question at trial came down to whether Siegrist acted reasonably under all
the circumstances.
"The
law of
[***14] negligence is that an actor is held to the standard of a reasonable man. The
determination of the facts upon which the
judgment of reasonableness is based is admittedly for the jury."
Davis v Thornton, 384 Mich 138, 142-143;
180 NW2d 11 (1970).
"A: Yes.
"Q: What did Mr. Siegrist say, how did the
conversation go?
"A: I asked him why he left Ricky [the
deceased] in the
driveway of his grandfather's home.
"Q: What did he say?
"A: He said,
'Ricky was hurt bad, I was scared.' I said,
'Why didn't you tell somebody, tell his
grandparents?' He said,
'I know I should have, I don't know.'" (Emphasis added.)
The jury in this case found that Siegrist did not act reasonably, and that his
negligence was the proximate cause of Farwell's death.
"'"In considering the question whether defendant was entitled to a directed
verdict, the testimony must be construed as strongly as possible in favor of
the plaintiff. * * * The specific inquiry is whether this Court can say, as a
matter of law, giving to plaintiff's proofs the strongest probative force to which they are
entitled, that the evidence was not sufficient to justify submitting to the
jury the questions of defendant's negligence and its knowledge or notice of the
situation."'"
Clark v Dalman, 379 Mich 251, 263;
150 NW2d 755 (1967).
[*290]
III
Siegrist contends that he is not liable for failure to obtain
medical assistance for Farwell because he had no
duty to do so.
Courts have been
slow to recognize a
duty to render aid to a person in
peril. n3 Where such a
duty has been found,
[***15] it has been predicated upon the existence of a
special relationship between the parties; n4 in such a case, if defendant knew or should have known
of the other person's
peril, n5 he
[*291]
[**222] is required to render
reasonable care under all the circumstances. n6
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3
"* * * [T]he law has persistently refused to recognize the moral obligation of
common decency and common humanity, to come to the aid of another human being
who is in danger * * *. The remedy in such cases is left to the 'higher law'
and the 'voice of conscience,' which, in a wicked world, would seem to be
singularly ineffective either to prevent the harm or to compensate the victim." Prosser, Torts (4th ed),
§ 56, pp 340-341.
"At the other end of the spectrum are cases where the
peril to the plaintiff has come from a source in no
way connected with defendant's conduct or enterprises or undertakings, past or
present, but where the defendant has it in his power by taking some reasonable
precaution to remove the
peril. Here the law has traditionally found no
duty, however reprehensible and unreasonable the defendant's failure to take the
precaution may be. * * * There is no legal obligation to be a Good Samaritan." 2 Harper
& James, The Law of Torts,
§ 18.6, p 1046.
[***16]
n4 Carriers have a
duty to aid passengers who are known to be in
peril
[
Yu v New York, N H & H R Co, 145 Conn 451;
144 A2d 56 (1958)]; employers similarly are required to render aid to employees
[
Anderson v Atchison, T & S F R Co, 333 U.S. 821;
68 S Ct 854;
92 L Ed 1108 (1948);
Bessemer Land & Improvement Co v Campbell, 121 Ala 50;
25 So 793 (1898);
Carey v Davis, 190 Iowa 720;
180 NW 889 (1921)]; innkeepers to their
guests
[
West v Spratling, 204 Ala 478;
86 So 32 (1920)]; a jailer to his prisoner
[
Farmer v State, 224 Miss 96;
79 So 2d 528 (1955)].
Maritime law has imposed a
duty upon masters to
rescue crewmen who fall overboard.
Harris v Pennsylvania R Co, 50 F2d 866 (CA 4, 1931).
See Prosser, Torts,
supra; 2 Harper
& James,
supra, pp 1048-1049.
n5 In the following cases the court specifically mentions not only the
defendant's knowledge of but also his apparent indifference toward the other
person's
peril:
Southern R Co v Sewell, 18 Ga App 544;
90 SE 94 (1916);
Adams v Chicago G W R Co, 156 Iowa 31;
135 NW 21 (1912);
Cincinnati, N O & T P R Co v Marrs' Administratrix, 119 Ky 954;
85 SW 188 (1905);
Fagg's Administrator v Louisville & N R Co, 111 Ky 30;
63 SW 580 (1901);
Depue v Flatau, 100 Minn 299;
111 NW 1 (1907);
Whitesides v Southern R Co, 128 NC 229;
38 SE 878 (1901).
[***17]
n6 Prosser,
supra, p 343.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
In
Depue v Flatau, 100 Minn 299;
111 NW 1 (1907), the Supreme Court of Minnesota reversed an order of the trial court dismissing
the cause of
action and said that if the defendants knew their dinner
guest was ill, it was for the jury to decide whether they were negligent in refusing
his request to spend the night and, propping him on his wagon with the reins
thrown over his shoulder, sending him toward home.
The Sixth Circuit Court of Appeals, in
Hutchinson v Dickie, 162 F2d 103, 106 (CA 6, 1947), said that a host had an
affirmative duty to attempt to
rescue a
guest who had fallen off his yacht. The host controlled the only instrumentality of
rescue. The Court declared that to ask of the host anything less than that he attempt
to
rescue his
guest would be
"so shocking to humanitarian considerations and the commonly accepted code of
social conduct that the courts in similar situations have had no difficulty in
pronouncing it to be a legal obligation".
Farwell and Siegrist were
companions on a social venture. Implicit in such a common undertaking is the
[***18] understanding that one will
render assistance to the other when he is
in
peril if he can do so without endangering himself. Siegrist knew or should have
known when he left Farwell, who was badly
beaten and unconscious, in the back
seat of his car that no one would find him before morning. Under these
circumstances, to say that Siegrist had no
duty to obtain
medical assistance or at least to notify someone of Farwell's condition and whereabouts would be
"shocking to humanitarian considerations" and fly in the face
[*292] of
"the commonly accepted code of social conduct". n7
"[C]ourts will find a
duty where, in general, reasonable men would recognize it and agree that it exists." n8
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n7
Hutchinson v Dickie, 162 F2d 103, 106 (CA 6, 1947).
n8 Prosser,
supra,
§ 53, p 327.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Farwell and Siegrist were
companions engaged in a common undertaking; there was a
special relationship between the parties. Because Siegrist knew or should have
known of the
peril Farwell was in and could
render assistance
[***19] without endangering himself he had an
affirmative duty to come to Farwell's aid.
The Court of Appeals is reversed and the verdict of the jury reinstated.
DISSENTBY: FITZGERALD
DISSENT: Fitzgerald, J.
The unfortunate death of Richard Farwell prompted this wrongful death action
brought by his father against defendant, David Siegrist, a friend who had
accompanied Farwell during the
evening in which the
decedent received injuries which ultimately caused his death three days later. The
question before us is whether the defendant, considering his relationship with
the
decedent and the activity they jointly experienced on the
evening of August 26-27, 1966, by his conduct voluntarily or otherwise assumed, or
should have assumed, the
duty of rendering medical or other assistance to the
deceased. We find that defendant had no obligation to assume, nor did he assume, such a
duty.
[*293] The facts of the case are accurately set forth in the Court of Appeals opinion.
"Factually, it appears that, on August 26, 1966, Richard Murray Farwell,
deceased 18-year-old son of the plaintiff, visited the home of his friend, David
Siegrist, a 16-year-old; that
evening they
drove to a
trailer
rental lot,
[***20] where Siegrist was returning an automobile he had borrowed from a friend who
was employed by the
rental agency.
Following the jury verdict of $ 15,000 in favor of the plaintiff, defendant,
arguing that the verdict was inconsistent with the weight of the evidence,
moved for and was denied a judgment notwithstanding the verdict. The decision
of the trial court was reversed by the Court of Appeals which found that the
defendant never assumed, voluntarily or otherwise, the
duty of obtaining
medical assistance for the
deceased. The Court stated that the facts in no way indicated that defendant knew, or
should have known, that immediate
medical attention was required. Consequently, as a
matter of law the Court determined that defendant was under no
duty to obtain medical treatment for the
decedent.
"Siegrist and Farwell planned to wait in the car until the friend had finished
work and then 'drive around,' stopping at various
restaurants and
drive-ins. While
[**223] they were waiting, Siegrist estimated that they consumed 'four or five' beers
each.
"Shortly before nine o'clock p.m., two teenage
girls walked past the car. After an unsuccessful attempt to engage them in
conversation, Farwell left the car and followed the
girls; Siegrist got out of the car and followed Farwell.
"When the
girls reached a
restaurant a short distance down the street, they apparently complained to those present
that they were being followed. Defendants Ingland, Brock, Donald Keaton,
Daniel Keaton, and at least two others in the
restaurant began to chase Farwell and Siegrist, both of whom
ran back to the
trailer lot.
"Siegrist escaped by ducking into the
trailer
rental office, where he requested those inside to assist Farwell. They stepped out
of the office and were confronted by the group which had been chasing Siegrist
and Farwell. The two groups faced each other, but no violence
[***21] ensued, and the two groups scattered.
"It was then discovered for the first time that Farwell had been caught and
beaten by those who had been pursuing him and Siegrist; Farwell was found underneath
his automobile in the lot.
"Farwell was taken to the
trailer
rental office, where Siegrist gave him a plastic bag full of ice for his injuries.
Shortly thereafter, Farwell and Siegrist left the
rental office and, between ten o'clock p.m. and midnight, they visited four different
drive-in
restaurants.
[*294] While enroute from the third to the fourth
restaurant, Farwell stated that he wanted to lie down, climbed into the back
seat, and went to sleep. Around
midnight, Siegrist
drove the car to the home of Farwell's
grandparents, parked it in the
driveway, and attempted to rouse Farwell. When the latter merely made a sound as if 'in
a deep sleep', Siegrist left with a friend who had followed him to the
grandparents' house. The next morning, Farwell was found by his
grandparents, apparently taken to a hospital, and died of an epidural hematoma.
"At the close of plaintiff's proofs, defendant Siegrist moved for a directed
verdict on the grounds that he had no
duty to obtain
medical
[***22] assistance for Farwell as a
matter of law. In the alternative, the motion was based upon the proposition that plaintiff
failed to establish that any conduct on the part of Siegrist proximately caused
Farwell's death. The motion was denied."
51 Mich App 585, 587-588.
Plaintiff argues that once having voluntarily undertaken the
duty of caring for
decedent, defendant could not discontinue such assistance if, in so doing, he left the
decedent in a worse position than when such
duty was assumed. Defendant's
[***23]
[*295] knowledge of the seriousness of
decedent's injury and the failure to advise
decedent's
grandparents, the close personal relationship that existed between defendant and the
decedent, and the supposition that the
decedent relied upon defendant for
assistance leads plaintiff to conclude that defendant did not act
"with the reasonable prudence and care of a reasonable man in the same or like
circumstances". Defendant's position is that there was no volunteered assumption of
duty to care for the safety of the
decedent. He argues that the facts within his knowledge on the
evening of August 26, 1966, and the evidence introduced at trial failed to establish
that defendant should have seen that Richard Farwell
[**224] had suffered a potentially fatal injury requiring immediate attention.
Defendant did not voluntarily assume the
duty of caring for the
decedent's safety. Nor did the circumstances which existed on the
evening of August 26, 1966, impose such a
duty. Testimony revealed that only a qualified physician would have reason to
suspect that Farwell had suffered an injury which required immediate
medical attention. The
decedent never complained of pain and, in fact,
[***24] had expressed a desire to retaliate against his attackers. Defendant's
inability to arouse the
decedent upon arriving at his
grandparents' home does not permit us to infer, as does plaintiff, that defendant knew or
should have known that the
deceased was seriously injured. n1
[*296] While it might have been more prudent for the defendant to insure that the
decedent was safely in the house prior to leaving, we cannot say that defendant acted
unreasonably in permitting Farwell to spend the night asleep n2 in the back
seat of his car.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n1 It is at this point -- plaintiff's unsuccessful attempt to arouse the
decedent in the
driveway -- that counsel, during oral argument, believes that defendant volunteered to
aid the
decedent. Yet no affirmative act by defendant indicated that he assumed the
responsibility of rendering assistance to the
decedent. Consequently, there could be no
discontinuance of aid or protection which left
decedent in a worse position than when the alleged
"volunteering" occurred. This would make operative the concession of plaintiff that where no
duty is
owed, the refusal to act cannot
form the basis for an action in negligence.
[***25]
n2 Defendant had no way of knowing that it was the severity of the head injury
suffered by the
decedent which caused him to crawl in the back
seat and apparently fall asleep. The altercation combined with the consumption of
several beers could easily permit defendant to conclude that
decedent was simply weary and desired to rest.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
The close relationship between defendant and the
decedent is said to establish a
legal duty upon defendant to obtain assistance for the
decedent. No authority is cited for this proposition other than the public policy
observation that the interest of society would be benefited if its members were
required to assist one another. This is not the appropriate case to establish
a standard of conduct requiring one to legally assume the
duty of insuring the safety of another. Recognizing that legal commentaries have
expressed moral outrage at those decisions n3 which permit one to refuse aid to
another whose life may be in
peril, we cannot say that, considering the relationship between these two parties and
the existing circumstances, defendant acted in an unreasonable
[***26] manner. n4
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n3 The most notable of which include:
Osterlind v Hill, 263 Mass 73;
160 NE 301;
56 ALR 1123 (1928);
Yania v Bigan, 397 Pa 316;
155 A2d 343 (1959); and
Handiboe v McCarthy, 114 Ga App 541;
151 SE2d 905 (1966).
n4 Were a
special relationship to be the basis of imposing a
legal duty upon one to insure the safety of another, it would most probably take the form
of
"co-adventurers" who embark upon a hazardous undertaking with the understanding that each is
mutually dependent upon the other for his own safety. There is no evidence to
support plaintiff's position that
decedent relied
upon defendant to provide any assistance whatsoever. A situation where two
persons are involved in an altercation provoked by the party ultimately
injured, the extent of which was unknown to the other, whose subsequent conduct
included drinking beer and a desire to retaliate against his attackers would
not fall within this category.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[*297] Plaintiff believes that a
legal duty to aid others should exist
[***27] where such assistance greatly benefits society and only a reasonable burden is
imposed upon those in a position to help. He contends further that the
determination of the existence of a
duty must rest with the jury where questions of foreseeability and the relationship
of the parties are primary considerations.
It is clear that defendant's nonfeasance, or the
"passive inaction or a failure to take steps to protect [the
decedent] from harm" n5 is urged as being the proximate cause of Farwell's death. We must reject
plaintiff's proposition which elevates a moral obligation to the
level of a
legal duty where, as here, the facts within defendant's knowledge in no way indicated
that immediate
medical attention was necessary and the
[**225] relationship between the parties imposes no
affirmative duty to
render assistance. See
Steckman v Silver Moon, Inc, 77 SD 206;
90 NW2d 170;
64 ALR2d 1171 (1958). The posture of this case does not permit us to create a
legal duty upon one to
render assistance to another injured or imperiled party where the initial injury was not caused
by the person upon whom the
duty is sought to be imposed.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n5 Prosser, Torts (4th ed),
§ 56, pp 338-339.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
[***28]
The relationship of the parties and the question of foreseeability does not
require that the jury, rather than the court, determine whether a
legal duty exists. We are in agreement with the general principle advanced by
plaintiff that the question of negligence is one of law for the court only when
the facts are such that all reasonable men must draw the same conclusion. n6
However, this principle becomes operative only after the court establishes
[*298] that a
legal duty is
owed by one party to another. Prosser's analysis of the role of the court and jury
on questions of
legal duty bears repeating:
"The existence of a
duty. In other words, whether, upon the facts in evidence, such a relation exists
between the parties that the community will impose a legal obligation upon one
for the benefit of the other -- or, more simply, whether the interest of the
plaintiff which has suffered invasion was entitled to legal protection at the
hands of the defendant. This is entirely a
question of law, to be determined by reference to the body of statutes, rules, principles and
precedents which make up the law; and it must be determined only by the court.
* * * A decision
by the court
[***29] that, upon any version of the facts, there is no
duty, must necessarily result in judgment for the defendant." Prosser, Torts (4th ed),
§ 37, p 206.
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n6
McCullough v Ward Trucking Co, 368 Mich 108;
117 NW2d 167 (1962);
Barnebee v Spence Brothers, 367 Mich 46;
116 NW2d 49 (1962).
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Michigan recognizes that the question of
duty is to be resolved by the court rather than the jury.
Fisher v Johnson Milk Co, Inc, 383 Mich 158;
174 NW2d 752 (1970).
The Court of Appeals properly decided as a
matter of law that defendant
owed no
duty to the
deceased.
We would affirm.
Prepared: February 8, 2002 - 5:02:29 PM
Edited and Updated, February 12, 2002
Back to
Philosophy of Law
Home Page