Bounds v Krause

2015 Mich. App. LEXIS 878

1. Although this case involves a real estate claim, the plaintiff brings a suit in negligence. According to the court, what are the basic elements of a negligence claim?
2. What duty does the plaintiff claim the defendant owed him in this case? Does the court agree that such a duty exists?
3. If no duty is present, then further analysis is not required. However, the court did consider the next element in a negligence case: breach. Was there evidence of a breach?
4. If there any other basis for the plaintiff's complaint against the defendant?

112 BOUNDS V. KRAUSE 2015 Mich. App. LEXIS 878 PER CURIAM. Plaintiff filed the present action in January 2013 and alleged negligence, gross negligence, conversion, trespass, continuing trespass, nuisance, unjust enrichment, intentional infliction of emotional distress, and fraudulent mis- representation. Defendant moved for summary disposition pursuant to MCR 2.116(C)(8) and (10). The trial court granted the motion and dismissed all of the claims in plaintiff's complaint pursuant to both MCR 2.1 16(C)(8) and (10). The trial court relied exclusively on the language of the restrictive cov- enant in the easement conveyance document as a basis to dismiss all of plain- tiff's claims and found that "the negative implication of the language pro- hibiting the Plaintiff from building or allowing others to build signs on the property reserved and conveyed that specific right to the ACRC." To establish a prima facie case of negligence, a plaintiff must prove: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, 3) causation, and (4) damages. "Accordingly, a defendant is not liable to a plaintiff (for negligence) unless the defendant owed a legal duty to the plain- tiff." If a court determines as a matter of law that a defendant owed no duty to a plaintiff, summary disposition of a negligence claim is properly granted pursuant to MCR 2.116(C)(8). Likewise, duty is "an essential element" of a claim for gross negligence. "Summary disposition of a plaintiff's gross negli gence claim is proper under MCR 2.116(C)(8) if the plaintiff fails to establish a duty in tort." Beaudrie v. Henderson, 465 Mich. 124, 130; 631 N.W.2d 308 (2001). "Duty is an obligation to conform to a specific standard of care toward another as recognized under the law." Smith v. Stolberg, 231 Mich. App. 256, 258; 586 N.W.2d 103 (1998). In the present case, plaintiff's complaint alleges that defendant, as a busi- nessman advertising on the property, had a continuing duty to verify "own- ership" of the property and to verify "entitlement and permission" to use the property. However, plaintiff's complaint does not identify a legal basis for this alleged duty; plaintiff does not allege that this is a statutory duty or that this duty arises from the common law based on a special relationship between himself and defendant or because he entrusted himself to the control and pro- tection of defendant in any way. In addition, plaintiff's complaint does not identify a factual basis for the breach of this alleged duty. Instead, the alle- gations in the complaint support a conclusion that, to the extent such a duty does exist, defendant actually complied with it when he identified plaintiff's predecessors in interest as the owners of property, sought entitlement and permission from both plaintiff's parents and the township before he began to advertise on the property, and thereafter continued to recognize plaintiff as the owner of the property for a significant period of time. The mere state ment of the conclusions that defendant owed plaintiff a duty and that this, duty was breached does not suffice to state a cause of action if unsupported by Introduction to Negligence 113 allegations of fact, ETT Ambulance Service Corp v. Rockford Ambulance, Inc., 204 Mich. App. 392, 395; 516 N.W.2d 498 (1994), and the trial court properly dismissed plaintiff's claims of negligence and gross negligence pursuant to MCR 2.1 16(C)(8). Michigan law recognizes a common-law tort of conversion and a stat- utory tort of conversion. Lawsuit Financial, LLC v. Curry, 261 Mich. App 579, 591-592; 683 N.W.2d 233 (2004). Common-low conversion is "any dis- tinct act of domain wrongfully exerted over another's personal property in denial of or inconsistent with the rights therein." Id. at 591. "Statutory con- version consists of knowingly buying, receiving, or aiding in the concealment of any stolen, embezzled, or converted property." Id. at 592-593, citing MCL 600.2919a. However, a claim for conversion does not lie with respect to real property. Endus v. Hunter, 268 Mich. 233, 237; 256 N.W. 323 (1934). In the present case, plaintiff's complaint only alleges conversion with regard to real property. Plaintiff's claim thus fails as a matter of law, Eadus, 268 Mich. at 237, and the trial court properly dismissed plaintiff's claim of conversion pur- suant to MCR 2.116(C) (8). In sum, the trial court properly granted summary disposition as to most of plaintiff's claims, although the reasons for affirming are different than that on which the trial court relied. With respect to trespass, continual trespass and unjust enrichment, the trial court improperly granted summary disposi- tion for defendant. Questions about the case: 1. Although this case involves a real estate claim, the plaintiff brings a suit in negligence. According to the court, what are the basic elements of a negligence claim? 2. What duty does the plaintiff claim the defendant owed him in this case? Does the court agree that such a duty exists? 3. If no duty is present, then further analysis is not required. However, the court did consider the next element in a negligence case: breach. Was there evidence of a breach? 4. Is there any other basis for the plaintiff's complaint against the defen- dant