Decided April 1, 1976. Rehearing denied 397 Mich. 958.
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.
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 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.
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 duty, in negligence cases, may be defined as an obligation, 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.
"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."
This same rule was stated more recently in Davis v Thornton, 384 Mich. 138, 142; 180 N.W.2d 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."
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.
"Before any duty, or any standard 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, 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
"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 question at trial came down to whether Siegrist acted reasonably under all the circumstances. "The law of 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 N.W.2d 11 (1970).
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 N.W.2d 755 (1967).
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.
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 F.2d 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 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
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.
The Court of Appeals is reversed and the verdict of the jury reinstated.
KAVANAGH, C.J., and WILLIAMS, J., concurred with LEVIN, J.
LINDEMER and RYAN, JJ., took no part in the decision of this case.
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.
"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, where Siegrist was returning an automobile he had borrowed from a friend who was employed by the rental agency.
"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 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 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.
"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 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.
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.
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
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, 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.
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
It is clear that defendant's nonfeasance, or the "passive inaction or a failure to take steps to protect [the decedent] from harm"
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.
"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 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.
The Court of Appeals properly decided as a matter of law that defendant owed no duty to the deceased.
We would affirm.
COLEMAN, J., concurred with FITZGERALD, J.
"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.
"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.
Maritime law has imposed a duty upon masters to rescue crewmen who fall overboard. Harris v Pennsylvania R Co, 50 F.2d 866 (CA 4, 1931).
See Prosser, Torts, supra; 2 Harper & James, supra, pp 1048-1049.