D.F. WALSH, J.
This is a consolidated appeal from summary judgments entered in favor of defendants Lester Johnson and Genesee Merchants Bank & Trust [hereinafter Bank]. GCR 1963, 117.2(3).
Plaintiffs brought separate causes of action on
Defendant Garlock contracted with defendant Johnson to have the latter serve as auctioneer at a sale of Garlock's farm tools, machinery, hardware and furniture, for which Johnson would receive 7 1/2 percent of the sales price.
In turn Johnson hired defendant Bank to provide clerking and cashiering services at the auction for which Johnson paid, out of his share, 2 percent of the sales price. The Bank had no contract with Garlock and exercised no control over the auctioneer, the goods being sold or the prices asked.
On the day of the auction (and through prior advertisement) Johnson disclosed that Garlock was the owner of the goods to be auctioned. No representations regarding the quality or fitness of the drums in question were made by Johnson or by the Bank.
Defendant Robb purchased the drums at the auction and took them to his farm. More than 2 years later the four minors were playing with a cigarette lighter near one of the drums when it exploded, injuring them.
Plaintiffs' challenge to the summary judgment granted to defendants Johnson and Bank requires us to answer the following questions:
(1) Was there a genuine issue as to a material fact concerning defendant Johnson's liability?
(2) Did defendant Johnson, the auctioneer, have a duty to inspect the drums and to warn defendant Robb of their dangerous propensities?
(3) Did defendant Bank have a duty to inspect
(4) Was the Bank engaged in a joint venture with Johnson and Garlock so as to render it jointly and severally liable for their actions?
The first question concerns the existence of material factual issues. The affidavits and depositions offered in support of defendant Johnson's motion for summary judgment established that he was hired as an auctioneer, that he did not inspect the drums and that he made no representations as to their quality or fitness. In their argument plaintiffs relied on those same documents and offered no other proofs.
The trial court was correct in finding the above facts undisputed. Whether summary judgment was proper turns on the resolution of the next issue.
"In negligence cases, even though there may be no dispute as to the quantitative or physical facts, summary judgment will almost always be inappropriate * * * unless on the undisputed physical facts a judge would say that a directed verdict would be required [because of the absence of a] negligence issue for the jury." Durant v Stahlin, 375 Mich. 628, 653; 135 N.W.2d 392 (1965) (Opinion of SOURIS, J.).
In negligence cases a duty may be defined as an obligation to which the law will give effect and recognition to conform to a particular standard of conduct toward another. Farwell v Keaton, 396 Mich. 281; 240 N.W.2d 217 (1976).
The reasonableness of the risk of harm whether analyzed in terms of duty, proximate cause or specific standard of care turns on how the utility of the defendant's conduct is viewed in relation to the magnitude of the risk thereby created. Moning v Alfono, supra. In any case where there might be a reasonable difference of opinion regarding how that balance should be resolved, the question is for the jury, subject to instructions as to the legal conclusion to be drawn from its determination. Moning v Alfono, supra, Bonin v Gralewicz, 378 Mich. 521; 146 N.W.2d 647 (1966).
However, a court may decide that the utility of the defendant's conduct so overrides the degree of risk thereby created that juries will not be permitted to impose liability upon the defendant for the resultant harm. Moning v Alfono, supra, cf. Holloway v Martin Oil Service, Inc, 79 Mich.App. 475; 262 N.W.2d 858 (1977).
In the instant case plaintiffs ask us to recognize an auctioneer's obligation to inspect all goods sold at a farm auction. We must determine whether, given the social utility of such auctions, the magnitude of risk of the auctioneer not inspecting the items for sale justifies the burden imposed by such an obligation.
Farm auctions serve both public and private
In determining the magnitude of risk we must assess the number of people likely to be injured due to discoverable dangerous conditions present in items purchased at farm auctions.
Given the relatively small number of auctioned items containing discoverable dangerous conditions and the near certainty that the purchaser will
On the other hand, the burden that would be imposed upon farm auctions by requiring inspection would be considerable. An auctioneer would have to become qualified to detect potentially dangerous conditions in a wide variety of goods or risk considerable liability each time he sold an item. Those who did not go out of business would certainly raise their rates to reflect the added expense and risk. Given the increasingly large awards in personal injury cases and the comparatively small amount of money realized by auctioneers for their labors we find that the detrimental impact upon farm auctions would be substantial.
In light of the foregoing considerations we conclude that all reasonable persons would agree that the risk created by an auctioneer's failure to inspect the items to be sold at a farm auction is a reasonable risk. Therefore, defendant's liability may not be predicated upon his failure to inspect the drums in question.
In their argument on the third question plaintiffs ask that we impose upon the Bank the duty discussed in the immediately preceding pages. Having rejected that argument for the auctioneer, we see even less reason to impose that duty on the Bank, whose participation in the sale of the goods was limited to collecting the purchase money. We think it clear that the relationship of the Bank, acting as no more than clerk and cashier, to the purchasers at the auction was insufficient to require the Bank to inspect the sale items. Moning v Alfono, supra.
In their final argument plaintiffs attempt to attach liability to the Bank on the theory that it was a joint venturer in the auction with Garlock and Johnson. Their contention is devoid of merit.
The elements of a joint venture are:
(a) an agreement indicating an intention to undertake a joint venture;
(b) a joint undertaking of
(c) a single project for profit;
(d) a sharing of profits as well as losses;
(e) contribution of skills or property by the parties;
(f) community interest and control over the subject matter of the enterprise. Goodwin v S A Healy Co, 383 Mich. 300; 174 N.W.2d 755 (1970), Hathaway v Porter Royalty Pool, Inc, 296 Mich. 90; 295 NW 571 (1941).
The summary judgment in favor of the Bank is affirmed.
Affirmed. Costs to appellees.
Although the question of Johnson's liability premised on his actual knowledge of the danger raises an issue distinct from his duty to inspect, it does not alter our decision in this case. According to the affidavit and depositions in the record, Johnson's knowledge was limited to the fact that the drums were fuel drums, and he so advised the purchasers. His sworn deposition avers that he never inspected the drums, and plaintiffs could point to no contrary evidence indicating that he had any knowledge of the presence of fuel in the drums.
By hypothesis, liability premised on actual knowledge requires proof of that element. The total absence of any such proof in this case would have justified a directed verdict for the defendant. Summary judgment was, therefore, proper. Durant v Stahlin, 375 Mich. 628; 135 N.W.2d 392 (1965) (opinion of SOURIS, J.).