During oral argument near the end of 2021, then Michigan Chief Justice Bridget Mary McCormack asked a rhetorical question that did not ultimately control the Court’s opinion in the case of Rowland v. Independence Village of Oxford, LLC.1 In hindsight, McCormack’s point that a defendant’s legal duty is supposed to be framed generally and not specifically has proven prescient.Recent Michigan Supreme Court decisions have followed this direction by reorienting the law of legal duty to general considerations of whether one owes any obligation to another, moving away from legal authorities that framed questions of legal duty in very specific terms. With legal duty framed in broad terms, specific actions or inactions of the defendant inform questions of breach, which the Supreme Court has invoked as a legal defense in three decisions.

FOCUS ON GENERAL CONCEPTS OF LEGAL DUTY ROOTED IN PRECEDENT

Decisions include Clark v. Dalman² and Moning v. Alfono,³ a seminal decision in Michigan that spoke in broad general terms about legal duty rather than highly specific terms about what a defendant must or must not do:

“Duty” comprehends whether the defendant is under any obligation to the plaintiff to avoid negligent conduct[.]⁴

Legal duty is framed in even broader terms elsewhere in the opinion:

“Duty” is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor’s part for the benefit of the injured person.⁵

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[I]n negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in light of the apparent risk.⁶

To Michigan lawyers who came of age in the 2000s and 2010s, this language seemed unrecognizably different from what they had come to understand as the definition of legal duty.

Moning rose from the sale of slingshots marketed to children. Alfono, the defendant, was an 11-year-old child who bought one of the slingshots and, while playing with his friend, shot a pellet that struck plaintiff Moning in the eye, causing permanent loss of sight. The differing views of legal duty between the majority and dissenting opinions highlight concepts of legal duty framed broadly from those framed specifically, and the majority opinion simply stated that the defendants owed “a duty to avoid conduct that was negligent.”⁷

The Moning opinion quoted with approval William Lloyd Prosser’s treatise that “the problems of ‘duty’ are sufficiently complex without subdividing it in this manner to cover an endless series of details of conduct. [...] What the defendant must do, or must not do, is a question of the standard of conduct required to satisfy the duty.”⁸

In contrast, the dissenting opinion would have ruled that the “defendant did not owe plaintiff minor the asserted duty not to manufacture, distribute and sell slingshots” which the majority opinion held improperly blended questions of duty, general and specific standard of care, and proximate cause.⁹ The majority opinion honed in on the differing views of legal duty and admonished the dissenting justices for obscuring “the separate issues in a negligence case (duty, proximate cause and general and specific standard of care) to combine and state them together in terms of whether there is a duty to refrain from particular conduct.”¹⁰

Michigan law had ultimately fallen into the trap Prosser noted; for example, opinions framing legal duty as “[t]he limited duty defendant installers undertook [...] was only to properly deliver and install the washer and electric dryer in plaintiff’s home.”¹¹

ROWLAND: REINVIGORATING MONING

In Rowland, the plaintiff represented the estate of Virginia Kermath, an elderly tenant of an independent living facility who wandered away from the building and died from exposure to below-freezing temperatures. The plaintiff’s complaint alleged highly specific formulations of duty, i.e., whether the defendant had a duty to install alarms on the building’s doors, whether there was a duty to use a monitoring system, and other concepts of legal duty which would only relate to the specific dispute between the parties.

Both the Michigan Court of Appeals and Supreme Court decisions focused on whether the harm was foreseeable, a factor in the legal duty analysis. But a question that proved rhetorical foreshadowed an even bigger shift in the law than the ruling that Kermath’s death was foreseeable. During the plaintiff’s oral argument, McCormack interrupted the discussion to inquire:

I was confused by the complaint frankly. ... Why aren’t the specific things that might have been done to protect [the deceased in this case], why aren’t those questions of breach? And why are we making this so hard that the duty is to put on a bell that rings at a pitch that’s like can be heard by a dog and I don’t understand why we fetishize describing a duty so specifically. Doesn’t the landlord just have a duty of reasonable care and then we determine whether that duty was breached based on the particular facts of this relationship?¹²

Plaintiff’s counsel responded that the Court need not answer this question. The Court’s opinion did not address it, instead relying on foreseeability to overrule the lower courts and hold that the defendant owed the plaintiff a legal duty.¹³

“ISN’T IT THE CASE THAT A COURT COULD FIND ... THAT THERE’S NO BREACH AS A MATTER OF LAW?”¹⁴

In the same term Rowland was argued and decided, the Court found such a case, McMaster v. DTE.¹⁵ The plaintiff, Dean McMaster, was injured after a large metal pipe rolled off the back of a container that had been filled with waste material from renovation and construction projects at a DTE facility. McMaster had been hired to haul scrap materials to a salvage yard. The dispute hinged on which party had the legal duty to secure the scrap materials — McMaster as the hauler or DTE as the shipper — and the Court ultimately held, consistent with our state’s comparative fault system, that both parties had legal obligations but that there was no proof DTE breached any obligation it owed to McMaster.

The opinion noted that the “case concerns the duties of shippers, common carriers, and drivers in the trucking industry” and the Court ultimately adopted a doctrine known as the Savage rule or shipper’s exception, which outlines when a shipper (in this case, DTE) may be liable for an injury or damage caused by the cargo:

A shipper owes a common-law duty to use reasonable care while loading cargo and will be liable for injury to persons or property for defects that are not readily discernible by the carrier. The carrier still owes a duty to inspect and correct any defects that it can perceive, even if the shipper was the one who initially caused the defect.¹⁶

The lower courts had dismissed the plaintiff’s claim for a lack of legal duty and DTE presented two separate arguments under which no legal duty was owed. The Supreme Court affirmed on different grounds, however, holding that DTE did owe plaintiff a duty of care, but the claim failed for lack of proof of breach.

In the following term, the Supreme Court further shifted its focus away from legal duty and toward breach with its landmark opinion in the consolidated cases of Elsayed v. F & E Oil and Pinsky v. Kroger.¹⁷ The opinion is properly understood as a repudiation of the open and obvious doctrine as a component of a premises possessor’s legal duty, but should also be noted as a further shift of the Court’s focus away from legal duty and toward breach. The opinion even cited Rowland and held that “the question of breach — ‘whether defendants’ conduct in the particular case is below the general standard of care’ — is a question of fact for the jury.”¹⁸

The Court did not relegate the open and obvious doctrine obsolete and instead reoriented it toward breach and comparative fault rather than legal duty. Even as a question of breach, the Court again reaffirmed that where there are no genuine disputes of material fact concerning breach, courts can decide the issue as a matter of law.¹⁹

Later that same year, the Court issued a peremptory order further exploring the promise of McMaster and Rowland as recognized in Elsayed and, in a case involving a pedestrian-motor vehicle accident, held that the plaintiff’s claim failed where “there was no showing that the defendant driver could have altered his conduct to avoid the accident.”²⁰ The defendant was entitled to summary disposition not because of a lack of duty, but because he had done nothing wrong.

The dissenting Court of Appeals opinion, cited with approval in the Supreme Court’s order, framed the deficiency as a failure to prove breach where “nothing could have been done to avoid the accident.”²¹ Justice Elizabeth Welch’s concurring opinion agreed with the conclusion regarding causation, but highlighted the lack of proof of breach or that the defendant failed to exercise reasonable care.²²

CONCLUSION

The shift from specific formulations of duty to a general formulation has its roots in historic Michigan precedent; it remains to be seen whether the Supreme Court will go all the way back or stop somewhere in the middle. The McMaster and Elsayed opinions found that a legal duty was owed in each case but did not go so far as to frame it as whether the defendant had any obligation to the plaintiff. As this shift in analytical focus is still relatively new, it remains to be seen just how close to Moning the Court gets.