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### STATE OF MICHIGAN

COURT OF APPEALS

MICHAEL CHELIK,

Plaintiff-Appellant/Cross-Appellee, FOR PUBLICATION October 27, 2015

9:05 a.m.

v No. 322349 Ingham Circuit Court CAPITOL TRANSPORT, L.L.C., LC No. 11-001266-NO

Defendant,

and

SPARROW HOSPITAL,

Defendant-Appellee/CrossAppellant.

Before: B OONSTRA , P.J., and S AAD and H OEKSTRA , JJ.

S AAD

, J.

I. NATURE OF THE CASE

After plaintiff broke his arm in a fall and after defendant Sp arrow Hospital 1 administered medical treatment, Sparrow advise d plaintiff that it could do n o more for him, recommended that he see a specialist the next da y, and discharged plaintiff from the hospital. Though plaintiff preferred to stay the night at the hospital, a doctor advised h im that the hospital facilities could not be used for mere overnight rest and therefore a cab was cal led to take him back to his hotel. Hospital personnel took plaintiff by wheelchair to the waiting room, where plaintiff waited for his cab, by himself. Upon arrival at the hospital, the cab dri ver assisted plaintiff out of the wheelchair and into the cab whereupon plaintiff fell once again and injured his other arm. Thereafter, plaintiff saw doctors for his broken arms. Plainti ff sued Sparrow for his injuries and notably did not sue Sparrow for medical malpractice either for Sparrow’s treatment or discharge of plaintiff, but rather claimed that Sparrow had breached a co mmon-law duty to assist plaintiff with his transportation after Sparrow discharged him from the h ospital. After the close of

1 Because defendant Capitol Transport, L.L.C. was dismissed from the suit before trial began, Sparrow Hospital is the only defe ndant at issue i n this appeal.-2- plaintiff’s proofs, the trial c ourt granted Sparrow’s motion fo r directed verdict on the grounds that Sparrow has no common-law duty to assist a discharged pati ent, such as plaintiff, with transportation from the hospital and that, were the court to fi nd such a duty, there was no evidence that Sparrow’s alleged br each was the proximate cause of plaintiff’s damages.

For reasons which we explain below, we hold that Michigan law does not impose a duty upon a hospital to assist a discha rged patient with transportat ion. And, because there is no duty,

we need not address the causation issue, but we note that, were we to decide this issue, we would hold that plaintiff failed to prove that any of his damages wer e caused by Sparrow.

II. BASIC FACTS

In November 2010, plaintiff lived in New Jersey, worked for Di sney in its Broadway musical touring division, and, as a member of the touring produ ction, performed at the Wharton Center on the campus of Michigan State University in East Lansi ng. After an evening performance, plaintiff, who weighed 345 pounds, fell while walk ing to his car. The fall broke plaintiff’s left elbow and left forearm.

It was near midnight by the time plaintiff was admitted into t he emergency department at Sparrow. Unable to do anything for plaintiff immediately, the Sparrow staff molded a splint for his left arm and told him to see an orthopedic surgeon the foll owing day. Plaintiff testified that he did not want to be discharged because he was tired; he did n ot want to travel the 20 or 25 minutes to his hotel and preferred to sleep at the hospital. T he doctor responded that the hospital could not use a bed as a place to spend the night and ultimatel y discharged plaintiff at 5:55 a.m.

The medical records show that th e doctor’s decision to discharg e plaintiff was based on the following findings: plaintiff’s condition had improved, plaint iff’s pain was controlled, an exam of plaintiff showed him to be “stable,” and a repeat exam also showed that plaintiff was “stable.” Furthermore, the nurse in charge conducted a “fall risk assessm ent” and, after watching plaintiff stand up by himself and walk acr oss the room, concluded that pl aintiff passed the assessment. When discharged, plaintiff was of fered a wheelchair, which he u sed.

A technician in the emergency department pushed plaintiff in t he wheelchair to the emergency room waiting area and then left. Soon thereafter, th e cab driver arrived and pushed plaintiff to the vehicle. Plaintiff was concerned with the dri ver’s ability to effectively assist, but

the driver reassured him that he has done this before and “don’ t worry about it.” After clearing out room in the front passenger seat, plaintiff asked the drive r if the wheelchair was locked, and the driver replied that “Yeah, it’s locked” and “I got you.” W ith the assistance of the driver, plaintiff pushed himself to a s tanding position, but he immedia tely felt wobbly and went back to sit down. But plaintiff felt that the chair was no longer in p lace because the driver had already moved it away, so instead of falling back, plaintiff pushed him self into the front of the vehicle and fell into the passenger compartment’s foot well on his righ t side. This latest fall resulted in injuries to plaintiff’s right elbow. X-rays taken later that d ay revealed that plaintiff’s right elbow

was now broken and his left arm had t he same injuries as before

.

A few days later, plaintiff underwent surgery for his left arm , and two days after that, surgery was performed on his right elbow. These surgeries left plaintiff in a precarious state because he could not use either of his arms. After returning t o his home in New Jersey, plaintiff-3- saw an orthopedic surgeon, who prescribed six weeks of physical therapy for the right arm. After that six-week session was complete, the plan was for ther apy to focus on the more severely injured left arm. After the therapy on the right arm, plaintif f was able to do “normal” things with it, but he nevertheless could not work anymore because of his i nability to use his left arm.

In his suit, plaintiff alleged negligence on the part of Sparr ow in failing to assist him into the taxi cab. Notably, he did not claim malpractice regarding his treatment or discharge at Sparrow. At the close of plaintiff’s proofs, Sparrow moved for directed verdict on two grounds. First, Sparrow argued that it had no duty to assist a discharge d patient into a waiting vehicle. Second, Sparrow argued that plaintiff failed to present any evi dence of causation. Specifically, the evidence indicated that plaintiff could no longer work beca use he could no longer use his left arm and elbow. But Sparrow claimed that plaintiff never produc ed any medical testimony explaining how plaintiff’s right elbow injury—the injury at issue from the cab incident— contributed to his inability to work. After hearing arguments from both sides, the trial court granted Sparrow’s motion base d on a lack of causation evidence.

Plaintiff moved for reconsideration. The trial court denied p laintiff’s motion but stated that “[a]lthough the Court articulated its reasoning on the rec ord as to why a directed verdict would have been appropriate regarding causation and damages, th e primary issue was that Sparrow did not owe Plaintiff a duty.” The court noted that th e evidence established that Sparrow did not have a policy requiring employees to assist dis charged patients into awaiting vehicles and there also was no evidence that Sparrow assumed th e responsibility of assisting such patients into vehicles.

III. ANALYSIS

On appeal, plaintiff’s sole argument is that the trial court e rred in its determination that Sparrow did not have a duty to ass ist plaintiff in to the taxi c ab. We disagree.

In a negligence analysis, the question of whether a duty exist s is a question of law that we

review de novo. Loweke v Ann Arbor Ceil ing & Partition Co, LLC , 489 Mich 157, 162; 809 NW2d 553 (2011). Additionally, decisions on a motion for direc ted verdict are reviewed de

novo as well. Sniecinski v Blue Cross & Blue Shield of Mich , 469 Mich 124, 131; 666 NW2d 186 (2003). When deciding on a motion for directed verdict, th e evidence and all legitimate inferences are reviewed in the light most favorable to the nonm oving party. Id. Such a motion “should be granted only if the evidence viewed in this light fa ils to establish a claim as a matter

of law.” Id.

To establish a prima facie case of negligence, a plaintiff mus t prove the following elements: (1) the defendant owed the plaintiff a leg al duty, (2) the defendant breached the legal duty, (3) the plaintiff suffered d amages, and (4) the defendant’s breach was a proximate cause of the plaintiff’s dam ages. [ Loweke

, 489 Mich at 162.]

Regarding the element of duty, “[a] negligence action may only be maintained if a legal duty exists which requires the defendant to conform to a partic ular standard of conduct in order to protect others against unreasonable risks of harm.” Riddle v McLouth Steel Products Corp,-4- 440 Mich 85, 96; 485 NW2d 676 (1992) (em phasis added); see also Prosser & Keeton, Torts (5th ed), § 53, p 356 (defining “duty” as “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward a nother.”) (emphasis added). Because the question of whether the common law, as a matter of public policy, ought to impose a duty upon one for the benefit of another necessarily involves t he balancing of interests and societal costs and prudence calls for consistency in applicatio n, this is a question of law, which courts, not juries decide. See In re Certified Question from Four teenth Dist Court of Appeals of

Tex , 479 Mich 498, 505; 740 NW2d 206 (2007); Terrien v Zwit , 467 Mich 56, 66-67; 648 NW2d 602 (2002); Charles Reinhart Co v Winiemko , 444 Mich 579, 601; 513 NW2d 773 (1994); Prosser & Keeton, § 37, at p 236 ( stating that deciding on the existence of a duty requires “reference to the body of statutes, rules, principles and prece dents which make up the law; and it must be determined only by the c ourt.”). As explained by our S upreme Court,

Because the ultimate inquiry in determining whether a duty shou ld be imposed involves balancing the social ben efits of imposing that a duty with the social costs of imposing a duty, we cannot decide whether a duty should be i mposed without assessing the competing policy considerations. We must be conc erned with whether it is appropriate public policy to impose liability. I n fixing the bounds of duty, not only logic and science, but policy play an important role. There is a responsibility to consider the l arger social consequences of th e notion of duty and to correspondingly tailor that notion so that the illegal conse quences of wrongs are limited to a controllable degree. In determining whether a duty exists, courts must be mindful of the precedential effects of their rulings, a nd limit the legal consequences of wrongs to a cont rollable degree. Moreover, any extension of the scope of duty must be tailored to reflect accurately the extent that its social benefits outweigh its costs. [ In re Certified Question , 479 Mich at 518-519 (quotation marks, citations, brackets, and ellipses omitted).]

Furthermore, if left to juries to decide, it invariably would p roduce differing results even when confronted with factually indistinguishable circumstances, Moning v Alfono , 400 Mich 425, 435; 254 NW2d 759 (1977), and this would be an untenable situation, as people could never know with any certainty if they wer e legally under any particular du ty.

Factors for a court to consider when considering whether to im pose a duty include the following: “the relationship of the parties, the foreseeabilit y of the harm, the burden on the defendant, and the nature of the risk presented.” Hill v Sears, Roebuck & Co , 492 Mich 651, 661; 822 NW2d 190 (2012) (citations, quotation marks, and brack ets omitted). Although the relationship of the parties has been described as the most impo rtant factor, In re Certified Question , 479 Mich at 505, the foreseeability of the harm is just as im portant. That is because “‘[b]efore a duty can be imposed, there must be a relationship between the parties and the harm

must have been foreseeable.’” Hill , 492 Mich at 661, quoting In re Certified Question , 479 Mich at 509 (emphasis added). Consequently, “[i]f either of these t wo factors is lacking, then it is unnecessary to consider any of t he remaining factors.” Hill , 492 Mich at 661.

Here, plaintiff asserts that Sparrow was negligent through non feasance, which is the passive inaction or failure to actively protect others from har m, and not misfeasance, which is the active misconduct causing personal injury. Williams v Cunningham Drug Stores, Inc , 429 Mich-5- 495, 498; 418 NW2d 381 (1988). That is, plaintiff alleges that Sparrow had a duty to assist or aid plaintiff but failed to do s o. Under Michigan common law, generally there is no duty for one person to aid or protect another, absent a special relationship based on control. Id. at 498-499. “The rationale behind imposing a duty to protect in these speci al relationships is based on control. In each situation one person entrusts himself to the control and protec tion of another, with a consequent loss of control to protect himself.” Id. Here, Sparrow had no control over plaintiff. Sparrow already discha rged plaintiff when plaintiff attempted to get into a taxi cab parked outside the hospital. While Sparrow requested the cab a t plaintiff’s request, this does not constitute “control” over plaintiff. As a result, at the time of the injury, there was no special relationship between Sparrow and plaintiff, and clearly Sparrow had no control over plaintiff. Therefore, we hold that plainti ff has failed to establish that Sparrow had any duty to act on behalf of plaintiff at the time plaint iff sustained his injury when he fell into the cab.

Furthermore, the analysis on the foreseeability factor is fata l to plaintiff’s claim as well. Again, plaintiff was evaluated before being discharged, and it was determined that his condition had improved, his pain was controlled, and two exams showed tha t he was “stable.” Additionally, plaintiff had passe d a “fall risk assessment” aft er being able to stand up and walk by himself across the room. These facts reveal that plaintiff was in better condition than he was when he arrived at the hospital and was capable of ambulating f rom a seated position. In light of these facts, it was not reasonably foreseeable that plaintiff w ould injure himself while being assisted into a cab. Consequentl y, we hold that Sparrow did no t have a legal duty to assist plaintiff into an awaiting vehicle. Therefore, the trial court properly held that Sparrow had no duty to plaintiff and correctly g ranted a directed verdict. 2

A holding to the contrary would appear to be unprecedented. P laintiff has failed to identify any caselaw in Michigan, or any other state, that prov ides that a hospital has a legal duty to assist its discharged patients into vehicles, and our resear ch has not uncovered such precedent. In fact, what caselaw exists directly supports the conclusion t hat no such duty ex ists. See, e.g.,

Cameron v New York , 322 NYS2d 562, 566; 37 AD2d 46 (1971) (“[T]he law does not im pose upon a hospital the continuing duty to exercise a parental role over discharged patients.”). The reason is clear. It would be an unreasonable imposition upon h ospitals and health care providers for the law to require that they aid every properly discharged patient with transportation. The legal obligations thus imposed would be endless, unpredictable, and therefore unreasonable. A health care provider has no comm on-law legal duty to assist a d ischarged patient with transportation. 3

2 We also note that much of plaintiff’s testimony focused on the fact that he thought he was not as capable of ambulating as Sparrow had determined before being discharged. However, to the extent that this suggests misdia gnosis, this would be a medical malpractice claim, not the ordinary negligence claim that is the issue in the instant case

.

3 We also note that much of plaintiff’s testimony focused on the fact that he thought he was not as capable as Sparrow had determined before being discharged. However, to the extent that Sparrow did misevaluate plaintiff’s condition at discharge, tha t would be a medical malpractice-6- Affirmed. Sparrow, as the prevailing party, may tax costs pur suant to MCR 7.219. 4

/s/ Henry William Saad

/s/ Mark T. Boonstra

claim—not the ordinary negligence claim that is the issue in th e instant case. Accordingly, the fact that plaintiff avers that he was not stable and not able t o keep his balance after being discharged is not relevant fo r the pertinent analysis.

Although we have decided this case on the dispositive issue of duty, we note that even if a duty existed, reversal would not be required because, as the trial court alternatively ruled, there was no evidence that the injuries plaintiff suffered at Sparrow caused any of the work-loss damages he sought. Those damages, instead, were solely caused by plaintiff’s prior injury to his

left arm.

4 Sparrow filed a “cross-appeal” and in its raised issue claims that plaintiff’s brief on appeal is inadequate to present his issue to this Court because it simply incorporated by reference plaintiff’s prior submission to this Court in Docket No. 319518 , where Sparrow was the appellant and sought leave to app eal the trial court’s denial o f its motion for summary disposition. Notwithstanding Sp arrow’s label to the contrary, this issue is not a “cross-appeal.” It does not appeal or challenge anything that happened at the t rial court. As such, we simply have treated it as an alternative argument for this Court to ru le against plaintiff in his appeal

. However, we decline to deem plaintiff’s appeal waived or abando ned on this basis, especially in light of the fact that plainti ff did provide a thorough briefin g in his reply brief.