            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



ESTATE OF VIRGINIA KERMATH, by                                     UNPUBLISHED
COSETTE ROWLAND, Personal Representative,                          January 14, 2020

              Plaintiff-Appellant,

v                                                                  No. 345650
                                                                   Oakland Circuit Court
INDEPENDENCE VILLAGE OF OXFORD,                                    LC No. 2016-156377-NO
LLC, UNIFIED MANAGEMENT SERVICES,
and SENIOR VILLAGE MANAGEMENT,

              Defendants-Appellees.


Before: RIORDAN, P.J., and SAWYER and JANSEN, JJ.

PER CURIAM.

        Plaintiff, Estate of Virginia Kermath, by Cosette Rowland, personal representative,
appeals as of right the trial court’s opinion and order granting summary disposition to
defendants, Independence Village of Oxford, LLC (Independence Village), Unified Management
Services (Unified Management), and Senior Village Management (Senior Management)
(collectively, defendants). We affirm.

                                I. FACTUAL BACKGROUND

        This matter arises from the death of Virginia, who was 89 years old at the time of her
passing. In 2009, Virginia was diagnosed with dementia. In 2010, Virginia moved into
Independence Village in Oxford, Michigan. Independence Village is a nonlicensed independent-
living facility with an “enhanced[-]living” section that offers additional amenities.1 The median



1
  Independence Village’s status as an unlicensed senior-living facility is important because a
senior-living facility is distinct from a nursing home. A nursing home is defined as “a nursing
care facility, including a county medical care facility, that provides organized nursing care and
medical treatment to [seven] or more unrelated individuals suffering or recovering from illness,



                                               -1-
age of a resident at Independence Village varies between 70 and 90 years old. Independence
Village is separated into two sections: Independent and Harbors. Harbors and Independent are
located on separate sides of the same building, which together, make up Independence Village.
Harbors, the enhanced-living and higher level of care section of Independence Village, makes up
37 out of Independence Village’s 145 apartments. Harbors has a registered nurse, a group of
caregivers that care for residents, and certain services not offered to residents in Independent.
Residents of Independent are entitled to a continental breakfast and dinner, biweekly
housekeeping, and laundry for linens. If a resident of Independent wanted additional services, he
or she could opt for them at an additional cost through an independent third-party contractor.

       The front-door entrance to Independence Village locked at 8:00 p.m. and unlocked at
7:00 a.m. The only security cameras in Independence Village were located near the front-door
entrance. Receptionists remained at the front-door entrance until 11:00 p.m. After 11:00 p.m.,
there was no way to ensure that a resident did not leave the building. Independence Village did
not have any sort of alarm system that would have notified the front desk that a side-exterior
door had been opened nor did it have any security cameras around the building.

        On June 12, 2010, Virginia signed the lease for her first-floor apartment at Independence
Village in the Independent section. Virginia’s lease did not specify any additional services
because additional services were provided at additional cost through Senior Home Care
Solutions, a company that leases an office inside Independence Village and provides residents
with “independent subcontracted care.” To get inside Virginia’s apartment, she needed one key
to enter the building and a separate key to enter the unit. While Virginia’s apartment door did
not automatically lock when shut, the exterior doors to the building did. On July 26, 2010,
Rowland entered into an agreement with Senior Home Care Solutions on Virginia’s behalf so
that Virginia could receive additional services. For $250 a month, a Senior Home Care Solutions
employee went to Virginia’s apartment twice a day to help with medications and meals, and to
notify Virginia about community activities. Eventually, Rowland terminated the agreement with
Senior Home Care Solutions after Virginia was given the incorrect medication. Rowland was
put in contact with Octavia Jones, an independent third-party caregiver. Jones worked with
Virginia seven days a week, helping Virginia to dress, shower, take her medication, and eat
meals.

       Virginia’s physical and mental condition deteriorated while living at Independence
Village. After a number of falls and conversations with Jones, Virginia and her family decided
that Virginia should move into Rowland’s home. Arrangements were made so that Virginia
would move in with Rowland sometime in February 2014. On December 14, 2013, Jones helped
Virginia into bed before leaving for the night. When Jones returned to Independence Village the



injury, or infirmity.” MCL 333.20109(1). The Michigan Department of Consumer and Industry
Services, Bureau of Health Systems, Division of Health Facility Standards and Licensing has
promulgated a myriad of administrative rules that address nursing homes and nursing care
facility standards. Because Independence Village is a nonlicensed facility, the regulations that
govern nursing homes are inapplicable.


                                               -2-
following morning, around 8:00 a.m., Virginia was standing outside of Independence Village,
wearing only a nightgown. Virginia had left her apartment without her keys and exited
Independence Village through a side-exterior door that automatically locks. Virginia was
outside for approximately 14 minutes. It was five degrees outside at the time. Virginia suffered
from hypothermia and frostbite that contributed to her death a few weeks later.

                                 II. PROCEDURAL HISTORY

        Plaintiff filed a complaint against defendants, alleging that defendants owed Virginia a
duty to exercise due care and caution and breached that duty of care by “negligently and
recklessly failing to monitor and/or protect doorways and exits at all times so as to prevent an
elderly, confused resident from being locked out of the building.” Plaintiff further alleged that
defendants breached their duty of care by failing to provide functional alarms on all of the doors
to alert staff that a resident exited the facility and failing to provide residents with a reliable
means of notifying staff that they are locked out of the facility.

       Defendants filed a motion for summary disposition under MCR 2.116(C)(8) and (10),
arguing that summary disposition was appropriate because plaintiff cannot establish that they had
a duty to monitor all of the exits and entrances. The trial court granted defendants’ motion for
summary disposition under MCR 2.116(C)(8) and (10), holding that defendants did not owe
Virginia a common-law duty of care because Virginia’s harm was not foreseeable. Plaintiff now
appeals the trial court’s order.

                                         III. ANALYSIS

        Plaintiff argues that the trial court erred when it granted defendants’ motion for summary
disposition because defendants owed Virginia a common-law duty of care. We disagree.

       “This Court reviews a trial court’s decision on a motion for summary disposition de
novo. Johnson v Vanderkooi, 502 Mich 751, 761; 918 NW2d 785 (2018). The trial court
granted defendants’ motion for summary disposition under MCR 2.116(C)(8) and (10). This
Court must treat defendants’ motion as having been decided under MCR 2.116(C)(10) to the
extent the trial court considered evidence beyond the pleadings. Van Buren Charter Twp v
Visteon Corp, 319 Mich App 538, 544; 904 NW2d 192 (2017).

        “[A] motion under MCR 2.116(C)(10) tests the factual sufficiency of a claim.” El-Khalil
v Oakwood Healthcare, Inc, __ Mich __, __; __ NW2d __ (2019) (Docket No. 157846); slip op
at 6. When considering a motion brought under MCR 2.116(C)(10), the trial court must review
the evidence in a light most favorable to the nonmoving party. Id. Summary disposition is only
appropriate when there is no genuine issue of material fact. Id., citing Lowrey v LMPS & LMPJ,
Inc, 500 Mich 1, 5; 890 NW2d 344 (2016). “ ‘A genuine issue of material fact exists when the
record leaves open an issue upon which reasonable minds might differ.’ ” El-Khalil, __ Mich at
__; slip op at 7, quoting Johnson, 502 Mich at 761.

       “Whether a defendant owes any duty to a plaintiff to avoid negligent conduct is a
question of law for the court to resolve.” Dyer v Trachtman, 470 Mich 45, 49; 679 NW2d 311
(2004). To establish a prima facie case of negligence, a plaintiff must prove the following: “(1)
the defendant owed the plaintiff a legal duty, (2) the defendant breached the legal duty, (3) the
                                                -3-
plaintiff suffered damages, and (4) the defendant’s breach was a proximate cause of the
plaintiff’s damages.” Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162;
809 NW2d 553 (2011). In a negligence action, the primary focus is on the existence of a duty,
which is the primary “threshold question.” Hill v Sears, Roebuck & Co, 492 Mich 651, 660; 822
NW2d 190 (2012). Although there is no general duty to aid or protect another, “[e]very person
engaged in the performance of an undertaking has a duty to use due care or to not unreasonably
endanger the persons or property of others.” Id. “Generally, the duty that arises when a person
actively engages in certain conduct may arise from a statute, a contractual relationship, or by
operation of the common law.” Id. In this case, plaintiff alleges that defendants’ duty of care
arose from the common law.

        The Michigan Supreme Court has stated the following with respect to a common-law
duty of care:

               At common law, the determination of whether a legal duty exists is a
       question of whether the relationship between the actor and the plaintiff gives rise
       to any legal obligation on the actor’s part to act for the benefit of the subsequently
       injured person. The ultimate inquiry in determining whether a legal duty should
       be imposed is whether the social benefits of imposing a duty outweigh the social
       costs of imposing a duty. Factors relevant to the determination whether a legal
       duty exists include the relationship of the parties, the foreseeability of the harm,
       the burden on the defendant, and the nature of the risk presented. We have
       recognized, however, that the most important factor to be considered in this
       analysis is the relationship of the parties and also that there can be no duty
       imposed when the harm is not foreseeable. In other words, before a duty can be
       imposed, there must be a relationship between the parties and the harm must have
       been foreseeable. If either of these two factors is lacking, then it is unnecessary to
       consider any of the remaining factors. [Id. at 661 (citations and quotation marks
       omitted).]

“Frequently, the first component examined by the court is the foreseeability of the risk.”
Buczkowski v McKay, 441 Mich 96, 101; 490 NW2d 330 (1992).

                                     A. FORESEEABILITY

       Plaintiff argues that there is a genuine issue of material fact as to whether Virginia’s
injury was foreseeable. Considering the facts in the light most favorable to plaintiff, defendants
did not, under the circumstances of this case, have a duty to prevent the injuries suffered by
Virginia because Virginia’s injury was not foreseeable.

        Whether an injury is foreseeable “depends upon whether a reasonable person ‘could
anticipate that a given event might occur under certain conditions.’ ” Composto v Albrecht, __
Mich App __, __; __ NW2d __ (2019) (Docket No. 340485); slip op at 4 (citations and quotation
marks omitted). Foreseeability is a question of fact, requiring an objective test that focuses on
“what risks the reasonable participant, under the circumstances, would have foreseen.” Id. The
proper inquiry is “whether it was foreseeable that a defendant’s conduct may create a risk of
harm to another person and whether the result of that conduct . . . was foreseeable.” Johnson v

                                                -4-
A&M Custom Built Homes of West Bloomfield, LPC, 261 Mich App 719, 725; 683 NW2d 229
(2004). The factual circumstances of the case—i.e., the parties’ relationship to each other—
define the risk. Bertin v Mann, 502 Mich 603, 620; 918 NW2d 707 (2018).

        When Virginia walked outside in the morning hours on December 15, 2013, she did so
wearing only her nightgown. Because Virginia walked outside without her keys and the side-
exterior doors lock automatically, Virginia was unable to get back inside Independence Village.
After being outside for approximately 14 minutes, Virginia suffered from hypothermia and
frostbite—injuries that contributed to her death. Thus, the question is whether there is a genuine
issue of material fact as to whether it was reasonably foreseeable that a resident living in the
Independent section of Independence Village would suffer from life-threatening injuries because
he or she is unable to reenter Independence Village after walking outside a side-exterior door in
the early morning hours in December. The focus is on what risks a reasonable person, under the
circumstances, would have foreseen. Id.

        Plaintiff argues that Virginia’s injuries were reasonably foreseeable because defendants
operate a residential facility for seniors, who are at a higher risk of elopement and diminished
mental capabilities. Plaintiff asserts that it was impossible for defendants to not know that their
residents required additional care and supervision. Independence Village is an independent
senior-living facility; it is not an assisted-living facility. As a resident of the Independent section
of Independence Village, Virginia was entitled to a continental breakfast and dinner, biweekly
housekeeping, and laundry for linens. Because residents of Independent were presumed to be
capable of living independently, there was no need to monitor all of the side-exterior exits to the
building.

        Plaintiff claims that defendants were aware or should have been aware that Virginia
suffered a diminished mental state and was likely to wander outside in the manner that she did.
An employee of Independence Village put Rowland in contact with Senior Home Care Services
because Virginia required additional services, specifically, assistance with her medication. After
Virginia’s contract with Senior Home Care Solutions was terminated, an Independence Village
employee put Rowland in contact with Jones for additional assistance. The fact that an
Independence Village employee connected Virginia with independent caregivers shows that
defendants were at least aware that Virginia was in a more fragile state. The third-party
caregivers also helped Virginia take her dementia medication. Additionally, Virginia was asked
to eat her meals in the Harbors dining area because she was exhibiting disruptive behavior, but
eventually ate all of her meals in her apartment. There were also a few incidents when Jones was
called to escort Virginia back to her apartment because Virginia had wandered into the lobby
wearing only her nightgown. However, there is no evidence that shows that defendants were
specifically aware of Virginia’s dementia or declining mental health.

        Moreover, defendants had no notice that Virginia might wander outside the building.
When Virginia first moved into Independence Village, she moved into Independent rather than
Harbors because she did not require the intensive care that most of the individuals in Harbors
needed. Plaintiff provides no evidence that Virginia or anyone in Virginia’s family informed an
Independence Village employee that Virginia’s mental state had deteriorated or to what level it
deteriorated since she moved in. Jones testified that she reports to the family of her clients and
does not discuss her clients with anyone at Independence Village. The evidence shows that

                                                 -5-
defendants were not involved in the personal care of the residents and unlikely to know that a
resident’s mental state placed them at risk of elopement. Even though Virginia’s health had
deteriorated, her family found it unforeseeable that Virginia would wander outside in only her
nightgown on a December morning. Rowland and Christian Carter Kermath, Virginia’s son,
both testified that they never expected Virginia to wander outside like she did. Although the
circumstances of this case are unfortunate, the trial court did not err in concluding that Virginia’s
harm was not foreseeable, and thus no genuine issue of material fact remained on the issue of
foreseeability.

                                  B. SPECIAL RELATIONSHIP

        Plaintiff next argues that defendants had a duty to exercise due care and caution by
monitoring its residents and ensuring that its residents do not exit Independence Village without
a way to reenter. Plaintiff alleges “negligence through nonfeasance, which is passive inaction or
the failure to actively protect others from harm.” Chelik v Capitol Transp, LLC, 313 Mich App
83, 91; 880 NW2d 350 (2015). While there is no general duty to aid or protect another, a special
relationship giving rise to a duty exists when one person entrusts herself “ ‘to the control and
protection of another, with a consequent loss of control to protect himself.’ ” Hill, 492 Mich at
666, quoting Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418 NW2d 381
(1988).

        Plaintiff argues that a special relationship existed between defendants and Virginia
because Virginia entrusted herself to defendants’ control and protection by moving into
Independence Village.2 Plaintiff’s argument fails because Virginia never relinquished control
over her own safety to defendants. Independence Village is not a nursing home; it is a residential
facility for seniors who wish to live independently, but with some assistance. Virginia was
entitled to a limited number of services as a resident of the Independent. Independence Village
did not offer any other services to Independent residents. Plaintiff presents no evidence that
there was any other understanding with respect to the services and care that Independence
Village provided. Both Virginia and Rowland understood that, if Virginia required additional
care, a third-party contractor would have to provide it. In fact, that is what Virginia did.
Virginia contracted with Senior Home Care Solutions to provide assistance with medication and
then with Jones to provide Virginia with medication assistance, bathing, dressing, and
notifications of community activities. Thus, at no point did Virginia relinquish control to
defendants.

        Plaintiff claims that there is a genuine issue of material fact as to whether Virginia could
freely leave Independence Village. Indeed, a receptionist at Independence Village conducted
daily wellness checks for all Independent residents to ensure that everyone was accounted for.


2
  A special relationship generally exists between a landlord and its tenants, and thus, a landlord
owes a duty “to maintain the physical premises over which they exercise control.” Bailey v
Schaaf, 494 Mich 595, 604; 835 NW2d 413 (2013), citing Williams, 429 Mich at 499-500.
Plaintiff does not claim that Virginia’s special relationship with defendants arose from a
landlord-tenant relationship.


                                                -6-
Beyond the wellness checks, plaintiff presents no other evidence demonstrating that defendants
restricted Virginia’s ability to come and go from Independence Village. According to Jones, a
number of residents in Independent still drive and regularly leave Independence. There is no
evidence that residents were prohibited from leaving Independence Village or were required to
obtain permission before leaving. Both Rowland and Christian testified that Virginia could come
and go from Independence Village as she pleased. Virginia left Independence Village nearly
every Sunday to visit Rowland’s home. The evidence shows that it was Virginia’s family, not
defendants, who sought to prevent Virginia from leaving Independence Village in light of
Virginia’s physical and mental condition. And although there is evidence that Virginia
occasionally required an escort back to her room because she wandered into a particular area of
Independence Village, such evidence does not show that Virginia was ever physically prevented
from leaving Independence Village.

        Plaintiff provides no evidence demonstrating that Virginia entrusted herself to defendants
control and protection, or that Virginia relinquished any control to protect herself. Accordingly,
there is no genuine issue of material fact as to whether a special relationship between defendants
and Virginia existed. Even if a special relationship between defendants and Virginia existed,
defendants did not have a duty to protect Virginia from an unforeseeable risk. Thus, even if this
Court were to decide that Independence Village had a special relationship with their residents,
there still would be no duty because it was not foreseeable that Virginia would wander outside at
night in December, wearing just her nightgown and without her keys. Because there is no
genuine issue of material fact regarding the foreseeability of Virginia’s harm or the existence of
a special relationship, “it is unnecessary to consider any of the remaining factors.” Hill, 492
Mich at 661 (citations and quotation marks omitted). Defendants did not owe Virginia a
common-law duty of care to monitor all of the side-exterior exits. Summary disposition in favor
of defendants was appropriate.

       Affirmed.

                                                            /s/ Michael J. Riordan
                                                            /s/ David H. Sawyer
                                                            /s/ Kathleen Jansen




                                               -7-
