                            STATE OF MICHIGAN

                            COURT OF APPEALS



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


Before: BOONSTRA, P.J., and SAAD and HOEKSTRA, JJ.

SAAD, J.

                                   I. NATURE OF THE CASE

        After plaintiff broke his arm in a fall and after defendant Sparrow Hospital1 administered
medical treatment, Sparrow advised plaintiff that it could do no more for him, recommended that
he see a specialist the next day, and discharged plaintiff from the hospital. Though plaintiff
preferred to stay the night at the hospital, a doctor advised him that the hospital facilities could
not be used for mere overnight rest and therefore a cab was called 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 driver 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. Plaintiff 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 common-law duty to assist plaintiff
with his transportation after Sparrow discharged him from the hospital. 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 defendant at issue in this appeal.


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plaintiff’s proofs, the trial court granted Sparrow’s motion for directed verdict on the grounds
that Sparrow has no common-law duty to assist a discharged patient, such as plaintiff, with
transportation from the hospital and that, were the court to find such a duty, there was no
evidence that Sparrow’s alleged breach 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 discharged patient with transportation. 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 were caused by Sparrow.

                                        II. BASIC FACTS

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

         It was near midnight by the time plaintiff was admitted into the 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 following day. Plaintiff testified that
he did not want to be discharged because he was tired; he did not want to travel the 20 or 25
minutes to his hotel and preferred to sleep at the hospital. The doctor responded that the hospital
could not use a bed as a place to spend the night and ultimately discharged plaintiff at 5:55 a.m.
The medical records show that the doctor’s decision to discharge plaintiff was based on the
following findings: plaintiff’s condition had improved, plaintiff’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 assessment” and, after watching plaintiff
stand up by himself and walk across the room, concluded that plaintiff passed the assessment.
When discharged, plaintiff was offered a wheelchair, which he used.

        A technician in the emergency department pushed plaintiff in the wheelchair to the
emergency room waiting area and then left. Soon thereafter, the cab driver arrived and pushed
plaintiff to the vehicle. Plaintiff was concerned with the driver’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 driver if the wheelchair was locked, and
the driver replied that “Yeah, it’s locked” and “I got you.” With the assistance of the driver,
plaintiff pushed himself to a standing position, but he immediately felt wobbly and went back to
sit down. But plaintiff felt that the chair was no longer in place because the driver had already
moved it away, so instead of falling back, plaintiff pushed himself into the front of the vehicle
and fell into the passenger compartment’s foot well on his right side. This latest fall resulted in
injuries to plaintiff’s right elbow. X-rays taken later that day revealed that plaintiff’s right elbow
was now broken and his left arm had the 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 to his home in New Jersey, plaintiff

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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 therapy to focus on the more severely
injured left arm. After the therapy on the right arm, plaintiff was able to do “normal” things with
it, but he nevertheless could not work anymore because of his inability to use his left arm.

        In his suit, plaintiff alleged negligence on the part of Sparrow 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 discharged patient into a waiting vehicle.
Second, Sparrow argued that plaintiff failed to present any evidence of causation. Specifically,
the evidence indicated that plaintiff could no longer work because he could no longer use his left
arm and elbow. But Sparrow claimed that plaintiff never produced 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 based on a lack of causation evidence.

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

                                          III. ANALYSIS

      On appeal, plaintiff’s sole argument is that the trial court erred in its determination that
Sparrow did not have a duty to assist plaintiff into the taxi cab. We disagree.

        In a negligence analysis, the question of whether a duty exists is a question of law that we
review de novo. Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162; 809
NW2d 553 (2011). Additionally, decisions on a motion for directed 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, the evidence and all legitimate
inferences are reviewed in the light most favorable to the nonmoving party. Id. Such a motion
“should be granted only if the evidence viewed in this light fails to establish a claim as a matter
of law.” Id.

              To establish a prima facie case of negligence, a plaintiff must prove the
       following elements: (1) the defendant owed the plaintiff a legal duty, (2) the
       defendant breached the legal duty, (3) the plaintiff suffered damages, and (4) the
       defendant’s breach was a proximate cause of the plaintiff’s damages. [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 particular standard of conduct in order
to protect others against unreasonable risks of harm.” Riddle v McLouth Steel Products Corp,

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440 Mich 85, 96; 485 NW2d 676 (1992) (emphasis 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 another.”) (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 the balancing of interests and
societal costs and prudence calls for consistency in application, this is a question of law, which
courts, not juries decide. See In re Certified Question from Fourteenth 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 precedents which make up the law; and it
must be determined only by the court.”). As explained by our Supreme Court,

       Because the ultimate inquiry in determining whether a duty should be imposed
       involves balancing the social benefits of imposing that a duty with the social costs
       of imposing a duty, we cannot decide whether a duty should be imposed without
       assessing the competing policy considerations. We must be concerned with
       whether it is appropriate public policy to impose liability. In fixing the bounds of
       duty, not only logic and science, but policy play an important role. There is a
       responsibility to consider the larger social consequences of the notion of duty and
       to correspondingly tailor that notion so that the illegal consequences 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, and limit the legal
       consequences of wrongs to a controllable 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 produce 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 were legally under any particular duty.

        Factors for a court to consider when considering whether to impose a duty include the
following: “the relationship of the parties, the foreseeability 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 brackets omitted). Although the
relationship of the parties has been described as the most important factor, In re Certified
Question, 479 Mich at 505, the foreseeability of the harm is just as important. 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 two factors is lacking, then it is
unnecessary to consider any of the remaining factors.” Hill, 492 Mich at 661.

       Here, plaintiff asserts that Sparrow was negligent through nonfeasance, which is the
passive inaction or failure to actively protect others from harm, and not misfeasance, which is the
active misconduct causing personal injury. Williams v Cunningham Drug Stores, Inc, 429 Mich

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495, 498; 418 NW2d 381 (1988). That is, plaintiff alleges that Sparrow had a duty to assist or
aid plaintiff but failed to do so. 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 special relationships is based on
control. In each situation one person entrusts himself to the control and protection of another,
with a consequent loss of control to protect himself.” Id. Here, Sparrow had no control over
plaintiff. Sparrow already discharged plaintiff when plaintiff attempted to get into a taxi cab
parked outside the hospital. While Sparrow requested the cab at 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 plaintiff has failed to establish that Sparrow had any duty to act on behalf
of plaintiff at the time plaintiff sustained his injury when he fell into the cab.

        Furthermore, the analysis on the foreseeability factor is fatal 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 that he was “stable.”
Additionally, plaintiff had passed a “fall risk assessment” after 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 from a seated position. In light of
these facts, it was not reasonably foreseeable that plaintiff would injure himself while being
assisted into a cab. Consequently, we hold that Sparrow did not 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 granted a directed verdict.2

        A holding to the contrary would appear to be unprecedented. Plaintiff has failed to
identify any caselaw in Michigan, or any other state, that provides that a hospital has a legal duty
to assist its discharged patients into vehicles, and our research has not uncovered such precedent.
In fact, what caselaw exists directly supports the conclusion that no such duty exists. See, e.g.,
Cameron v New York, 322 NYS2d 562, 566; 37 AD2d 46 (1971) (“[T]he law does not impose
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 hospitals 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 common-law legal duty to assist a discharged 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 misdiagnosis, 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, that would be a medical malpractice

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       Affirmed. Sparrow, as the prevailing party, may tax costs pursuant to MCR 7.219.4



                                                              /s/ Henry William Saad
                                                              /s/ Mark T. Boonstra




claim—not the ordinary negligence claim that is the issue in the instant case. Accordingly, the
fact that plaintiff avers that he was not stable and not able to keep his balance after being
discharged is not relevant for 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 appeal the trial court’s denial of its motion for summary
disposition. Notwithstanding Sparrow’s label to the contrary, this issue is not a “cross-appeal.”
It does not appeal or challenge anything that happened at the trial court. As such, we simply
have treated it as an alternative argument for this Court to rule against plaintiff in his appeal.
However, we decline to deem plaintiff’s appeal waived or abandoned on this basis, especially in
light of the fact that plaintiff did provide a thorough briefing in his reply brief.


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