            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ESTATE OF MARTEL ROBERTSON, by                                     UNPUBLISHED
LEOLA ROBERTSON, Personal Representative,                          January 22, 2019

               Plaintiff-Appellee,

v                                                                  No. 337961
                                                                   Wayne Circuit Court
LADARIUS DEANGELO JOHNSON,                                         LC No. 15-010455-NI

               Defendant,

and

U-HAUL CO. OF MICHIGAN, also known as
2013 U-HAUL TITLING 1, LLC,

               Defendant-Appellant.


Before: M. J. KELLY, P.J., and METER and O’BRIEN, JJ.

O’BRIEN J. (dissenting)

        The majority believes that plaintiff is asserting a claim for “negligent leasing under MCL
257.401(3),” and holds that such a claim is permissible. I cannot agree. Plaintiff expressly
disavowed that she is asserting a claim under MCL 257.401(3), and she repeatedly stressed that
she is asserting a claim for common-law negligence. Because plaintiff cannot establish a duty
that U-Haul owed Martel Robertson aside from its duty under a negligent-entrustment theory, I
would hold that her claim fails as a matter of law. For these reasons, I respectfully dissent.

         In plaintiff’s brief on appeal, she states, “Ms. Robertson is not contending that MCL
257.401(3) creates a cause of action against U-Haul for the negligence of its agents committed
during the [course] of a rental agreement.” There is no other way to read this statement: contrary
to the majority’s opinion, plaintiff is not asserting a claim under MCL 257.401(3). Instead,
plaintiff is asserting a claim for ordinary negligence undertaken by the lessor during the course
of its lease. She makes this abundantly clear throughout her brief:
      “Instead, plaintiff argued that U-Haul was liable on a claim of ordinary negligence
       associated with the renting of its vehicle.”

      “What Ms. Robertson argued, instead, is that U-Haul could be found liable for the
       negligence of its agents under fundamental principles of Michigan common law.”

      “U-Haul completely fails to explain why it should be found immune from a claim of
       ordinary negligence under the facts of this case.”

      “Nor is there a Michigan case that establishes that a leasor [sic] of a vehicle is somehow
       immune from a claim of ordinary negligence as U-Haul appears to claim in this appeal.”

        After stating that she is not contending that MCL 257.401(3) creates a cause of action,
plaintiff explains that her reason for citing MCL 257.401(3) is to support that she has a claim
against U-Haul under a theory of common-law negligence:

       Ms. Robertson is not contending that MCL 257.401(3) creates a cause of action
       against U-Haul for the negligence of its agents committed during the [course] of a
       rental agreement. What she is arguing, instead, is that MCL 257.401(3)
       recognizes the existence of such a claim of negligence. Since U-Haul is of the
       view that this Court should adopt a rule of law holding that it cannot be sued for
       negligence “in the leasing of a [motor] vehicle,” MCL 257.401(3) is significant
       for the common-law right that it recognizes, not for any cause of action that it
       purportedly creates. [Some emphasis added.]

Thus, plaintiff is clear that her reference to MCL 257.401(3) is to show that it recognizes a cause
of action for common-law negligence against a lessor; she is not contending that it creates a
cause of action. And in this respect, I agree with plaintiff.

       MCL 257.401(3) provides as follows:

       Notwithstanding subsection (1), a person engaged in the business of leasing motor
       vehicles who is the lessor of a motor vehicle under a lease providing for the use of
       the motor vehicle by the lessee for a period of 30 days or less is liable for an
       injury caused by the negligent operation of the leased motor vehicle only if the
       injury occurred while the leased motor vehicle was being operated by an
       authorized driver under the lease agreement or by the lessee’s spouse, father,
       mother, brother, sister, son, daughter, or other immediate family member. Unless
       the lessor, or his or her agent, was negligent in the leasing of the motor vehicle,
       the lessor’s liability under this subsection is limited to $20,000.00 because of
       bodily injury to or death of 1 person in any 1 accident and $40,000.00 because of
       bodily injury to or death of 2 or more persons in any 1 accident. [Emphasis
       added.]

I disagree with the majority that the italicized portion of MCL 257.401(3) creates a cause of
action. Before this statute was passed, a lessor of a motor vehicle was liable for negligence when
leasing the motor vehicle. Indeed, the statute was passed because lessors of motor vehicles were

                                                -2-
too liable when leasing their motor vehicles. See DeHart v Joe Lunghamer Chevrolet, Inc, 239
Mich App 181, 189; 607 NW2d 417 (1999) (explaining that “the legislative intent in enacting
MCL 257.401(3) [was] to lessen the extraordinary losses to which (short-term) lessors were
being subjected when they had no control over the vehicle after it was leased”). All that the
exception in MCL 257.401(3) does is recognize that a lessor can still be liable for ordinary
negligence—like lessors could be before the statute was passed—“in the leasing of a motor
vehicle.”

        Any other interpretation of MCL 257.401(3) runs against the clear intent of the
Legislature. MCL 257.401(5) states that MCL 257.401(3) “shall not be construed to expand or
reduce, except as otherwise provided by this act, the liability of a person engaged in the business
of leasing motor vehicles . . . .” (Emphasis added.) Yet the majority does just that. The majority
states that “by not limiting damages arising from negligent leasing”—presumably referring to the
language in MCL 257.401(3) that “[u]nless the lessor, or his or her agent, was negligent in the
leasing of the motor vehicle”—“the Legislature signaled its recognition that negligence in the
leasing process was one area where the general public needed additional protection.”1 It then
takes this purpose and holds that it establishes that U-Haul owed a duty to Martel. In so doing,
the majority construes MCL 257.401(3) to expand the liability of lessors of motor vehicles in a
way that is not provided in the act, which is in direct contradiction of the plain language of MCL
257.401(5).

      As MCL 257.401(3) does not create a cause of action, the question on appeal is whether
U-Haul owed plaintiff a duty under common-law negligence.2

        “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[.]” Hill v
Sears, Roebuck & Co, 492 Mich 651, 660-661; 822 NW2d 190 (2012).



1
  I do not comprehend how the Legislature’s statement in MCL 257.401(3) “signaled” anything
other than that the limits discussed in the second sentence of MCL 257.401(3) do not apply if a
lessor is “negligent in the leasing of the motor vehicle.” See Kar v Nanda, 291 Mich App 284,
291; 805 NW2d 609 (2011) (explaining that “it is well-settled that the Legislature is presumed to
mean what it says in a statute”); Book-Gilbert v Greenleaf, 302 Mich App 538, 542; 840 NW2d
743 (2013) (“The courts may not read into the statute a requirement that the Legislature has seen
fit to omit”).
2
  Notably, plaintiff only argues on appeal that U-Haul owed Martel a common-law duty.
Plaintiff has never argued—either in the trial court or on appeal—that U-Haul owed a duty to
plaintiff arising under MCL 257.401(3). By failing to do so, plaintiff has waived the argument.
See Walters v Nadell, 481 Mich 377, 387-388; 751 NW2d 431 (2008) (explaining that issues that
are not raised in the trial court are waived for appellate review). Without any explanation, the
majority premises its holding on an issue that has clearly been waived. Even more troubling, as
plaintiff has never made the statutory-duty argument relied on by the majority, U-Haul has never
had an opportunity to respond to that argument. This is fundamentally unfair to U-Haul.


                                                -3-
        Plaintiff does not point to any statute or contractual relationship giving rise to U-Haul’s
duty to the general public. Instead, plaintiff argues that U-Haul was negligent based on the
following common-law rule stated in Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755
(1967):

                Actionable negligence presupposes the existence of a legal relationship
       between parties by which the injured party is owed a duty by the other, and such
       duty must be imposed by law. The duty may arise specifically by mandate of
       statute, or it may arise generally by operation of law under application of the basic
       rule of the common law, which imposes on every person engaged in the
       prosecution of any undertaking an obligation to use due care, or to so govern his
       actions as not to unreasonably endanger the person or property of others. This
       rule of the common law arises out of the concept that every person is under the
       general duty to so act, or to use that which he controls, as not to injure another.

Relying on this passage, and without any further explanation, plaintiff concludes that “[s]ince
U-Haul’s agents were engaged in an undertaking associated with the rental of the pick-up truck,
they owed a duty of due care ‘to so govern [their] actions as not to unreasonably endanger the
person or property of others.’ ”

        But this broad interpretation of Clark was squarely rejected by our Supreme Court in In
re Certified Question from Fourteenth Dist Court of Appeals of Texas, 479 Mich 498; 740 NW2d
206, 212 (2007). There, our Supreme Court explained:

       Plaintiffs and Justice CAVANAGH rely on the following two statements found in
       Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967): “duty . . . may arise
       generally by operation of law under application of the basic rule of the common
       law, which imposes on every person engaged in the prosecution of any
       undertaking an obligation to use due care, or to so govern his actions as not to
       unreasonably endanger the person or property of others” and “every person is
       under the general duty to so act, or to use that which he controls, as not to injure
       another.” However, they read these statements out of context. First, these
       statements immediately follow the statement that “[a]ctionable negligence
       presupposes the existence of a legal relationship between parties by which the
       injured party is owed a duty by the other, and such duty must be imposed by law.”
       Id. at 260-261. Although Justice CAVANAGH quotes this sentence, he fails to give
       it any meaning. Second, the Court subsequently addressed whether a relationship
       existed between the parties before it concluded that a duty was owed. Therefore,
       contrary to plaintiffs’ and Justice CAVANAGH’s suggestion, Clark does not stand
       for the proposition that everybody owes a duty to everybody else. [In re Certified
       Question, 479 Mich at 509 n 10 (emphasis added).]

Like in In re Certified Question, plaintiff here relies on Clark for the wrongful proposition that
U-Haul owed a duty to everyone—even if U-Haul did not have any legal relationship to them—
because U-Haul undertook an act. Compare Moning v Alfono, 400 Mich 425, 438-439; 254
NW2d 759 (1977), citing Clark, 379 Mich at 260 (“Duty is essentially a question of whether the
relationship between the actor and the injured person gives rise to any legal obligation on the

                                                -4-
actor’s part for the benefit of the injured person.”) (Emphasis added.) The inquiry into whether a
duty exists is not so simple.

        The proper test that courts are to employ before finding a duty was summarized in In re
Certified Question, 479 Mich at 508-509, as follows:

       [I]n determining whether a defendant owes a duty to a plaintiff, competing policy
       factors must be considered. Such considerations include the relationship of the
       parties, the foreseeability of the harm, the burden that would be imposed on the
       defendant, and the nature of the risk presented. Where there is no relationship
       between the parties, no duty can be imposed, but where there is a relationship, the
       other factors must be considered to determine whether a duty should be imposed.

Applying this test, I would conclude that U-Haul did not have a relationship with Martel.
Indeed, no one appears to contend otherwise. The only question is whether U-Haul had a
relationship to the general public giving rise to a duty to Martel. I would conclude that U-Haul
did not.

        This is not to say that U-Haul was under no duty to the general public when it rented a
motor vehicle; an owner or lender of a motor vehicle has a common-law duty “to refrain from
placing it in the hands of a known unfit or incompetent driver for operation on our public
highways.” Perin v Peuler, 373 Mich 531, 535; 130 NW2d 4 (1964), overruled on other grounds
by McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999). In other words, U-Haul owed a
duty to the public under a negligent-entrustment theory. But this was U-Haul’s only recognized
duty to the general public; there is no statute, contractual relationship, or common-law rule
giving rise to a different duty U-Haul owed to the general public, or to Martel, under these facts.
See Hill, 492 Mich at 660-661. Thus, either plaintiff is asserting a claim for negligent
entrustment—which she admits she cannot sustain—or her claim fails as a matter of law because
U-Haul had no relationship to the general public giving rise to a duty to Martel, see In re
Certified Question, 479 Mich at 508-509, other than the duty imposed under a
negligent-entrustment theory, see Perin, 373 at 535. Either way, summary disposition should be
granted to U-Haul.

       For these reasons, I respectfully dissent.



                                                            /s/ Colleen A. O’Brien




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