                          STATE OF MICHIGAN

                             COURT OF APPEALS


GINA MANDUJANO,                                                    UNPUBLISHED
                                                                   April 3, 2018
               Plaintiff-Appellee,

v                                                                  No. 336802
                                                                   Wayne Circuit Court
ANASTASIO GUERRA,                                                  LC No. 15-002472-NI

               Defendant-Appellant,

and

AUTO-OWNERS INSURANCE COMPANY and
HOME-OWNERS INSURANCE COMPANY,

               Defendants.


Before: GLEICHER, P.J., and BOONSTRA and TUKEL, JJ.

PER CURIAM.

        Defendant1 appeals as of right the trial court’s stipulated resolution order and order
denying his motion for summary disposition. Defendant contends on appeal that the trial court
erred in determining that questions of fact existed as to whether he engaged in a mutual bailment
with plaintiff rather than a gratuitous bailment, and that, irrespective of the type of bailment—
and thus irrespective of the duty imposed—defendant is entitled to summary disposition because
no material issues of fact exist to suggest that he breached any duty owed to plaintiff. We affirm.

                                I. FACTUAL BACKGROUND

        This case arises out of a vehicle malfunction that resulted in serious injury to plaintiff.
On or around September 29, 2013, defendant agreed to loan plaintiff his pickup truck so that
plaintiff could go grocery shopping. Plaintiff contends that her use of defendant’s truck was


1
 Hereinafter, “defendant,” singularly, refers only to Anastasio Guerra, who is plaintiff’s father.
The other defendants, Auto-Owners Insurance Company and Home-Owners Insurance
Company, are not part of this appeal.


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conditioned on her providing lunch to defendant. While plaintiff was in the process of leaving
the grocery store in defendant’s truck, the power steering in the truck failed. Plaintiff’s wrist and
fingers were caught in the spokes of the steering wheel, and plaintiff was severely injured.

        Prior to the accident, defendant was aware that his truck was not maintaining power
steering fluid. Defendant attempted to put fluid into the vehicle at least two weeks prior to the
accident and again on the day that plaintiff asked to use the truck. Defendant did tell plaintiff
that there was a problem with the power steering. Defendant did not believe the issue was
dangerous; he believed some power steering fluid leakage was natural in light of the truck’s
advanced age and mileage.

        Plaintiff filed this action on February 26, 2015, alleging that defendant had negligently
allowed plaintiff to borrow the truck knowing that the vehicle was in disrepair and was unsafe to
drive. Defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(8) and
MCR 2.116(C)(10) and argued that plaintiff failed to establish that defendant owed any legal
duty to plaintiff and that if any duty existed, he did not breach it. Plaintiff argued in response
that defendant’s legal obligations arose out of the bailment of defendant’s vehicle to plaintiff and
that he breached that duty by failing, at a minimum, to warn her of the dangers. The trial court
agreed with plaintiff and denied defendant’s motion for summary disposition.

        On appeal, defendant concedes that the loaning of his truck to plaintiff constituted a
gratuitous bailment. Defendant contends that the trial court erred in determining that questions
of fact existed that could give rise to a mutual bailment, and thus a more exacting standard of
care. Defendant also contends that irrespective of the type of bailment and standard of care, the
trial court erred in determining that questions of fact existed that might suggest defendant
breached any duty at all.

                                  II. STANDARD OF REVIEW

       “The trial court’s ruling on a motion for summary disposition is reviewed de novo on
appeal.” ZCD Transp, Inc v State Farm Mut Auto Ins Co, 299 Mich App 336, 339; 830 NW2d
428 (2012). Despite defendant having moved for summary disposition pursuant to MCR
2.116(C)(10) and MCR 2.116(C)(8), it is clear that both parties looked beyond the pleadings in
arguing for and against the motion, and the trial court looked beyond the pleadings in making its
determination. Accordingly, we treat the motion as having been decided pursuant to MCR
2.116(C)(10). Van Buren Twp v Visteon Corp, 319 Mich App 538, 544; 904 NW2d 192 (2017).

        Summary disposition pursuant to MCR 2.116(C)(10) is appropriate where “there is no
genuine issue as to any material fact, and the moving party is entitled to judgment or partial
judgment as a matter of law.” MCR 2.116(C)(10). “There is a genuine issue of material fact
when reasonable minds could differ on an issue after viewing the record in the light most
favorable to the nonmoving party.” BC Tile & Marble Co, Inc v Multi Bldg Co, Inc, 288 Mich
App 576, 582-583; 794 NW2d 76 (2010). In reviewing a motion brought pursuant to MCR
2.116(C)(10), “this Court considers ‘affidavits, pleadings, depositions, admissions, and
documentary evidence filed in the action or submitted by the parties, in a light most favorable to
the party opposing the motion.’ ” Sanders v Perfecting Church, 303 Mich App 1, 4; 840 NW2d


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401 (2013) (citation omitted). The motion is properly granted if there is no genuine issue with
respect to any material fact and the moving party is entitled to judgment as a matter of law. Id.

       Further, “[w]hether a defendant owes a duty to a plaintiff to avoid negligent conduct is a
question of law that is reviewed de novo.” Sherry v East Suburban Football League, 292 Mich
App 23, 29; 807 NW2d 859 (2011); see also Chelik v Capitol Transport, LLC, 313 Mich App 83,
88; 880 NW2d 350 (2015).

                             III. IMPOSITION OF A LEGAL DUTY

       Plaintiff in her complaint alleged that defendant was negligent.2 To succeed in a claim of
negligence, a plaintiff must prove that (1) defendant owed her a legal duty, (2) defendant
breached that duty, (3) plaintiff suffered damages as a result of that breach, and (4) and
defendant’s breach was a proximate cause of plaintiff’s damages. Schultz v Consumer Power
Co, 443 Mich 445, 449; 506 NW2d 175 (1993).

         Defendant concedes that this case “is rooted in bailment law.” Bailments are a form of
express or implied contract. National Ben Franklin Ins Co v Bakhaus Contractors, Inc, 124
Mich App 510, 512 n 2; 335 NW2d 70 (1983), citing 8 Am Jur 2d, Bailments, § 2, p 738, and In
re George L Nadell & Co, Inc, 294 Mich 150, 154; 292 NW 684 (1940). “ ‘Bailment,’ in its
ordinary legal signification, imports the delivery of personal property by one person to another in
trust for a specific purpose, with a contract, express or implied, that the trust shall be faithfully
executed and the property returned or duly accounted for when the special purpose is
accomplished.” Goldman v Phantom Freight, Inc, 162 Mich App 472, 479-480; 413 NW2d 433
(1987). “[I]t is a relationship wherein a person gives to another the temporary use and
possession of property other than money, the latter agreeing to return the property to the former
at a later time.” Id. at 480.

        Importantly, if a bailment relationship exists, standards of care are automatically imputed
on both the bailor and bailee as a product of the bailment relationship. See Godfrey v City of
Flint, 284 Mich 291, 296; 279 NW 516 (1938); see also Jones v Keetch, 388 Mich 164, 168; 200
NW2d 227 (1972) (referencing the duty of a bailor of chattel to ensure that the chattel is
reasonably suitable for its intended purpose lest the bailor be subject to tort liability). Michigan
law classifies bailments as either gratuitous (for the sole benefit of either the bailor or bailee) or
mutual (for the benefit of both parties). See Godfrey, 284 Mich at 295. “Bailment for the benefit
of both parties thereto has been defined as one wherein a person gives to another the temporary




2
  Although Michigan’s no-fault act, MCL 500.3101 et seq., generally immunizes people from
tort liability arising from their ownership, maintenance, or use of a motor vehicle, MCL
500.3135(3), a person remains subject to tort liability for noneconomic loss if the injured person
suffered death, serious impairment of body function, or permanent serious disfigurement, MCL
500.3135(1). Plaintiff alleged in her complaint that her injuries qualify as serious impairment of
body function and/or permanent serious disfigurement.


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use and possession of property, other than money, for a reward, the latter agreeing to return the
same to the former at a future time.” Id. at 295-296 (quotation marks and citation omitted).

        “Where a bailment is purely gratuitous, as where articles are loaned to a bailee for his or
her exclusive benefit without charge, the bailor has a duty to inform the bailee only of those
defects of which the bailor is aware and which might make the use of the bailed property
perilous.” 8A Am Jur 2d, Bailments, § 99; see also Goldman, 162 Mich App at 479 and 63A
Am Jur 2d, Products Liability, § 1152. However, when the bailment is for the mutual benefit of
the parties, the bailor’s duties are expanded. In that situation, a bailor “must make a reasonable
inspection of the bailed property, warn the bailee of any defects in the property about which the
bailor knows, or should know, and otherwise ascertain that the property is safe for its intended
use.” 8A Am Jur 2d, Bailments, § 102; see also Goldman, 162 Mich App at 479.

         Here, defendant argues that loaning his vehicle to plaintiff was a gratuitous bailment and
that the trial court erred when it construed it as a mutual bailment. Conversely, plaintiff argues
that the bailment was mutual because both parties benefited from the arrangement. Specifically,
plaintiff relies on her affidavit that explains that defendant only agreed to loan the vehicle to her
in exchange for plaintiff making him lunch. Defendant claims that the affidavit should not be
considered because it contradicts plaintiff’s prior testimony from her deposition. See Dykes v
William Beaumont Hosp, 246 Mich App 471, 479-480; 633 NW2d 440 (2001) (explaining that a
party cannot rely on an affidavit to create a material issue of fact where the affidavit contradicts
prior deposition testimony). However, after reviewing plaintiff’s deposition, it is evident that her
later affidavit did not contradict her prior testimony. Rather, the topic of whether defendant was
to receive anything in exchange for loaning the vehicle to plaintiff never was explored at her
deposition. Accordingly, the affidavit, just like any other submitted evidence, must be
considered when deciding on a motion of summary disposition. Sanders, 303 Mich App at 4.

       With the evidence presented, a reasonable jury could have concluded that the bailment
was a mutually beneficial one because defendant agreed to loan his vehicle to plaintiff in
exchange for her preparing him lunch. The fact that the lunch had very little monetary value is
of no consequence.3 See Godfrey, 284 Mich at 296 (“In determining whether or not there is a


3
  Defendant contends that, regardless of whether he loaned his truck to plaintiff in exchange for
lunch, a mutual bailment still could not have existed because Michigan law only extends the
concept of mutual bailments to commercial settings. Defendant’s argument is not premised in
articulable law but, rather, a lack of it. Defendant suggests that because there are no examples in
Michigan case law of noncommercial mutual bailments, mutual bailments therefore cannot exist
outside of commercial settings. But despite there being no case law examples of mutual
bailments arising in noncommercial settings, the concept of a bailment and the standard for the
creation of a bailment is clearly defined in Michigan case law. See, e.g., Godfrey 284 Mich at
295-296; Goldman, 162 Mich App at 479-480; Bakhaus, 124 Mich App at 512 n 2. Nowhere in
Michigan law are noncommercial bailments distinguished from commercial bailments, and there
is no indication that such a distinction has ever been contemplated in prior cases. We decline to
impose such a distinction here.


                                                -4-
lucrative bailment, the nature and amount of the compensation are immaterial, as the law will not
inquire into its sufficiency . . . .”) (quotation marks and citation omitted). Therefore, defendant
has failed to prove in his motion for summary disposition that the bailment was a gratuitous one,
and the trial court properly denied defendant’s motion with respect to this issue.4

                                    IV. BREACH OF DUTY

       Finally, defendant contends that regardless of the type of bailment, and thus irrespective
of the standard of care imposed on him, he is entitled to summary disposition because no
material question of fact exists that could allow for a finding that defendant breached any duty.
We disagree.

        Although there is a question of fact on which type of bailment is present here, we need
not address all of the duties imposed under a mutual bailment, which normally we would decide,
because that bailment is more favorable to the nonmoving party, see Sanders, 303 Mich App at 4
(stating that when deciding on a motion for summary disposition, evidence is to be viewed in a
light most favorable to the nonmoving party), because we hold that there is a triable issue
regarding whether defendant fulfilled his duty to warn plaintiff of any known defects or
dangers—a duty that is common to both types of bailments. Here, it is undisputed that defendant
never warned plaintiff about any power steering fluid issue. At best, defendant simply told
plaintiff to be careful while driving, but he did not mention any potential issue or problem with
the vehicle. Hence, the question we must answer is: Was any warning necessary when
defendant thought he had cured the “defect,” i.e., the low level of the power steering fluid. We
believe that a reasonable fact-finder could come to differing answers, which necessarily
precludes the grant of summary disposition. On the one hand, a fact-finder could conclude that
defendant, who recognized that the low amount of steering fluid was a problem, addressed the
problem and therefore did not have to provide any warning because any “defect” was effectively
cured by the addition of more steering fluid. On the other hand, a finder of fact could conclude
that defendant, while arguably curing a symptom of the defect, did not cure the defect, itself, and
therefore should have warned plaintiff that although the vehicle currently had a good amount of
power steering fluid, it nonetheless was losing liquid. Defendant admitted that he knew that
having low power steering liquid in a vehicle could pose a “problem” or safety risk.
Accordingly, one could reasonably find that defendant, with full knowledge that there was an
underlying problem or defect, should have warned plaintiff of that problem or defect. Indeed, if
it would have been reasonable for defendant to monitor the power steering fluid situation and
“top off” as needed,5 then a jury could also conclude that it would have been reasonable for


4
  However, as discussed below, whether the bailment is considered gratuitous or mutually
beneficial is not dispositive for deciding whether defendant is entitled to judgment as a matter of
law.
5
 We note that this course of action is akin to what defendant’s mechanic expert witness said he
would have suggested for defendant to do under these circumstances. Specifically, the expert
would have instructed someone in defendant’s position to “keep an eye” on the situation and that
bringing the vehicle in for repair was not yet necessary.


                                                -5-
anyone to whom he entrusted the car, such as plaintiff, to do so as well. Of course, plaintiff
could not have known to monitor the power steering fluid level, such as by looking for leaks
under the car, unless defendant had told her to do so, which he did not. Under these
circumstances, a fact-finder would be permitted to find that defendant breached a duty to warn,
although a fact-finder would not be compelled to make such a finding.

        Therefore, because there is a question of fact as to whether defendant breached his duty
to warn under bailment law, the trial court properly denied defendant’s motion for summary
disposition.

       Affirmed. Plaintiff, as the prevailing party, may tax costs pursuant to MCR 7.219.



                                                           /s/ Elizabeth L. Gleicher
                                                           /s/ Mark T. Boonstra
                                                           /s/ Jonathan Tukel




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