Michigan Court of Appeals; Docket # 347206; Unpublished
Judges Gadola, Cavanagh, and Kelly; Per curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
In this unanimous unpublished per curiam decision, the Court of Appeals affirmed the trial court’s summary disposition order dismissing the plaintiff’s third-party claim against defendant for negligence. Plaintiff, Richard Albert Bearss, alleged that Defendant, David Fazzini, acted negligently by texting and calling an individual whom he knew was driving, who subsequently crashed into Bearss while Bearss was stopped at an intersection on his motorcycle. The Court of Appeals held that Bearss’s claim failed as a matter of law because he failed to establish that Fazzini owed a duty to him.
Bearss was stopped at an intersection on his motorcycle when he was struck by a motor vehicle driven by Dana Pangori. Pangori was texting with, and talking on her cell phone to, Fazzini at the time of the collision, and Bearss subsequently filed the underlying third-party action against Fazzini, arguing that Fazzini had a duty to act with reasonable care, which he breached by texting and calling, and therefore distracting, Pangori. The trial court ultimately granted summary disposition in favor of Fazzini, holding that Bearss’s claim failed because he failed to establish any relationship between either himself and Fazzini or Fazzini and Pangori that would impose a duty upon Fazzini.
The Court of Appeals affirmed the trial court’s summary disposition order, noting that “a duty to use reasonable care may rise when a person has a special relationship either with the person causing the injury or the victim.” Here, Bearss failed to allege that he had a special relationship with Fazzini, or that Fazzini had a special relationship with Pangori, such as would give rise to a duty. Furthermore, the Court held that a duty is not created “for the sender of a message when the recipient of the message chooses to read the message or to respond to the message while undertaking an activity that might be rendered dangerous if not given the recipient’s full attention, such as driving.”
By contrast, this case does not involve the obligations of the passenger in an automobile; in fact, it has little to do with automobiles. Instead, the issue in this case involves the obligations, if any, of the sender of a message. Specifically, the question in this case is whether a duty is created for the sender of a message when the recipient of the message chooses to read the message or to respond to the message while undertaking an activity that might be rendered dangerous if not given the recipient’s full attention, such as driving. The inquiry would be the same regardless of the means used to send the message and regardless of the activity being undertaken by the recipient. For example, does the person who sends a letter through the mail undertake a duty if the recipient of the letter chooses to read the letter while driving? Does the person who sends a text message undertake a duty if the recipient chooses to read the message while operating a power saw? In such scenarios, the sender of a message does not control when and under what circumstances the recipient of the message reads or responds to the message. Moreover, characterizing defendant in this case as an “electronic passenger” in Pangori’s car would mean that the sender of a letter that a recipient reads while driving is a “paper passenger.” We need not go down that path, however, because Hetterle addressed the obligations of a passenger in a vehicle, and this case does not.