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STATE OF MICHIGAN
COURT OF APPEALS


ARDIS LELITO, Personal Representative of the Estate of HELEN RICH, Deceased, Plaintiff-Appellant, v SHIRLEY VERNON MONROE, Defendant-Appellee.

FOR PUBLICATION December 28, 2006 9:05 a.m.

No. 270618 Livingston Circuit Court LC No. 05-021609-NO Official Reported Version

Before: Servitto, P.J., and Fitzgerald and Talbot, JJ. PER CURIAM. Plaintiff appeals as of right the trial court's order granting summary disposition in defendant's favor and dismissing plaintiff 's complaint. Because we find that an individual gun owner who leaves a weapon in a location accessible to a convicted felon but has no reason to foresee the felon's misuse of the weapon is not civilly liable for the felon's misuse of the weapon, we affirm. The facts in this matter are straightforward and undisputed. Helen Rich and her boyfriend, Elick Verdulla, moved in with defendant and his wife when Rich fell upon hard times. Defendant owned several firearms, including a black-powder revolver, which he kept in a cabinet in his bedroom. Verdulla was aware of where the revolver was kept and, on a day when defendant and his wife were absent from the home, he retrieved the revolver, and shot and killed Rich. Plaintiff initiated suit against defendant, alleging strict liability and negligence in leaving a loaded firearm in a location known to Verdulla, whom defendant knew to be a convicted felon. Defendant moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that no strict liability applied in this matter, and that defendant was not negligent with respect to plaintiff 's decedent. After oral argument, the trial court granted defendant's motion for summary disposition and dismissed plaintiff 's complaint with prejudice. This Court reviews de novo a trial court's ruling on a motion for summary disposition. Corley v Detroit Bd of Ed, 470 Mich 274, 277; 681 NW2d 342 (2004). A motion made under MCR 2.116(C)(10) tests the factual support for a claim, Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003), and should be granted when there is no genuine issue of material

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fact and the moving party is entitled to judgment as a matter of law, Miller v Purcell, 246 Mich App 244, 246; 631 NW2d 760 (2001). A genuine issue of material fact exists when the record, drawing all reasonable inferences in favor of the nonmoving party, leaves open an issue on which reasonable minds could differ. West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). When deciding a motion for summary disposition under this rule, a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence then filed in the action or submitted by the parties in the light most favorable to the nonmoving party. MCR 2.116(G)(5); Ritchie-Gamester v City of Berkley, 461 Mich 73, 76; 597 NW2d 517 (1999). Plaintiff presents essentially only one argument on appeal--that the foreseeability that felons may misuse firearms, recognized by both Michigan and federal law, creates a duty to take reasonable steps to prevent a loaded firearm from being accessible to a known felon. Whether an individual gun owner who leaves a weapon in a location accessible to a felon may be held civilly liable for the convicted felon's misuse of the weapon appears to be an issue of first impression in Michigan. To establish a prima facie case of negligence, a plaintiff must show (1) that the defendant owed a duty to the plaintiff, (2) that the defendant breached the duty, (3) that the defendant's breach of the duty caused the plaintiff injuries, and (4) that the plaintiff suffered damages. Teufel v Watkins, 267 Mich App 425, 427; 705 NW2d 164 (2005). "Duty" is defined as the legal obligation to conform to a specific standard of conduct in order to protect others from unreasonable risks of injury. Burnett v Bruner, 247 Mich App 365, 368; 636 NW2d 773 (2001). "In deciding whether a duty should be imposed, the court must look at several factors, including the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented." Hakari v Ski Brule Inc, 230 Mich App 352, 359; 584 NW2d 345 (1998). There can be no actionable negligence if no duty exists. Id. The threshold issue of whether a duty exists is determined by the court as a matter of law. Graves v Warner Bros, 253 Mich App 486, 492; 656 NW2d 195 (2002). It is axiomatic that, in general, there is no legal duty obligating one person to aid or protect another, and in particular, "an individual has no duty to protect another from the criminal acts of a third party in the absence of a special relationship between the defendant and the plaintiff or the defendant and the third party." Graves, supra at 493. This is because "[c]riminal activity, by its deviant nature, is normally unforeseeable." Papadimas v Mykonos Lounge, 176 Mich App 40, 46-47; 439 NW2d 280 (1989). However, our Supreme Court has noted, "'Even criminal conduct by others is often reasonably to be anticipated.'" Moning v Alfono, 400 Mich 425, 442 n 16; 254 NW2d 759 (1977), quoting 2 Restatement Torts, 2d,

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