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STATE OF MICHIGAN
COURT OF APPEALS


MICHAEL R. BYRNES, Plaintiff-Appellant, v CHARLES G. DONNELLY, Defendant-Appellee, and JOSEPH SOLOMON SPUHLER, Defendant.

UNPUBLISHED June 18, 1999

No. 209783 Kalamazoo Circuit Court LC No. 97-001886 NO

Before: Bandstra, C.J., and Hoekstra and R. B. Burns*, JJ. PER CURIAM. Plaintiff appeals by right the trial court's grant of summary disposition in favor of defendant Donnelly. We affirm. Plaintiff was visiting a dorm room on the campus of Western Michigan University ("WMU") when defendant Spuhler attacked him without provocation. Defendant Spuhler attended WMU on a football scholarship and had previously assaulted two other people on campus. Defendant Donnelly served as the associate dean of judicial affairs at WMU. Plaintiff, who was not a student at WMU, essentially argues that Donnelly could have prevented this attack by properly disciplining Spuhler after the first two assaults. The trial court granted defendant Donnelly's motion for summary disposition under MCR 2.116(C)(7) and (8). We review a trial court's grant of summary disposition de novo, Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).

* Former Court of Appeals judge, sitting on the Court of Appeals by assignment. -1

I Plaintiff first argues that Donnelly had a duty to protect him because Donnelly had a special relationship with defendant Spuhler. We disagree. Absent a special relationship or set of circumstances, a person has no duty to aid or protect someone else from a third person's conduct. Murdock v Higgins, 454 Mich 46, 54; 559 NW2d 639 (1997). See also Hakari v Ski Brule, Inc, 230 Mich App 352, 360-361; 584 NW2d 345 (1998). Plaintiff argues that Donnelly, as dean of judicial affairs, knew or should have known that Spuhler's violent tendencies posed a risk to non student visitors at WMU. According to plaintiff, this knowledge, coupled with Donnelly's disciplinary authority, formed the basis for a special relationship between Donnelly and Spuhler, which gave rise to Donnelly's duty to protect plaintiff by suspending or expelling Spuhler. We find plaintiff's argument disingenuous. Michigan courts have not recognized a special relationship between a student on an athletic scholarship and an associate dean of student judicial affairs, and the case law on special relationships makes clear one does not exist here. Plaintiff cites several cases to support his argument that Donnelly had a special relationship with Spuhler. For example, he cites Marcelletti v Bathani, 198 Mich App 655, 664; 500 NW2d 124 (1993), for the proposition one might have a duty to protect someone who is endangered by a third party's conduct if one has a special relationship with that third-party. 1 Although Marcelletti certainly stands for this principle, it also stands for the principle that "the Court will impose a special relationship only where a person's actions directly influence another." Id. at 665. Furthermore, the basis for imposing that duty is one's control over the third-party. Id. at 664. The Marcelletti panel listed the following special relationships that might generate such a duty: landlord-tenant, proprietor-patron, employer-employee, residential invitor-invitee, psychiatrist-patient, doctor-patient, carrier-passenger, and innkeeper-guest. Id. at 664. However, there was no serious allegation of control in this case, and we do not find a dean's relationship to a scholarship athlete at a university to be analogous to the examples listed in Marcelletti. Plaintiff has cited Marcelletti and other cases that appear to support his claim of a special relationship; however, when the passages from each of the cases he cites are read in context, it becomes clear that those cases actually support defendant's argument that Donnelly had no special relationship with Spuhler.2 Because plaintiff failed to allege facts sufficient to satisfy the special-relationship exception, he failed to establish that defendant had a duty to protect him. Consequently, plaintiff failed to state a claim on which relief can be granted and summary disposition pursuant to MCR 2.116(C)(8) was appropriate. Gazette v City of Pontiac (On Remand), 221 Mich App 579, 584; 561 NW2d 879 (1997). II Assuming arguendo that plaintiff could show that Donnelly's relationship with Spuhler gave rise to some sort of duty, plaintiff's claim also fails under Michigan's public-duty doctrine. The doctrine provides: -2

"[t]hat if the duty which the official authority imposes upon an officer is a duty to the public, a failure to perform it, or an inadequate or erroneous performance, must be a public, not an individual injury, and must be redressed, if at all, in some form of public prosecution. On the other hand, if the duty is a duty to the individual, then a neglect to perform it, or to perform it properly, is an individual wrong, and may support an individual action for damages." [White v Beasley, 453 Mich 308, 316; 552 NW2d 1 (1996), quoting 2 Cooley, Torts (4th ed),

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