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03/15/93 ANDREW MARCELLETTI v. VALERIE LUX AND

March 15, 1993

ANDREW MARCELLETTI, BY AND THROUGH HIS NEXT FRIEND, FRANK MARCELLETTI, FRANK MARCELLETTI, AND CINDY MARCELLETTI, PLAINTIFFS-APPELLANTS,
v.
VALERIE LUX AND WILLIAM LUX, DEFENDANTS, AND JAY BATHANI, M.D., DEFENDANT-APPELLEE.



Griffin, P.j., and Neff and Corrigan, JJ. Griffin, P.j., concurred. Neff, J. Concurring.

The opinion of the court was delivered by: Corrigan

In this negligence action, plaintiffs appeal the grant of summary Disposition to defendant Bathani pursuant to MCR 2.116(C)(8). We affirm.

In August 1988, plaintiffs hired defendant Valerie Lux to baby-sit for their infant son Andrew. While in Lux's care, Andrew was allegedly severely injured, displaying symptoms of "shaken baby syndrome." Plaintiffs sued the baby-sitter for negligence. The complaint further alleged that Dr. Bathani previously had treated an unidentified child whom Lux had allegedly abused and that Bathani suspected but failed to report Lux's abuse of that child, *fn1 contrary to § 3 of the Child Protection Law, MCL 722.623(1); MSA 25.248(3)(1), with the following result:

The legal protections for children contained within [MCL 722.628(8);] MSA 25.248(8) et sec. did not come into place and as a result there was not an investigation as to Defendant Lux, and Defendant Lux continued to baby-sit as a licensed babysitter in the State of Michigan and the Plaintiffs Marcelletti's were not able to be warned that Defendant Lux had been suspected of child abuse and as a result the Plaintiff Andrew Marcelletti in August, 1988 was severely injured as described aforesaid.

Plaintiffs also alleged that Bathani negligently failed to report suspected child abuse "as required by the common law."

Bathani sought summary Disposition on grounds that he owed no legal duty to plaintiffs. The lower court ruled:

In the instant action, there existed no relationship between Dr. Bathani and the Marcellettis nor was there a relationship between Dr. Bathani and defendant Lux. The parties have presented no evidence showing any relation between Dr. Bathani and defendant Lux. Alleging that Dr. Bathani examined another child who exhibited battered child symptoms and allegedly did not report this, in and of itself does not create a special relationship which the Court will recognize. Dr. Bathani did not have a relationship with the third-party victim nor with the so-called "dangerous person," defendant Lux.

A motion under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. Michigan Ins Repair Co, Inc v Manufacturers Nat'l Bank of Detroit, 194 Mich App 668, 673; 487 NW2d 517 (1992). All factual allegations in support of the claims are accepted as true, as well as any reasonable inferences or Conclusions that can be drawn from the facts. Id. The motion should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Wade v Dep't of Corrections, 439 Mich 158, 163; 483 NW2d 26 (1992).

In a cause of action arising from a tortious injury, there are four elements: (1) the defendant must have owed a legal duty to the plaintiff; (2) the defendant must have breached the duty owed; (3) there must have been a proximate causal relationship between the breach of such duty and the injury to the plaintiff; and (4) the plaintiff must have suffered damages. Lorencz v Ford Motor Co, 439 Mich 370, 375; 483 NW2d 844 (1992). "A negligence action may only be maintained if a legal duty exists which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm." Riddle v McLouth Steel Products Corp, 440 Mich 85, 96; 485 NW2d 676 (1992). Duty, a threshold issue, must be decided by the court as a matter of law. Id. at 95.

I. STATUTORY DUTY

Nothing in the Child Protection Law modifies the plaintiffs' burden to prove the existence of a legal duty. Plaintiffs assert that Dr. Bathani had a statutory duty pursuant to the Child Protection Law, MCL 722.621 et seq. ; MSA 25.248(1) et seq., to report the abuse of the unidentified child and that his failure to report the prior incident of abuse proximately cause Andrew's injuries.

MCL 722.623(1); MSA 25.248(3)(1) provides in part:

A physician . . . who has reasonable cause to suspect child abuse or neglect shall make immediately, by telephone or otherwise, an oral report, or cause an oral report to be made, of suspected child abuse or neglect to the department. Within 72 hours after making the oral report, the reporting person shall file a written report as required in this act.

In addition, MCL 722.633(1); MSA 25.248(13)(1) provides:

A person, required to report an instance of suspected child abuse or neglect, who is required to report under this act and who failed to do so, is civilly liable for the damages proximately caused by the failure. [Emphasis supplied.]

We agree with the circuit court's Conclusion that the Legislature intended that liability under the statute be limited to claims for damages by the identified ...


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