Flynn v. Libkie

M. J. Kelly, J. Defendant appeals by leave granted the circuit court’s affirmance of a district court judgment, which found the defendant liable in damages for his negligent care of the plaintiffs impounded automobile. On September 19, 1977, defendant accepted plaintiff’s 1968 Chevrolet Camaro for storage after local police impounded it for displaying improper license plates. The car was towed to defendant’s service station in the rural town of Capac, Michigan, where it was parked adjacent to the station in an area which was lighted at night. The doors — 334 — were locked, and the key was placed on a rack inside the service station. There was no fence around plaintiff’s vehicle, and the station was unattended between 6 p.m. and 8 a.m. each day. Periodically thereafter, plaintiff stopped at the defendant’s station to check on the condition of his car. On October 4, 1977, plaintiff asked defendant where his car was, it not being visible on defendant’s premises. Defendant could only respond that he had last seen the car at 6 p.m. on October 3, 1977, when he closed the station. At the time of trial in August, 1978, Michigan State Police records indicated the car had been stolen, a theory agreed to by the parties. Plaintiff filed suit against defendant, demanding return of his car or damages in the amount of $1,500. In a bench trial, the district court found defendant negligent in storing the automobile and awarded plaintiff $950 in damages. Specifically, the district court found that the defendant’s efforts to protect vehicles in his control did not meet the judicially noticed standard of care for garage owners in the City of Port Huron. The court found the Port Huron standard of care applicable to defendant’s business despite the rural character of the area surrounding Capac: "The Court: Here is what I have to say about it: One, this man owned the car. Two, common law bailment, there is no doubt in my mind there was a bailment. The defendant wouldn’t have returned the car to him unless he got paid, he is not running a public charity. "There [sic] question is was there negligence? I believe there was. The standard practice here in Port Huron is they lock them up in the yard. I know a lot of places where they take these cars, if they don’t have a yard, they chain the thing up if nobody is around; they put a chain through the wheels and around the axle; they do not leave the car unprotected. — 335 — "I find for the plaintiff and give him a judgment for nine hundred and fifty dollars, costs to be taxed.” Defendant argues on appeal that the district court improperly measured his actions against a standard of care not applicable to the community in which his garage was located. We agree and reverse and remand for a new trial. The liability of a garage keeper for vehicles left in his control is generally governed by MCL 256.541; MSA 9.1721, which provides: "Whenever any damage shall be done to any motor vehicle while in the possession or under the care, custody or control of the owner, his agent or servant, or the keeper of any public garage or other establishment where such vehicle shall have been accepted for hire or gain, proof of such damage shall be prima facie evidence that such damage was the result of the negligent act of such owner or keeper of the place where such vehicle was stored.” Under this statute a bailor need only prove a demand for and failure to return his bailed vehicle to establish a prima facie case of bailee negligence. General Exchange Ins Corp v Service Parking Grounds, Inc, 254 Mich 1; 235 NW 898 (1931). Once such a prima facie case is made out, the burden of going forward with the evidence shifts to the defendant who must show by a preponderance of the evidence his freedom from negligence or that his negligence was not a proximate cause of the plaintiffs injury. Loving v Howard Lare, Inc, 344 Mich 97, 99; 73 NW2d 290 (1955). In its decision, the district court apparently rejected evidence presented by the plaintiff relating to the standard of care for rural garage owners, choosing instead to measure the defendant’s — 336 — conduct against the judicially noticed Port Huron standard. For the reasons explained below, we find that the trial court erred in applying an improper standard of care to determine whether the defendant’s conduct was negligent. The rule governing judicial notice of adjudicative facts is MRE 201(b), which provides: "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” The Port Huron practice in storing impounded vehicles is not susceptible to either of the above definitions. In reaching this conclusion, we note that Michigan courts have recognized business standards and practices in rare cases. See e.g., Lane v B & J Theatres, Inc, 314 Mich 666; 23 NW2d 120 (1946), Minneapolis Fire & Marine Ins Co v Porter, 328 Mich 11; 43 NW2d 46 (1950), Loving v Howard Lare, Inc, supra. Additionally, nothing in the trial court record suggests the uniformity of practice necessary to show the standard of care. Tatro v Baker-FiskHugill Co, 215 Mich 623; 184 NW 449 (1921). In the instant case, the practice to be noticed was not shown to be generally known and there is no unquestionably accurate source to which the issue may be referred. Further, evidence was offered to show that the standard in Capac was different than that applied in more urban Port Huron. This testimony alone establishes that the standard practice was not susceptible of judicial notice. In the absence of a judicially noticed standard of care, defendant was required to present evidence — 337 — of the standard applicable to the Capac area and his compliance therewith, to defeat the plaintiffs prima facie case. Loving v Howard Lare, Inc, supra. To establish the local standard, defendant must show that his conduct equalled that of "a reasonable man under like circumstances”. Moning v Alfono, 400 Mich 425, 443; 254 NW2d 759 (1977). Further, in determining the reasonableness of the defendant’s actions, the trier of fact must weigh the utility of defendant’s conduct against the degree of risk thereby created. Meyers v Robb, 82 Mich App 549; 267 NW2d 450 (1978), McLaughlin v Great Lakes Contracting Co of Detroit, 82 Mich App 729; 267 NW2d 489 (1978). At trial, the only evidence offered to establish the applicable standard of care was the testimony of plaintiffs witness William Diriex, a service station owner in Richmond, Michigan. Diriex provided the following limited explanation of the steps used by him to protect impounded vehicles: "Mr. Diriex, would you agree that if a car was towed into your place of business that was lighted at night, the vehicle was locked up on the premises without a fence, the keys removed from the vehicle and secured inside the building, that would be adequate security? "Well, it isn’t the best, but that is what we did do. "That is standard in the industry, isn’t it? "Yes.” A careful reading of this testimony discloses that Diriex did not say the procedures followed by defendant met a perceived standard of care for rural garage owners. Rather, Diriex merely stated that the lack of additional protective measures was "standard” among such persons. In Marietta v Cliffs Ridge, Inc, 385 Mich 364, 369-370; 189 NW2d 208 (1971), the Supreme Court distinguished evi — 338 — dence of the usage and practice of an industry from the conclusion that such practices established a standard of care: "The customary usage and practice of the industry is relevant evidence to be used in determining whether or not this standard has been met. Such usage cannot, however, be determinative of the standard. As stated by Justice Holmes: "’What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.’ Texas and Pacifíc R Co v Behymer (1903), 189 US 468, 470 (23 S Ct 622, 47 L Ed 905). "The danger inherent in allowing an 'industry’ standard to be the sole criteria for determining whether or not the defendant exercised due care was recognized in Witt v Chrysler Corporation (1969), 15 Mich App 576, 583 [167 NW2d 100]: " 'To adopt this view would permit the industry to set its own standard of care.’ ” Thus, the testimony relating to the practice of local garagemen does not ipso facto indicate the standard of care. Under GCR 1963, 517.1, a trial court must state its findings of fact and conclusions of law thereon. This Court may only set aside such findings when they are clearly erroneous. Smith v Michigan State Accident Fund, 403 Mich 201; 267 NW2d 909 (1978). Further, a factual finding will be found "clearly erroneous” where the reviewing court is left with a definite and firm conviction that a mistake was committed. Tuttle v Dep’t of State Highways, 397 Mich 44; 243 NW2d 244 (1976). The testimony offered at trial relating to the standard of care does not support the lower court’s factual conclusion regarding application of the — 339 — Port Huron standard. Without the aid of its erroneous judicially noticed standard of care the trial court could not, based upon the evidence, conclude that defendant’s conduct fell short of that of a reasonably prudent man under similar circumstances. We thus find it necessary to reverse the decisions of the lower courts and remand the case for a new trial, at which evidence of the appropriate standard of care should be heard and findings of fact and conclusions of law be made thereon. Hensley v Colonial Dodge, Inc, 69 Mich App 597; 245 NW2d 142 (1976). Reversed and remanded to the district court for new trial. G. R. Corsiglia, J., concurred.