Sanders v. Detroit Edison Co.

Per Curiam. The trial court granted summary [23] judgment to defendant, and plaintiff appealed as of right. In an unpublished per curiam opinion, this Court reversed that judgment and remanded for further proceedings. Docket No. 59246, decided December 14, 1982. There we held that the defendant’s motion, which recited both GCR 1963 117.2(1) and (3), had been granted on the basis of subrule (3) and that such judgment was inappropriate. Upon application for leave to appeal, the Supreme Court, on December 15, 1983, entered the following order: "On order of the Court, the application for leave to appeal is considered and, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we VACATE the Court of Appeals judgment and REMAND the case to the Court of Appeals for consideration of whether the complaint in this matter stated a 'claim upon which relief can be granted.’ GCR 1963, 117.2(1). "We do not retain jurisdiction.” See 418 Mich 882 (1983). A motion for summary judgment based upon GCR 1963, 117.2(1) tests the legal sufficiency of the pleadings. Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974). The trial court, when ruling on the motion, must accept as true all well-pleaded facts in the complaint. Zaschak v Traverse Corp, 123 Mich App 126, 128; 333 NW2d 191 (1983). Briefly, plaintiffs complain that defendant on January 16, 1980, without any warning, without any notice, and without cause or provocation, did terminate the electrical services, thereby leaving plaintiffs without heat or other means of shelter and forcing plaintiffs to occupy said premises with candlelight. Plaintiffs further allege that on January 16, 1980, the candles did precipitate a fire which resulted in damages to plaintiffs. Defendant alleges that the pleadings are deficient in two [24] respects: They fail to recite a duty owed to plaintiffs by defendant, and they fail to make a prima facie allegation of proximate cause. The complaint sets forth two distinct duties. The first duty was based upon Detroit City Ordinance No. 361-H, chapter 39, art 1, passed December 5, Í979. That ordinance provided in pertinent part: "No artificial or natural gas or electrical public utility may terminate service to any residential customer, including multiple unit dwellings used for residential purposes, for non-payment of a delinquent account during the period commencing on the 15th day of October and ending on the 15th day of April.” This utility shutoff moratorium ordinance was adjudicated unconstitutional on January 28, 1980, The Detroit Edison Co v City of Detroit, Wayne Circuit Court civil action No. 79-942-914-CZ. Plaintiffs maintain that, since the service disconnection at issue occurred prior to the ordinance’s being declared unconstitutional, the ordinance should be held to have conferred a duty upon defendant for the purposes of this complaint. In 16 Am Jur 2d, Constitutional Law, § 177, pp 402-403, it is stated: "The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it, an unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed.” The rule that an unconstitutional statute is void ah initio had been long adhered to in Michigan. See Stanton v Lloyd Hammond Produce Farms, [25] 400 Mich 135, 144-145; 253 NW2d 114 (1977), citing the Am Jur language set forth supra. Although there are exceptions to this principle, Stanton, supra, pp 146-148, they are not applicable in this matter. Because the utility shutoff moratorium ordinance was void from its inception, it may not form the basis for a duty as asserted in plaintiffs’ complaint. Alternatively, plaintiffs plead that defendant had a duty to notify plaintiffs of any impending termination of electrical service. Such a duty to warn of service cutoff does exist under relevant Public Service Commission regulations. See 1979 AC, R 460.2163 and R 460.2152. We hold only that this part of plaintiffs’ pleadings can survive a summary judgment motion under GCR 1963, 117.2(1). We must now determine whether the pleadings state that defendant’s breach of duty was a proximate cause of plaintiffs’ injuries. These pleadings clearly establish the existence of an intervening negligent act, i.e., plaintiffs’ use of candles in such a fashion as to start a devastating fire. The salient question is whether the intervening act is of such character that a claim in negligance has not been pleaded as a matter of law. The question of proximate cause is generally held to be one for the jury. Comstock v General Motors Corp, 358 Mich 163, 180; 99 NW2d 627 (1959). More specifically, whether an intervening act of a third person constitutes a superseding proximate cause is a question for the jury to decide. Young v E W Bliss Co, 130 Mich App 363, 369; 343 NW2d 553 (1983), and cases cited therein. While an intervening independent cause may sever whatever connection there may be between the plaintiffs’ injuries and the defendant’s negligence, this is not so where the intervening act was reasonably [26] foreseeable. Davis v Thornton, 384 Mich 138, 148; 180 NW2d 11 (1970). See also 2 Restatement of Torts, §447, p 1196, followed in Fiser v City of Ann Arbor, 417 Mich 461, 474; 339 NW2d 413 (1983). We conclude that plaintiffs’ complaint does allege a cause of action such that it could survive defendant’s motion for summary judgment under GCR 1963, 117.2(1). This cause is remanded for trial. Reversed.