If this opinion indicates that it is FOR PUBLICATION, it is subject to revision until final publication in the Michigan Appeals Reports. S T A T E O F M I C H I G A N C O U R T O F A P P E A L S ESTATE OF MARTEL ROBERTSON, by LEOLA ROBERTSON, Personal Representative, UNPUBLISHED January 22, 2019 Plaintiff-Appellee, v No. 337961 Wayne Circuit Court LADARIUS DEANGELO JOHNSON, LC No. 15-010455-NI and Defendant, U-HAUL CO. OF MICHIGAN, also known as 2013 U-HAUL TITLING 1, LLC, Defendant-Appellant. Before: M. J. KELLY, P.J., and METER and O BRIEN, JJ. PER CURIAM. In this negligence action, defendant, U-Haul Company of Michigan (U-Haul), appeals by leave granted 1 the trial court order denying U-Haul s motion for summary disposition under MCR 2.116(C)(10). For the reasons stated in this opinion, we affirm. I. BASIC FACTS This action arises out of a motor vehicle accident that caused the death of Martel Robertson. Robertson was the passenger in a vehicle heading southbound on M-39 in Detroit when he was struck from behind by defendant, Ladarius Johnson, who was driving a vehicle 1 Estate of Robertson v Johnson, unpublished order of the Court of Appeals, entered June 16, 2017 (Docket No. 337961).
owned by U-Haul. The vehicle driven by Johnson had been rented from U-Haul almost two weeks earlier by Robert Smith at the request of Johnson, who admits that he would have been unable to rent the vehicle himself because he did not have a valid driver s license. Smith then granted Johnson complete control over the vehicle. The initial duration of the rental was only for one day, and Smith testified that he had no further communication with anyone from U-Haul until April 12, 2015. He testified that until that point he was under the impression that the vehicle had already been returned to U-Haul. However, viewing the record in the light most favorable to plaintiff, the record reflects that Johnson extended the rental contract without Smith s knowledge or consent on a number of occasions. Most of the extensions are unsigned and appear to have been made by Johnson over the telephone. However, the second extension, dated April 9, 2015, was signed Robert Smith and indicates that $50 in cash was received by U-Haul. Smith denied that the signature appearing on the rental extension was his signature. Johnson testified, however, that his girlfriend or fiancée visited the U-Haul facility to make a cash deposit so that the rental agreement would remain current. Thus, it is reasonable to infer that Johnson s girlfriend or fiancée signed Smith s name on the contract extension. Viewed in the light most favorable to plaintiff, Smith was unaware of the contract extensions and did not give permission for Johnson or Johnson s girlfriend or fiancé to extend the contract. After Robertson s death, plaintiff brought suit against Johnson and U-Haul. U-Haul moved for summary disposition pursuant to MCR 2.116(C)(10), contending that, under the circumstances, it could only be held liable pursuant to federal and state statutes for negligent entrustment of the vehicle, and plaintiff had failed to allege negligent entrustment. Plaintiff responded that its claim was not based upon negligent entrustment, but rather upon ordinary negligence. The trial court agreed and denied the motion for summary disposition. II. SUMMARY DISPOSITION A. STANDARD OF REVIEW U-Haul argues that the trial court erred by denying its motion for summary disposition. The trial court s ruling on a motion for summary disposition is reviewed de novo on appeal. ZCD Transp, Inc v State Farm Mut Auto Ins Co, 299 Mich App 336, 339; 830 NW2d 428 (2012). This Court also reviews de novo the interpretation of a statute. McLean v McElhaney, 289 Mich App 592, 596; 798 NW2d 29 (2010). Summary disposition under MCR 2.116(C)(10) is appropriate where, [e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law. A (C)(10) motion considers documentary evidence and tests the factual sufficiency of the complaint. Dalley v Dykema Gossett, 287 Mich App 296, 304 n 3; 788 NW2d 679 (2010) (quotation marks and citation omitted). In reviewing the motion, this Court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, in a light most favorable to the party opposing the motion. Sanders v Perfecting Church, 303 Mich App 1, 4; 840 NW2d 401 (2013) (quotation marks and citation omitted). [R]eview is limited to the evidence that has been presented to the circuit court at the time the motion was decided. Innovative Adult Foster Care, Inc v Ragin, 285 Mich App 466, 476; 776 NW2d 398 (2009). -2-
B. ANALYSIS U-Haul first argues that summary disposition should have been granted in its favor because Michigan does not recognize a claim for ordinary negligence in connection with the rental transaction where the facts do not support a claim for negligent entrustment. Resolution of this issue involves the interpretation of the owner s liability statute, MCL 257.401. The primary rule of statutory interpretation is that we are to give effect the intent of the Legislature. Stanton v City of Battle Creek, 466 Mich 611, 615; 647 NW2d 508 (2002). To do so, we begin with the language of the statute, ascertaining the intent that may reasonably be inferred from its language. Odom v Wayne Co, 482 Mich 459, 467; 760 NW2d 217 (2008), quoting Lash v Traverse City, 479 Mich 180, 187; 735 NW2d 628 (2007). If the language is unambiguous, the intent of the Legislature is clear and judicial construction is neither necessary nor permitted. Odom, 482 Mich at 467, quoting Lash, 479 Mich at 187. MCL 257.401 provides in relevant part: (1) This section shall not be construed to limit the right of a person to bring a civil action for damages for injuries to either person or property resulting from a violation of this act by the owner or operator of a motor vehicle or his or her agent or servant. The owner of a motor vehicle is liable for an injury caused by the negligent operation of the motor vehicle whether the negligence consists of a violation of a statute of this state or the ordinary care standard required by common law. The owner is not liable unless the motor vehicle is being driven with his or her express or implied consent or knowledge. It is presumed that the motor vehicle is being driven with the knowledge and consent of the owner if it is driven at the time of the injury by his or her spouse, father, mother, brother, sister, son, daughter, or other immediate member of the family. * * * (3) Notwithstanding subsection (1), a person engaged in the business of leasing motor vehicles who is the lessor of a motor vehicle under a lease providing for the use of the motor vehicle by the lessee for a period of 30 days or less is liable for an injury caused by the negligent operation of the leased motor vehicle only if the injury occurred while the leased motor vehicle was being operated by an authorized driver under the lease agreement or by the lessee s spouse, father, mother, brother, sister, son, daughter, or other immediate family member. Unless the lessor, or his or her agent, was negligent in the leasing of the motor vehicle, the lessor s liability under this subsection is limited to $20,000.00 because of bodily injury to or death of 1 person in any 1 accident and $40,000.00 because of bodily injury to or death of 2 or more persons in any 1 accident. The first sentence of MCL 257.401(3) plainly sets forth the circumstances when a short-term lessor such as U-Haul will be liable for injuries caused by the negligent operation of the motor-vehicle that it leased. The second sentence provides that the liability imposed by the first sentence is generally limited to $20,000 or $40,000. Additionally, the second sentence provides -3-
that the limitations on liability do not apply if the lessor, or his or her agent, was negligent in the leasing of the motor vehicle. MCL 257.401(3) (emphasis added). U-Haul interprets the phrase in the leasing of a motor vehicle as being synonymous with a common-law claim for negligent entrustment. U-Haul also argues that such a claim only looks at the circumstances at the time of the rental. In support, U-Haul directs our attention to Perin v Peuler, 373 Mich 531, 538-539; 130 NW2d 4 (1964), overruled on other grounds McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999), where our Supreme Court stated that in a negligent entrustment case: the burden is upon the plaintiff to establish that the motor vehicle was driven with the permission and authority of the owner; that the entrustee was in fact an incompetent driver; and that the owner knew at the time of the entrustment that the entrustee was incompetent or unqualified to operate the vehicle, or had knowledge of such facts and circumstances as would imply knowledge on the part of the owner of such incompetency. [(Emphasis added; quotation marks and citation omitted).] Perin, however, also suggested that a claim for negligent entrustment can be sustained if that conduct was known to the entrusting owner at the time of or during continuation of the entrustment.... Id. at 538. Accordingly, even under the common law, a claim for negligent entrustment is not necessarily limited to what the vehicle s owner knew at the time of the entrustment. More importantly, plaintiff has expressly disavowed reliance on a common-law negligent entrustment theory and instead asserts that liability arises under MCL 257.401(3). The plain language of MCL 257.401(3) provides that a short-term lessor is liable for an injury caused by the negligent operation of the leased motor vehicle only if the injury occurred while the leased motor vehicle was being operated by an authorized driver, and it provides that there are no monetary limitations on that liability if the lessor, or his or her agent, was negligent in the leasing of the motor vehicle. MCL 257.401(3). Nothing in the statutory language limits U- Haul s liability in leasing solely to the common-law negligent entrustment theory, which only imposes a duty on the owner if the owner knows or should know that the person being entrusted with a chattel is incompetent. Therefore, we may not read such a limitation into the statute. See Mich Ed Ass n v Secretary of State (On Rehearing), 489 Mich 194, 218; 801 NW2d 35 (2011) (stating that nothing will be read into a clear statute that is not within the manifest intention of the Legislature as derived from the language of the statute itself). Moreover, MCL 257.401(5) expressly provides that subsection (3) shall not be construed to expand or reduce, except as otherwise provided by this act, the liability of a person engaged in the business of leasing motor vehicles.... If we were to follow U-Haul s interpretation of the statute, it would amount to a reduction of liability for a short-term lessor in contravention of the plain language of the statute. Thus, contrary to U-Haul s claim on appeal, Michigan law permits a plaintiff to bring a claim for any negligence in the leasing process regardless of whether or not the elements for negligent entrustment can be satisfied under the circumstances. Having determined that plaintiff may sustain a claim for negligent leasing under MCL 257.401(3), we must determine whether U-Haul owed any legal duty to plaintiff s decedent, -4-
Robertson. U-Haul contends that under the present circumstances, it owes no duty to the general public in connection with the leasing process. We disagree. To establish a prima facie case of negligence, a plaintiff must prove that (1) the defendant owed the plaintiff a legal duty, (2) the defendant breached the legal duty, (3) the plaintiff suffered damages, and (4) the defendant s breach was a proximate cause of the plaintiff s damages. Hill v Sears, Roebuck & Co, 492 Mich 651, 660; 683 NW2d 587 (2004), quoting Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162; 809 NW2d 553 (2011). In Hill, our Supreme Court explained that [e]very person engaged in the performance of an undertaking has a duty to use due care or to not unreasonably endanger the person or property of others, but that as a general rule there is no duty that obligates one person to aid or protect another. Id. (quotation marks and citations omitted). Generally, the duty that arises when a person actively engages in certain conduct may arise from a statute, a contractual relationship, or by operation of the common law.... Id. at 660-661. In this case, there is no contractual relationship between U-Haul and Robertson and plaintiff concedes that she is not seeking to impose liability under the common-law theory of negligent entrustment. We therefore must examine whether a duty arises under MCL 257.401. [W]hether a plaintiff can use a statute to impose a duty of care on a defendant depends on (1) whether the purpose of the statute was to prevent the type of injury and harm actually suffered and (2) whether the plaintiff was within the class of persons which the statute was designed to protect. Cipri v Bellingham Frozen Foods, Inc, 235 Mich App 1, 16; 596 NW2d 620 (1999) (quotation marks, brackets, and citation omitted). Here, one purpose of MCL 257.401(3) was to lessen the extraordinary losses to which (short-term) lessors were being subjected when they had no control over the vehicle after it was leased. DeHart v Joe Lunghamer Chevrolet, Inc, 239 Mich App 181, 189; 607 NW2d 417 (1999). Yet, another purpose is to set forth the circumstances where a short-term lessor would be liable for negligence, including negligence in the leasing of the motor vehicle. Further, by not limiting damages arising from negligent leasing, the Legislature signaled its recognition that negligence in the leasing process was one area where the general public needed additional protection. 2 Thus, a purpose of the statute is to prevent the loss of life caused by negligent operation of a motor-vehicle leased on a short-term basis, which is the exact type of harm that occurred in this 2 U-Haul appears to contend that so long as it is unaware of any obvious incompetency with the individual signing the rental contract, it has no obligation to ensure that other individuals who U- Haul knows or should know are driving the vehicle are minimally competent to safely operate the vehicle. In effect, U-Haul is arguing that by willfully remaining ignorant of even the most basic requirements such as whether the person it knows to be driving the vehicle has a valid driver s license it is wholly immune from tort liability arising from an unlicensed driver s negligence. However, the statute imposes a duty on U-Haul to not engage in negligent leasing. Here, there is a fact question as to whether U-Haul breached that duty by knowingly extending the lease to a stranger to the contract on several occasions without taking any steps to ensure that the vehicle was being operated by someone minimally competent, i.e. someone with a valid driver s license. -5-
case. Furthermore, the statute was designed to protect the general public from the risk of harm caused by the negligent leasing of a motor-vehicle; therefore, plaintiff s decedent is within the class of individuals the statute is designed to protect. As a result, there is a statutory basis for imposing a duty on U-Haul in this case. 3 Finally, to the extent that U-Haul argues plaintiff cannot establish causation, we decline to consider that issue. The issue of proximate cause was not raised in the application for leave to appeal, and our grant of leave to appeal was limited to the issues raised in the application. See MCR 7.205(E)(4). Affirmed. /s/ Michael J. Kelly /s/ Patrick M. Meter 3 U-Haul and the dissent seek to determine whether a duty also arises under the common law. As explained in Hill: At common law, the determination of whether a legal duty exists is a question of whether the relationship between the actor and the plaintiff gives rise to any legal obligation on the actor's part to act for the benefit of the subsequently injured person. The ultimate inquiry in determining whether a legal duty should be imposed is whether the social benefits of imposing a duty outweigh the social costs of imposing a duty. Factors relevant to the determination whether a legal duty exists include the relationship of the parties, the foreseeability of the harm, the burden on the defendant, and the nature of the risk presented. We have recognized, however, that the most important factor to be considered in this analysis is the relationship of the parties and also that there can be no duty imposed when the harm is not foreseeable. In other words, before a duty can be imposed, there must be a relationship between the parties and the harm must have been foreseeable. If either of these two factors is lacking, then it is unnecessary to consider any of the remaining factors. [Hill, 492 Mich at 661 (quotation marks, brackets, and citations omitted.] Because plaintiff is not raising a common-law claim in this case and is instead raising a statutory claim, analyzing whether a duty arises under the common law is unnecessary. -6-
If this opinion indicates that it is FOR PUBLICATION, it is subject to revision until final publication in the Michigan Appeals Reports. S T A T E O F M I C H I G A N C O U R T O F A P P E A L S ESTATE OF MARTEL ROBERTSON, by LEOLA ROBERTSON, Personal Representative, UNPUBLISHED January 22, 2019 Plaintiff-Appellee, v No. 337961 Wayne Circuit Court LADARIUS DEANGELO JOHNSON, LC No. 15-010455-NI and Defendant, U-HAUL CO. OF MICHIGAN, also known as 2013 U-HAUL TITLING 1, LLC, Defendant-Appellant. Before: M. J. KELLY, P.J., and METER and O BRIEN, JJ. O BRIEN J. (dissenting) The majority believes that plaintiff is asserting a claim for negligent leasing under MCL 257.401(3), and holds that such a claim is permissible. I cannot agree. Plaintiff expressly disavowed that she is asserting a claim under MCL 257.401(3), and she repeatedly stressed that she is asserting a claim for common-law negligence. Because plaintiff cannot establish a duty that U-Haul owed Martel Robertson aside from its duty under a negligent-entrustment theory, I would hold that her claim fails as a matter of law. For these reasons, I respectfully dissent. In plaintiff s brief on appeal, she states, Ms. Robertson is not contending that MCL 257.401(3) creates a cause of action against U-Haul for the negligence of its agents committed during the [course] of a rental agreement. There is no other way to read this statement: contrary to the majority s opinion, plaintiff is not asserting a claim under MCL 257.401(3). Instead, plaintiff is asserting a claim for ordinary negligence undertaken by the lessor during the course of its lease. She makes this abundantly clear throughout her brief:
Instead, plaintiff argued that U-Haul was liable on a claim of ordinary negligence associated with the renting of its vehicle. What Ms. Robertson argued, instead, is that U-Haul could be found liable for the negligence of its agents under fundamental principles of Michigan common law. U-Haul completely fails to explain why it should be found immune from a claim of ordinary negligence under the facts of this case. Nor is there a Michigan case that establishes that a leasor [sic] of a vehicle is somehow immune from a claim of ordinary negligence as U-Haul appears to claim in this appeal. After stating that she is not contending that MCL 257.401(3) creates a cause of action, plaintiff explains that her reason for citing MCL 257.401(3) is to support that she has a claim against U-Haul under a theory of common-law negligence: Ms. Robertson is not contending that MCL 257.401(3) creates a cause of action against U-Haul for the negligence of its agents committed during the [course] of a rental agreement. What she is arguing, instead, is that MCL 257.401(3) recognizes the existence of such a claim of negligence. Since U-Haul is of the view that this Court should adopt a rule of law holding that it cannot be sued for negligence in the leasing of a [motor] vehicle, MCL 257.401(3) is significant for the common-law right that it recognizes, not for any cause of action that it purportedly creates. [Some emphasis added.] Thus, plaintiff is clear that her reference to MCL 257.401(3) is to show that it recognizes a cause of action for common-law negligence against a lessor; she is not contending that it creates a cause of action. And in this respect, I agree with plaintiff. MCL 257.401(3) provides as follows: Notwithstanding subsection (1), a person engaged in the business of leasing motor vehicles who is the lessor of a motor vehicle under a lease providing for the use of the motor vehicle by the lessee for a period of 30 days or less is liable for an injury caused by the negligent operation of the leased motor vehicle only if the injury occurred while the leased motor vehicle was being operated by an authorized driver under the lease agreement or by the lessee s spouse, father, mother, brother, sister, son, daughter, or other immediate family member. Unless the lessor, or his or her agent, was negligent in the leasing of the motor vehicle, the lessor s liability under this subsection is limited to $20,000.00 because of bodily injury to or death of 1 person in any 1 accident and $40,000.00 because of bodily injury to or death of 2 or more persons in any 1 accident. [Emphasis added.] I disagree with the majority that the italicized portion of MCL 257.401(3) creates a cause of action. Before this statute was passed, a lessor of a motor vehicle was liable for negligence when leasing the motor vehicle. Indeed, the statute was passed because lessors of motor vehicles were -2-
too liable when leasing their motor vehicles. See DeHart v Joe Lunghamer Chevrolet, Inc, 239 Mich App 181, 189; 607 NW2d 417 (1999) (explaining that the legislative intent in enacting MCL 257.401(3) [was] to lessen the extraordinary losses to which (short-term) lessors were being subjected when they had no control over the vehicle after it was leased ). All that the exception in MCL 257.401(3) does is recognize that a lessor can still be liable for ordinary negligence like lessors could be before the statute was passed in the leasing of a motor vehicle. Any other interpretation of MCL 257.401(3) runs against the clear intent of the Legislature. MCL 257.401(5) states that MCL 257.401(3) shall not be construed to expand or reduce, except as otherwise provided by this act, the liability of a person engaged in the business of leasing motor vehicles.... (Emphasis added.) Yet the majority does just that. The majority states that by not limiting damages arising from negligent leasing presumably referring to the language in MCL 257.401(3) that [u]nless the lessor, or his or her agent, was negligent in the leasing of the motor vehicle the Legislature signaled its recognition that negligence in the leasing process was one area where the general public needed additional protection. 1 It then takes this purpose and holds that it establishes that U-Haul owed a duty to Martel. In so doing, the majority construes MCL 257.401(3) to expand the liability of lessors of motor vehicles in a way that is not provided in the act, which is in direct contradiction of the plain language of MCL 257.401(5). As MCL 257.401(3) does not create a cause of action, the question on appeal is whether U-Haul owed plaintiff a duty under common-law negligence. 2 Generally, the duty that arises when a person actively engages in certain conduct may arise from a statute, a contractual relationship, or by operation of the common law[.] Hill v Sears, Roebuck & Co, 492 Mich 651, 660-661; 822 NW2d 190 (2012). 1 I do not comprehend how the Legislature s statement in MCL 257.401(3) signaled anything other than that the limits discussed in the second sentence of MCL 257.401(3) do not apply if a lessor is negligent in the leasing of the motor vehicle. See Kar v Nanda, 291 Mich App 284, 291; 805 NW2d 609 (2011) (explaining that it is well-settled that the Legislature is presumed to mean what it says in a statute ); Book-Gilbert v Greenleaf, 302 Mich App 538, 542; 840 NW2d 743 (2013) ( The courts may not read into the statute a requirement that the Legislature has seen fit to omit ). 2 Notably, plaintiff only argues on appeal that U-Haul owed Martel a common-law duty. Plaintiff has never argued either in the trial court or on appeal that U-Haul owed a duty to plaintiff arising under MCL 257.401(3). By failing to do so, plaintiff has waived the argument. See Walters v Nadell, 481 Mich 377, 387-388; 751 NW2d 431 (2008) (explaining that issues that are not raised in the trial court are waived for appellate review). Without any explanation, the majority premises its holding on an issue that has clearly been waived. Even more troubling, as plaintiff has never made the statutory-duty argument relied on by the majority, U-Haul has never had an opportunity to respond to that argument. This is fundamentally unfair to U-Haul. -3-
Plaintiff does not point to any statute or contractual relationship giving rise to U-Haul s duty to the general public. Instead, plaintiff argues that U-Haul was negligent based on the following common-law rule stated in Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967): Actionable negligence presupposes the existence of a legal relationship between parties by which the injured party is owed a duty by the other, and such duty must be imposed by law. The duty may arise specifically by mandate of statute, or it may arise generally by operation of law under application of the basic rule of the common law, which imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person or property of others. This rule of the common law arises out of the concept that every person is under the general duty to so act, or to use that which he controls, as not to injure another. Relying on this passage, and without any further explanation, plaintiff concludes that [s]ince U-Haul s agents were engaged in an undertaking associated with the rental of the pick-up truck, they owed a duty of due care to so govern [their] actions as not to unreasonably endanger the person or property of others. But this broad interpretation of Clark was squarely rejected by our Supreme Court in In re Certified Question from Fourteenth Dist Court of Appeals of Texas, 479 Mich 498; 740 NW2d 206, 212 (2007). There, our Supreme Court explained: Plaintiffs and Justice CAVANAGH rely on the following two statements found in Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967): duty... may arise generally by operation of law under application of the basic rule of the common law, which imposes on every person engaged in the prosecution of any undertaking an obligation to use due care, or to so govern his actions as not to unreasonably endanger the person or property of others and every person is under the general duty to so act, or to use that which he controls, as not to injure another. However, they read these statements out of context. First, these statements immediately follow the statement that [a]ctionable negligence presupposes the existence of a legal relationship between parties by which the injured party is owed a duty by the other, and such duty must be imposed by law. Id. at 260-261. Although Justice CAVANAGH quotes this sentence, he fails to give it any meaning. Second, the Court subsequently addressed whether a relationship existed between the parties before it concluded that a duty was owed. Therefore, contrary to plaintiffs and Justice CAVANAGH s suggestion, Clark does not stand for the proposition that everybody owes a duty to everybody else. [In re Certified Question, 479 Mich at 509 n 10 (emphasis added).] Like in In re Certified Question, plaintiff here relies on Clark for the wrongful proposition that U-Haul owed a duty to everyone even if U-Haul did not have any legal relationship to them because U-Haul undertook an act. Compare Moning v Alfono, 400 Mich 425, 438-439; 254 NW2d 759 (1977), citing Clark, 379 Mich at 260 ( Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the -4-
actor s part for the benefit of the injured person. ) (Emphasis added.) The inquiry into whether a duty exists is not so simple. The proper test that courts are to employ before finding a duty was summarized in In re Certified Question, 479 Mich at 508-509, as follows: [I]n determining whether a defendant owes a duty to a plaintiff, competing policy factors must be considered. Such considerations include the relationship of the parties, the foreseeability of the harm, the burden that would be imposed on the defendant, and the nature of the risk presented. Where there is no relationship between the parties, no duty can be imposed, but where there is a relationship, the other factors must be considered to determine whether a duty should be imposed. Applying this test, I would conclude that U-Haul did not have a relationship with Martel. Indeed, no one appears to contend otherwise. The only question is whether U-Haul had a relationship to the general public giving rise to a duty to Martel. I would conclude that U-Haul did not. This is not to say that U-Haul was under no duty to the general public when it rented a motor vehicle; an owner or lender of a motor vehicle has a common-law duty to refrain from placing it in the hands of a known unfit or incompetent driver for operation on our public highways. Perin v Peuler, 373 Mich 531, 535; 130 NW2d 4 (1964), overruled on other grounds by McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999). In other words, U-Haul owed a duty to the public under a negligent-entrustment theory. But this was U-Haul s only recognized duty to the general public; there is no statute, contractual relationship, or common-law rule giving rise to a different duty U-Haul owed to the general public, or to Martel, under these facts. See Hill, 492 Mich at 660-661. Thus, either plaintiff is asserting a claim for negligent entrustment which she admits she cannot sustain or her claim fails as a matter of law because U-Haul had no relationship to the general public giving rise to a duty to Martel, see In re Certified Question, 479 Mich at 508-509, other than the duty imposed under a negligent-entrustment theory, see Perin, 373 at 535. Either way, summary disposition should be granted to U-Haul. For these reasons, I respectfully dissent. /s/ Colleen A. O Brien -5-