United States District Court,

D. New Hampshire.

Jeffrey BRADLEY

v.

WELLS FARGO BANK, N.A. et al.

 

Civil No. 12–cv–127–PB.

Dec. 18, 2013.

 

Ruth A. Hall, Union Law Office PC, Union, NH, Terrie L. Harman, Harman Law Offices, Portsmouth, NH, for Jeffrey Bradley.

 

Christopher J. Fischer, William Philpot, Jr., Haughey Philpot & Laurent PA, Laconia, NH, John S. McNicholas, Korde & Associates PC, Chelmsford, MA, for Wells Fargo Bank, N.A. et al.

 

MEMORANDUM AND ORDER

PAUL BARBADORO, District Judge.

*1 Jeffrey Bradley lost his home to foreclosure. He has sued his mortgage lender, two assignees of his mortgage, and two entities involved in servicing his loan. He challenges the legality of the foreclosure on several grounds and seeks damages from all of the defendants.

 

Bradley asserts his claims in both an amended complaint and a proposed second amended complaint that he filed with a motion to join additional defendants. Two defendants named in the amended complaint have filed answers, and the rest have filed motions to dismiss. All defendants oppose the motion for joinder. For the reasons set forth in this Memorandum and Order, I grant the motions to dismiss and deny the motion for joinder.

 

I. BACKGROUND

A. Factual Background FN1

 

FN1. I draw the background facts from the proposed second amended complaint (Doc. No.66–1), which provides a somewhat more detailed description of the relevant facts than is provided in the amended complaint. Doc. No. 38.

 

Bradley obtained a $143,500 mortgage loan from Ameriquest Mortgage Company in November 2004. Shortly thereafter, Ameriquest assigned the mortgage to Wells Fargo Bank, N.A. as trustee for an unnamed trust (“Wells Fargo Trustee”). FN2 Although the first payment on the note was not due until January 1, 2005, Bradley made payments on the loan in November and December 2004, as well as the first required payment in January 2005. Defendants, however, failed to give Bradley credit for any of his payments.

 

FN2. The proposed second amended complaint alleges that the assignment originally failed to name the assignee and that the actual assignment was made at a later time. The complaint does not identify the trust that benefitted from the assignment.

 

Without Bradley’s knowledge, HomEq Servicing was assigned responsibility for servicing Bradley’s loan. On March 1, 2005, HomEq sent Bradley a notice stating that his loan was three months overdue. Although Bradley’s loan called for the lender to make homeowner’s insurance payments on his behalf from an escrow account, HomEq failed to make the required payments. In August 2005, Bradley received a notice from his insurer stating that his homeowner’s insurance was about to be cancelled. Following instructions Bradley received from HomEq, Bradley paid his insurer and deducted the payment from his September mortgage payment. HomEq, however, refused to credit Bradley for his September mortgage payment. It also failed to give him a credit for his October payment and a double payment he attempted to make in November.

 

One or more defendants instituted foreclosure proceedings against Bradley in March 2006.FN3 In response, Bradley brought suit in state court to enjoin the foreclosure. A state court judge dismissed the foreclosure proceedings in an order dated January 31, 2007 “due to the cancellation of the foreclosure and the attempt of the plaintiffs to refinance their loan.” After the foreclosure case was dismissed, a representative of the defendants assured Bradley that an agreement could be reached to resolve their dispute.FN4 Bradley, however, was unable to contact the defendants to negotiate a settlement agreement. In 2009, Bradley spoke with a representative of HomEq and was informed that his loan “was lost in the computer database.” Between 2007 and 2010, defendants also sent multiple notices concerning the loan to the wrong address. On at least one occasion, Bradley was unable to obtain a payoff number from Wells Fargo or any of the other defendants. As a result, he lost an opportunity to refinance his loan.

 

FN3. The complaint does not identify the defendants who instituted foreclosure proceedings.

 

FN4. Again, the complaint does not identify the defendants whose representative allegedly made these representations.

 

*2 On September 1, 2010, Wells Fargo Trustee assigned Bradley’s mortgage to Wells Fargo Bank, N.A. as Trustee for a trust created pursuant to a Pooling and Servicing Agreement dated October 1, 2004 (“Wells Fargo PSA Trustee”).FN5 At around the same time, Ocwen Loan Servicing, LLC assumed responsibility for servicing Bradley’s loan.

 

FN5. Bradley alleges that the second assignment was not signed but instead only bears the initials “CC” for Christine Carter, an account manager for Ocwen Loan Servicing, LLC.

 

A few months later, on February 8, 2011, Wells Fargo PSA Trustee scheduled a foreclosure sale for March 9, 2011. It later postponed the foreclosure sale: first until April 6, 2011, and ultimately until April 27, 2011. A law office acting on behalf of Wells Fargo PSA Trustee sent Bradley’s former attorney a notice that the original foreclosure sale had been postponed. It continued to send foreclosure notices to the attorney even after she notified defendants that she no longer represented Bradley. Bradley never received notice of the foreclosure, which was completed as scheduled on April 27, 2011. Wells Fargo PSA Trustee purchased the property at the foreclosure sale.

 

On or about May 1, 2011, one of the defendants put a padlock on the door of Bradley’s home without a writ of possession and without giving him either notice to quit or a notice of eviction. On May 14, defendants or their agents threw Bradley’s household goods into a dumpster and destroyed many of Bradley’s personal effects, sentimental items, furniture, and other household goods.

 

B. Procedural Background

On January 27, 2012, Bradley filed a complaint in the Rockingham County Superior Court against Wells Fargo. Doc. No. 3. On March 30, 2012, Wells Fargo removed the case to this court. On March 18, 2013, Bradley filed an amended complaint naming Ameriquest and Ocwen as additional defendants. Bradley also listed Wells Fargo separately as a defendant in its individual capacity, in its capacity as trustee of the unnamed trust and in its capacity as trustee of the trust created by the Pooling and Servicing Agreement. Doc. No. 38. Wells Fargo PSA Trustee and Ocwen answered the amended complaint, but Wells Fargo, Wells Fargo Trustee, and Ameriquest all filed motions to dismiss for failure to state a claim. Bradley objected to each motion.

 

On September 24, 2013, Bradley filed a motion for joinder and attached a proposed second amended complaint that named HomEq Servicing as an additional defendant. The proposed second amended complaint also added additional factual allegations and new claims for relief against the original defendants. Doc. Nos. 66, 66–1. On October 8, 2013, all defendants filed objections to the motion for joinder.

 

II. STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must make factual allegations sufficient to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when it pleads “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (citations omitted).

 

*3 In deciding a motion to dismiss, I employ a two-step approach. See Ocasio–Hernández v. Fortuño–Burset, 640 F.3d 1, 12 (1st Cir.2011). First, I screen the complaint for statements that “merely offer legal conclusions couched as fact or threadbare recitals of the elements of a cause of action.” Id. (citations, internal quotation marks, and alterations omitted). A claim consisting of little more than “allegations that merely parrot the elements of the cause of action” may be dismissed. Id . Second, I credit as true all non-conclusory factual allegations and the reasonable inferences drawn from those allegations, and then determine if the claim is plausible. Id. The plausibility requirement “simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence” of illegal conduct.   Twombly, 550 U.S. at 556. The “make-or-break standard” is that those allegations and inferences, taken as true, “must state a plausible, not a merely conceivable, case for relief.” Sepúlveda– Villarini v. Dep’t of Educ., 628 F.3d 25, 29 (1st Cir.2010); see Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level.”).

 

Federal Rule of Civil Procedure 19, governing the required joinder of parties, “addresses situations where a lawsuit is proceeding without a party whose interests are central to the suit.” Bacardí Int’l Ltd. v. V. Suarez & Co., Inc., 719 F.3d 1, 9 (1st Cir.2013)(citing Picciotto v. Cont’l Cas. Co., 512 F.3d 9, 15 (1st Cir.2008)). The rule requires courts to “make pragmatic, practical judgments that are heavily influenced by the facts of each case.” Id. A party can be required to join if, among other things, “in that person’s absence, the court cannot accord complete relief among existing parties.” Fed.R.Civ.P. 19(a)(1)(A). Joinder is thus not required under 19(a)(1)(A) if “[c]omplete relief can be afforded among those already parties.” Bacardí Int’l, 719 F.3d at 10.

 

III. ANALYSIS

This case is procedurally complex because I must simultaneously resolve both defendants’ motions to dismiss the amended complaint and Bradley’s motion for joinder. Bradley has also increased the complexity of the case by suing Wells Fargo as distinct defendants in its corporate capacity, as trustee of an unnamed trust, and as Wells Fargo PSA Trustee. I address this complexity by first addressing the motions to dismiss the amended complaint and then resolving the motion for joinder. In resolving both motions, I will assume for purposes of analysis that Wells Fargo can be treated as a distinct defendant for each capacity in which it has been sued.

 

A. Motions to Dismiss

Bradley focuses his claims in the amended complaint on the foreclosure of the mortgage and his eviction following the foreclosure. The proper targets for these claims are Wells Fargo PSA Trustee, the entity that allegedly oversaw the foreclosure and eviction, and Ocwen, the loan servicer when the foreclosure and eviction occurred. The amended complaint does not allege that any of the other defendants had any involvement in either the foreclosure or the eviction. Accordingly, the amended complaint is defective to the extent that it seeks to hold these defendants liable for harm resulting from either the foreclosure or the eviction.FN6 See Gikas v. JPMorgan Chase Bank, N.A.,2013 DNH 057, 11 (finding that when defendants did not participate in foreclosure, “it is difficult to see how [plaintiff] could possibly recover” from them for any alleged wrongs visited upon him during the foreclosure).

 

FN6. In dismissing these claims, I take no position on Wells Fargo’s contention that its liability as Wells Fargo PSA Trustee is limited to any recovery that Bradley is able to obtain from trust assets.

 

*4 The only other claim that Bradley presents in the amended complaint is a claim that one or more of the defendants are liable because a lender who was willing to refinance Bradley’s mortgage loan “was unable to get a payoff amount from Wells Fargo or any of the named defendants and [as a result] plaintiffs’ loan refinance opportunity was lost.” Doc. No. 38. The amended complaint, however, alleges no additional facts whatsoever about the request for a payoff—no date, no year, or general time frame, and no party. This is a threadbare recital with no facts to support it. Therefore, it too fails to state a viable claim for relief. See Ocasio–Hernandez, 640 F.3d at 12.

 

B. Bradley’s Second Amended Complaint and Proposed Joinder of Parties

On September 24, 2013, Bradley filed a motion to join HomEq Servicing as a defendant pursuant to Rule 19(a)(1)(A), and attached a proposed second amended complaint to his motion.FN7 HomEq serviced the loan prior to 2010, at which point Ocwen took over. By ceasing servicing the loan in 2010, HomEq was not involved in any of the foreclosure proceedings, and all claims from the original complaint would fail against it for the same reasons that the claims cannot succeed against Wells Fargo Trustee, Wells Fargo, and Ameriquest. I will consider the other claims against HomEq below in my discussion of the applicability of the new claims to all defendants.

 

FN7. Bradley also seeks permission to sue “Unknown agents” who, he explains, are “those individuals or entities employed by, contracted with, or otherwise utilized by one or more of the other named defendants.” Bradley does not identify any specific actions by these agents that would lead the court to believe that it cannot accord complete relief among the existing parties. Fed.R.Civ.P. 19(a)(1)(A). Accordingly, I decline his request to join the unnamed agents as defendants.

 

1. Validity of the Assignment

Bradley has pleaded additional facts in the proposed second amended complaint to support his claim that the foreclosure was invalid because the assignments on which it was based are defective. These new allegations do not lead to a viable claim against HomEq because Bradley does not allege that it was involved in the foreclosure. The new facts are also insufficient to support claims against Ameriquest, Wells Fargo, or Wells Fargo Trustee. Wells Fargo PSA Trustee and Ocwen have not challenged the viability of the foreclosure claims in the amended complaint. Therefore, no purpose would be served in allowing Bradley to file a second amended complaint merely to assert new facts against defendants who have not challenged the sufficiency of the amended complaint.

 

2. RESPA Claims

Count V of the second amended complaint includes a claim under the Real Estate Settlement Procedures Act, (“RESPA”), for failing to notify Bradley of a transfer of loan servicers, impermissibly charging late fees during the transfer period, and failing to pay Bradley’s insurance premiums, as required by their contract. 12 U.S .C. §§ 2605(b-d),(g). These allegations include actions taken by HomEq in 2005 when it treated his payments as late payments, failed to make timely insurance payments, and failed to properly credit his payments to his account balance. Bradley also claims that in August 2010, HomEq and Ocwen failed to provide notice of the transfer of servicing of his loan. For the latter allegation, he claims that in August 2010, HomEq sent notice to his prior lawyers that he never received.

 

*5 Claims under RESPA are subject to a three-year statute of limitations for claims brought under 12 U.S.C. § 2605. 12 U.S.C. § 2614. As each of these claims began to run, at the latest, in August 2010, they are each barred by the statute.FN8 See Da Silva v. U.S. Bank, N.A., 885 F.Supp.2d 500, 504–05 (D.Mass. Aug. 8, 2012). The RESPA claims would thus be futile against all defendants.

 

FN8. Bradley does not argue in response to defendant’s statute of limitations arguments that his claims relate back to the filing of his original complaint. Fed.R.Civ.P. 15(c). One RESPA claim, the August 2010 claim for failure to provide notice of change of service, would not be barred by the statute of limitations if found to relate back. However, this claim does not arise “out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading.” Id. at 15(c)(1)(B). The original complaint, as discussed above, surrounds the foreclosure, with additional pleaded facts concerning assignments and a failure to provide a pay-off amount. This conduct is vastly different than an alleged failure to provide notice of a transfer of servicers—one of whom was not even mentioned in the original complaint. Bradley’s fraud claim fails to relate back for similar reasons. Should it relate back, the only fraud claim that would not be barred involves the second amended complaint’s allegation that HomEq, in 2009, misrepresented that Bradley’s loan was not in the database—conduct that was never mentioned in the original complaint. Thus, Bradley’s claims do not relate back to the filing of his original complaint.

 

3. Fraud and Fraudulent Misrepresentation

Count VI alleges fraud and fraudulent misrepresentation relating to the January 2007 Superior Court conference, in which defendant’s counsel misrepresented to Bradley that he “would be able to work things out” by calling a certain phone number. Bradley further claims that in 2009, HomEq misrepresented that his loan was not in HomEq’s database, and more generally that defendants fraudulently stated that he would be able to modify the loan when they did not in good faith intend to consider him for a modification.

 

Under New Hampshire law, a personal action must be brought within three years of “the act or omission complained of,” or within three years of when the act or omission was discovered or “in the exercise of reasonable diligence should have [been] discovered.” N .H.Rev.Stat. Ann. § 508:4, I (statute of limitations for personal actions). The limitations period on these claims expired, at the latest, in 2012. Because they were only asserted in September 2013, the claims are barred by the statute of limitations, and therefore futile. See Moore v. Mortg. Elec. Registration Sys., Inc., 848 F.Supp.2d 107, 121–22 (D.N.H.2012).

 

4. Breach of the Duty of Good Faith and Fair Dealing

Count VII claims a breach of the duty of good faith and fair dealing. Here Bradley argues that the mortgage contract afforded defendants discretion, and that they abused that discretion by transferring servicers without proper notice and by failing to credit Bradley’s 2005 loan payments. The three year New Hampshire statute of limitations applies to actions in contract as well as tort, unless the claim is otherwise limited by a particular statute. N.H.Rev.Stat. Ann. § 508:1; 4, I. As discussed above, each of these allegations would also be futile by failing to fall within the state’s three year statute of limitations.

 

Each of Bradley’s additional claims would be futile, and the new parties that he seeks to join are unnecessary for this court to afford complete relief for his claims surrounding the foreclosure and defendants Ocwen’s and/or the Wells Fargo PSA Trustee’s actions subsequent to foreclosing. For the reasons discussed above, I deny Bradley’s motion to join additional parties and counts to this litigation. Doc. No. 66.

 

IV. CONCLUSION

For the reasons set forth above, I grant Wells Fargo’s motion to dismiss, Doc. No. 43, Ameriquest’s motion to dismiss, Doc. No. 51, Wells Fargo Trustee’s motion to dismiss, Doc. No. 59, and I deny Bradley’s motion for joinder, Doc. No. 66.FN9

 

FN9. Because I deny Bradley’s motion to join, I need not decide the validity of the motion to strike brought by Ocwen, Wells Fargo, Wells Fargo Trustee, and Wells Fargo PSA Trustee. Doc. No. 71.

 

*6 SO ORDERED.

Court of Appeals of Michigan.

Thomas R. KALINOWSKI, Plaintiff–Appellant,

v.

Robert Thomas McALESTER, Defendant,

and

J & R Trucking, LLC, Defendant–Appellee.

 

Docket No. 313481.

Nov. 19, 2013.

 

Bay Circuit Court; LC No. 10–003260–NI.

 

Before: MURRAY, P.J., and DONOFRIO and BOONSTRA, JJ.

 

PER CURIAM.

*1 Plaintiff appeals as of right from the trial court’s November 2, 2012, order dismissing his negligence claim against defendant J & R Trucking LLC. We affirm.

 

I. FACTS AND PROCEEDINGS

Plaintiff purchased an unassembled carport from Menards. Menards hired defendant to deliver the carport to plaintiff’s residence, which is located along M–13, which is purportedly “a heavily traveled 4–lane highway.” On November 28, 2009, defendant sent its driver, George Sloas, to make the delivery. Sloas arrived at about noon and stopped the tractor-trailer he was driving on the east (northbound) side of the road, across the road from plaintiff’s residence, which was on the west (southbound) side. Sloas then exited the tractor, placed three orange cones behind the trailer, walked up to plaintiff’s residence, and identified himself as having a delivery for plaintiff. Plaintiff and his brother-in-law, Jonathan Forro, were present. All three then headed towards the tractor-trailer, with Sloas approximately ten feet ahead of the others.

 

Sloas crossed the road, unstrapped the load, lowered the landing gear on the front of the trailer, pulled the fifth wheel pin, and unhooked the airline. FN1 While Sloas was unstrapping the load, plaintiff crossed the road and began to talk to Sloas about unloading the carport materials at a parking lot further down the road. Sloas explained:

 

FN1. Sloas’s tractor doubled as a fork-lift. Sloas intended to use the tractor/forklift to move the carport materials, which consisted of sheet metal estimated by Sloas to be 16 to 18 feet in length. The sheet metal was placed on 2 x 4s so that they could be lifted by the forks.

 

I came back out to the truck, grabbed my bar, walked to the other side of the truck, the east side—west side. Passenger side of the truck. I undid the straps. When I walked around the truck he was standing there, the customer, Mr. Kalinowski. I grabbed the straps and threw them over the trailer. I lowered the landing gear down. We were talking then. I was lowering the landing gear down. I pulled the pin. Somewhere between the time I lowered the landing gear and pulled the pin is where there was the discussion about going down to the Ford dealership. I told him it wouldn’t be safe. I also told him, the cars went by us at that time, I told him watch yourself, sometimes people don’t pay attention. He said: “Yeah, I know.” That’s when I walked up and got in the truck.

Sloas observed plaintiff “walking towards the back of the trailer behind the truck,” “standing on the white line” within a foot of the lane of travel, and explained that a collision occurred immediately thereafter:

 

I got in the truck. I looked in the mirror real quick. I looked in the mirror quick. I [saw plaintiff] walking back this way. I already hit the dump valve to dump the air on the ground. It lets air go out of the truck. So the landing gear goes down to the ground. And I put the truck in gear. I started pulling forward. When I did that I[saw] the cone fly up in the air out of the corner of my eye. I looked back and the car hit and in a matter of seconds it hit me. And I didn’t see [plaintiff].

 

* * *

 

The only time I[saw] the car is when the cone flew and I was doing stuff over here in my truck, putting it in gear. I looked back in the mirror. About that time I[saw] the cone fly and within a second later [the car] hit the trailer and spun around and hit the semi. At that time it did another like almost 180 and stopped.

 

*2 The car was driven by defendant Robert McAlester, who undisputedly had fallen asleep at the wheel. According to Forro, the passenger-side, front of the car struck plaintiff and the rear, driver’s-side corner of trailer at the same time, and plaintiff was facing away from the car, “next to the wheel at the rear corner of the trailer.” One of the tandem wheels on the driver’s side rear corner of the trailer was ripped from the trailer. Forro watched the trailer move during the collision. The trailer tires left skid marks. Forro opined that the “trailer was … in the roadway” when the collision occurred. Forro formed this opinion after the accident occurred based on where the trailer skid marks began. Weldon Greiger, an accident reconstructionist, opined that “the trailer involved in this crash was parked over the fog line into the northbound driving lane of M13.” FN2

 

FN2. A fog line is the line at the side of the road marking the edge of the drivable portion.

 

This negligence lawsuit followed. Defendant moved for summary disposition which, after a hearing, the trial court granted. The trial court first stated that there is no duty to aid or protect another absent a “special relationship,” such as between a common carrier and passenger, or parent and child. It then held, in pertinent part:

 

Under the facts and circumstances of this case, viewed in the light most favorable to Plaintiff, this Court finds that no legal duty existed between J & R Trucking and Plaintiff. Since there was no legal duty, a discussion of whether J & R Trucking was negligent in any way is not appropriate. In addition, the Court finds that Plaintiff was injured due to an intervening and superseding cause; that is, he was struck by a car driven by Defendant Robert T. McAlester after McAlester had fallen asleep at the wheel. There is no genuine issue of material fact that Plaintiff’s injuries were the proximate result of any conduct of J & R Trucking. Therefore, J & R Trucking’s Motion for Summary Disposition is granted.

 

The trial court entered a final order dismissing the suit on November 2, 2012. This appeal followed.

 

II. ANALYSIS

Plaintiff challenges the trial court’s order granting defendant’s motion for summary disposition. The trial court granted the motion pursuant to MCR 2.116(C)(10), which tests the factual sufficiency of the complaint. In evaluating the motion, a court considers the affidavits, pleadings, depositions, admissions, and other evidence submitted in the light most favorable to the nonmoving party. Where the evidence fails to establish a genuine issue of material fact, “the moving party is entitled to judgment as a matter of law.” Maiden v. Rozwood, 461 Mich. 109, 120; 597 NW2d 817 (1999). This Court will review de novo a decision on a motion for summary disposition. Jarrad v. Integon Nat’l Ins Co, 472 Mich. 207, 212; 696 NW2d 621 (2005).

 

“In order to establish a prima facie negligence claim, a plaintiff must prove four elements: (1) duty, (2) breach of the duty, (3) causation, and (4) damages.” Seldon v. Suburban Mobility Auth for Regional Transportation, 297 Mich.App 427, 433; 824 NW2d 318 (2012).

 

A. DUTY

*3 Defendant asserts that it had no duty to plaintiff because the two do not have a “special relationship.” The trial court appears to have agreed with this argument because in its opinion it set forth the rule that there is no duty to aid or protect another absent a “special relationship” and then “f [ou]nd that no legal duty existed between J & R Trucking and Plaintiff.”

 

“Whether a duty exists is a question of law for the court to decide.”   Seldon, 297 Mich.App at 433. “[C]ourts have made a distinction between misfeasance, or active misconduct causing personal injury, and nonfeasance, which is passive inaction or the failure to actively protect others from harm.” Williams v. Cunningham Drug Stores, Inc, 429 Mich. 495, 498; 418 NW2d 381 (1988). With respect to nonfeasance, there is no legal duty that obligates a person to aid or protect another. Id. at 498–499. An exception has developed where a “special relationship” exists between the persons. Id. at 499 (noting that because of the “special relationship[,]” “a common carrier may be obligated to protect its passengers, an innkeeper his guests, and an employer his employees”).

 

Defendant’s allegedly negligent act of stopping the tractor-trailer with the trailer partially protruding into the travel lane rather than in a safer location does not concern nonfeasance. Rather, it concerns active misconduct; i.e., misfeasance. Thus, the “special relationship” requirement that is only applied to a claim of nonfeasance has no relevance in the instant case. See Graves v. Warner Bros, 253 Mich.App 486, 507; 656 NW2d 195 (2002) ( “[P]rinciples regarding the duty to protect another … and the necessity of a special relationship do not apply in cases of misfeasance.”).

 

“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 and Co, 492 Mich. 651, 660–661; 822 NW2d 190 (2012). Additionally, “[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.” Id. at 660.

 

For two reasons we conclude that defendant had a duty to refrain from stopping the tractor-trailer with the trailer partially protruding into the travel lane. First, there is a duty at common law to use reasonable care so that a stopped vehicle does not constitute a source of danger to others.FN3 Reed v. Ogden & Moffett, 252 Mich. 362, 364–365; 233 NW 345 (1930) (“It was [defendant’s] duty to use reasonable care, that the truck-trailer, so stopped in the highway, did not constitute a source of danger to other users of the highway.”). Second, the factors relevant to the determination of whether a legal duty exists support the duty. See Hill, 492 Mich. at 661, quoting In re Certified Question from the Fourteenth Dist Court of Appeals of Texas, 479 Mich. 498, 505–506; 740 NW2d 206 (2007) (“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.’ ”). The parties had a deliverer-deliveree and driver-pedestrian relationship; the possibility of harm from stopping a tractor-trailer with the trailer partially protruding into the travel lane was substantial; the burden of stopping a tractor-trailer so that the trailer is not partially protruding into the travel lane when the shoulder is available was minimal; and the significant risk presented by stopping a tractor-trailer with the trailer partially protruding into the travel lane is self-evident to anyone who has driven or been a passenger in a vehicle.

 

FN3. This common-law “stopping” duty is merely the duty to use due care or to not unreasonably endanger the person or property of others applied to the specific context of stopping a vehicle on a road.

 

*4 Accordingly, the trial court erred in holding that “no legal duty existed between” defendant and plaintiff because there was no special relationship. Defendant had a common law duty to stop the tractor-trailer so as not to constitute a source of danger to others.

 

B. BREACH OF THE DUTY

“The question whether a defendant has breached a duty of care is ordinarily a question of fact for the jury and not appropriate for summary disposition.”   Latham v. Nat’l Car Rental Sys, Inc, 239 Mich.App 330, 340; 608 NW2d 66 (2000). “However, when the moving party can show either that an essential element of the nonmoving party’s case is missing, or that the nonmoving party’s evidence is insufficient to establish an element of its claim, summary disposition is properly granted[.]” Id.

 

Here, plaintiff presented sufficient evidence to create a genuine issue of material fact that defendant breached its duty to stop the tractor-trailer so as not to constitute a source of danger to others. In particular, plaintiff submitted an affidavit from an accident reconstructionist who opined that “the trailer involved in this crash was parked over the fog line into the northbound driving lane of M13.” Forro also testified that the tractor-trailer was in the roadway. This evidence was sufficient to create a genuine issue of material fact.

 

III. CAUSATION

However, although plaintiff created an issue of material fact on the duty element and on whether defendant breached that duty, under the undisputed facts, plaintiff cannot establish that the alleged breach of duty proximately caused his injuries.

 

“Proximate cause is a question of fact for the jury unless reasonable men would not differ as to whether defendant’s alleged breaches of duty were not the cause of plaintiffs’ injuries or were too insignificantly connected to or too remotely affected by defendant’s breaches of duty.” Mills v. White Castle Sys, Inc, 167 Mich.App 202, 209; 421 NW2d 631 (1988). “There may be more than one proximate cause of an injury, and a defendant cannot escape liability for its negligent conduct merely because the negligence of others may also have contributed to the harm caused.” Id. “Proving proximate cause actually entails proof of two separate elements: (1) cause in fact and (2) legal cause, also known as ‘proximate cause.’ “ Helmus v. Michigan Dep’t of Transp, 238 Mich.App 250, 255; 604 NW2d 793 (1999). “ ‘The cause in fact element generally requires showing that ‘but for’ the defendant’s actions, the plaintiff’s injury would not have occurred. On the other hand, legal cause or ‘proximate cause’ normally involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences.’ “ Id., quoting Skinner v. Square D Co, 445 Mich. 153, 162–163; 516 NW2d 475 (1994). If there is more than one possible cause to an accident, “one actor’s negligence will not be considered a proximate cause … unless it was a substantial factor in bringing about the injury.” Poe v. City of Detroit, 179 Mich.App 564, 576; 446 NW2d 523 (1989).

 

*5 Here, there is no need to address whether McAlester’s negligence was an intervening or superseding cause, because plaintiff cannot show that his injuries would not have occurred “but for” defendant’s alleged breach of duty (i.e., stopping the tractor-trailer with the trailer partially protruding into the travel lane). That is, plaintiff’s injury would have occurred even if the tractor-trailer was not partially protruding into the travel lane. McAlester did not swerve to avoid the trailer before hitting plaintiff. His vehicle did not ricochet off the trailer and strike plaintiff. Rather, McAlester struck the trailer and plaintiff at the same time; and the vehicle struck the trailer and plaintiff because McAlester fell asleep behind the wheel, not because the tractor-trailer was stopped with the trailer partially protruding into the travel lane. Plaintiff, therefore, cannot establish the causation-in-fact prong of the proximate cause analysis. Having reached that conclusion, we need not assess the legal causation prong. Accordingly, defendant was entitled to summary disposition because there was no evidence to support a finding that defendant’s alleged breach of duty was a proximate cause of plaintiff’s injuries .FN4 This Court will affirm a trial court’s decision if it reached the right result, even if it does so for the wrong reasons. Wickings v. Arctic Enterprises, Inc, 244 Mich.App 125, 150; 624 NW2d 197 (2000).

 

FN4. Courts from other states have likewise held that an actor’s negligence in placing the victim in the location where the accident occurred is not a substantial factor of the injury when the actor who hit the plaintiff fell asleep while driving a car. See, e.g., Lear Siegler Inc v. Perez, 819 S.W.2d 470, 471–472 (Tx, 1991); Saviano v. City of New York, 5 AD3d 581, 582; 774 N.Y.S.2d 82 (2004); Tennyson v. Brower, 823 F Supp 421, 423–424 (EDKy, 1993).

 

Affirmed.