Stephen L Lowry v. Cellar Door Productions of Mich Inc ( 2001 )

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan
Opinion
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JUNE 26, 2001
MOLLY MACDONALD,
Plaintiff-Appellee,
v No. 114039
PKT, INC, known as PINE KNOB MUSIC
THEATER, and ARENA ASSOCIATES,
jointly and severally,
Defendants-Appellants,
and
CAPITAL CITIES/ABC, INC,
Defendant.
STEPHEN L. LOWRY,
Plaintiff-Appellant,
v No. 115322
CELLAR DOOR PRODUCTIONS OF MICHIGAN,
INC, a Michigan corporation, and
ARENA ASSOCIATES INC, d/b/a PINE
KNOB MUSIC THEATER, jointly and
severally,
Defendants-Appellees.
BEFORE THE ENTIRE BENCH
YOUNG, J.
I. INTRODUCTION
In these consolidated premises liability cases,
plaintiffs seek to recover for injuries they suffered when
fellow concertgoers at the Pine Knob Music Theater (Pine
Knob), an outdoor amphitheater that offered seating on a
grass-covered hill, began pulling up and throwing pieces of
sod. We granted leave to address the duty of premises owners
concerning the criminal acts of third parties.
Under Mason v Royal Dequindre, Inc, 455 Mich. 391; 566
NW2d 199 (1997), merchants have a duty to respond reasonably
to situations occurring on the premises that pose a risk of
imminent and foreseeable harm to identifiable invitees. We
hold today that the duty to respond is limited to reasonably
expediting the involvement of the police and that there is no
duty to otherwise anticipate and prevent the criminal acts of
third parties. Finally, consistent with Williams v Cunningham
Drug Stores, Inc, 429 Mich. 495; 418 NW2d 381 (1988), and Scott
v Harper Recreation, Inc, 444 Mich. 441; 506 NW2d 857 (1993),
we reaffirm that merchants are not required to provide
security personnel or otherwise resort to self help in order
to deter or quell such occurrences.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. MACDONALD
In MacDonald, plaintiff Molly MacDonald attended a
concert on May 4, 1995, at Pine Knob at which several bands
were performing. Pine Knob offers seating on a grass-covered
hill, as well as seating in a pavilion. Plaintiff received
the tickets to the concert as part of a promotional giveaway
by a local radio station sponsoring the concert. When
2
plaintiff arrived at Pine Knob, she and a friend found a spot
to sit on the hill. While a band called Bush was performing,
some patrons began pulling up sod and throwing it.
Before the concert, the event coordinator had asked the
bands to stop performing in the event that the audience
members began throwing sod, and announce that the sod throwing
must stop. There were also flyers posted in the dressing
rooms of the bands requesting the bands to make an
announcement to the audience to stop throwing sod. Pursuant
to that request, the band finished the song and stopped
performing, making an announcement that unless the sod
throwing stopped, the concert would not continue. The crowd
complied with the band’s request, and several individuals were
ejected from Pine Knob for throwing sod.
While the next band, the Ramones, was performing, the sod
throwing resumed. After that band refused to make an
announcement to stop throwing sod, the event coordinator
turned on the house lights. When the sod throwing continued,
the band made an additional announcement demanding that it
stop. Once again, several individuals who were involved in
throwing sod were ejected from the theater. During the second
incident of sod throwing, plaintiff fractured her ankle when
she fell while attempting to avoid being struck by a piece of
sod. Discovery materials indicated that there had been two
sod-throwing incidents at previous concerts at Pine Knob, one
incident in 1991, at a Lollapalooza concert, and another
3
incident in 1994, at a Metallica concert.1
Plaintiff filed a complaint against, among others, PKT,
Inc., also known as Pine Knob Music Theater and Arena
Associates.2 Plaintiff alleged that Pine Knob was negligent
in failing to provide proper security, failing to stop the
performance when it should have known that continuing the
performance would incite the crowd, failing to screen the
crowd to eliminate intoxicated individuals, and by selling
alcoholic beverages. Pine Knob moved for summary disposition,
arguing that it did not have a duty to protect plaintiff from
the criminal acts of third parties. Meanwhile, plaintiff
moved to amend her complaint to add certain theories including
design defect, nuisance, and third-party beneficiary claims
and to more specifically set forth her negligence claim.
The trial court granted summary disposition for Pine Knob
pursuant to MCR 2.116(C)(8) and (10), but the Court of Appeals
reversed.3 The Court of Appeals held that the trial court
erred in granting summary disposition in favor of Pine Knob
because there were fact questions for the jury regarding
whether the sod throwing incident created a foreseeable risk
of harm and whether the security measures taken by Pine Knob
1
The 1994 sod-throwing incident resulted in the lawsuit
at issue in Lowry.
2
Although not fully explained by the parties, apparently
Pine Knob Music Theater and Arena Associates is one entity.
Capital Cities/ABC, Inc., the owner of the radio station that
sponsored the concert, was dismissed as a party defendant from
the case early on and is not a party to this appeal.
3
233 Mich. App. 395; 593 NW2d 176 (1999).
4
were reasonable. The Court of Appeals reasoned that plaintiff
submitted evidence that there had been incidents of sod
throwing at previous concerts, that Pine Knob was aware of
those instances, and that it had formulated policies to deal
with sod throwing incidents before the concert. Regarding the
question whether security measures taken by Pine Knob were
reasonable, the Court of Appeals stated that plaintiff
presented evidence sufficient to survive summary disposition
by submitting the affidavit of an expert witness who stated
that Pine Knob was negligent by (1) failing to have adequately
trained security personnel properly positioned at the
concert,4 (2) failing to summon the police to eject or arrest
those throwing sod, (3) failing to have a clear, written
policy regarding the sod throwing, (4) allowing the concert to
continue after the first incident, and (5) serving alcohol.
Finally, the Court of Appeals held that the trial court
abused its discretion in denying plaintiff’s motion to amend
her complaint pursuant to MCR 2.116(I)(5). The Court of
Appeals stated that the proposed claims were legally
sufficient and were justified by the evidence. This Court
granted Pine Knob’s application for leave to appeal.5
B. LOWRY
In Lowry, plaintiff and a friend attended a Suicidal
Tendencies/Danzig/Metallica concert at Pine Knob on June 22,
4
Approximately forty security officers and eleven
officers from the Oakland County Sheriff’s Department were
working at the concert.
5
461 Mich. 987 (2000).
5
1994. Plaintiff suffers from multiple sclerosis and uses the
aid of two canes or a wheelchair. Plaintiff was seated in the
handicapped section at Pine Knob, which is located at the rear
of the pavilion immediately adjacent to the grass seating.
During the performance of Danzig, patrons seated on the lawn
of Pine Knob began throwing sod. Plaintiff was allegedly
struck with sod on the head and shoulders. Within a few
minutes, the band stopped performing and an announcement was
made requiring individuals to stop or the concert would not
continue. Alcohol sales were cut off. Deposition testimony
indicated that the sod throwing stopped within ten to fifteen
minutes and numerous individuals were ejected from Pine Knob.6
Plaintiff brought a negligence action against Pine Knob,
as well as Cellar Door Productions of Michigan, Inc., the
producer of the concert, alleging that defendants failed to
protect plaintiff from the foreseeable dangers of sod throwing
by patrons. Plaintiff also alleged that defendants violated
his rights under the Michigan Handicapper’s Civil Rights Act
(MHCRA), (now: Persons With Disabilities Civil Rights Act),
MCL 37.1101 et seq., by failing to adequately accommodate his
disability.
Defendants moved for summary disposition under MCR
2.116(C)(8) and (10), arguing that they owed no duty to
protect plaintiff from the criminal acts of third parties, and
that plaintiff’s handicap was fully accommodated. With regard
6
Approximately seventy crowd control personnel, as well
as officers from the Oakland County Sheriff’s Department, were
present at the concert.
6
to plaintiff’s premises liability claim, the trial court
granted summary disposition for defendants on the ground that
the sod throwing was unforeseeable and that defendants took
reasonable measures to protect their patrons. The trial court
also granted summary disposition for defendants on plaintiff’s
handicapper discrimination claim, holding that defendants
provided plaintiff with full and equal utilization of the
facilities.
The Court of Appeals affirmed in an unpublished per
curiam decision.7 As an initial matter, the Court of Appeals
noted that both the parties and the trial court had failed to
recognize that because Cellar Door was not the owner of the
premises, it could not have been negligent under a premises
liability theory.8 By implication, the Court also held that
Cellar Door could not have violated plaintiff’s rights under
the MHCRA. With regard to Pine Knob, the Court of Appeals
held that it owed no duty to protect plaintiff because it was
unforeseeable as a matter of law that the crowd would throw
sod at plaintiff during the concert. In that respect, the
Court of Appeals found that the instant case was factually
distinguishable from MacDonald because (1) unlike MacDonald,
in the instant case there was no evidence whatsoever that
defendants had formulated a specific policy to deal with sod
throwing incidents, (2) the sod throwing incident in this case
7
Issued June 8, 1999 (Docket No. 206875).
8
Plaintiff does not challenge this aspect of the Court of
Appeals decision. Accordingly, we deem plaintiff to have
abandoned his claims against Cellar Door.
7
occurred before the incident in MacDonald, and (3) in
MacDonald, the plaintiff was injured during the second
occurrence of sod throwing during the same concert, whereas in
this case, there were no incidents of sod throwing during the
prior evening’s performance that involved the same bands. The
Court of Appeals also held that Pine Knob fully accommodated
plaintiff’s disability.
One panel member dissented in part, arguing that
“[a]lthough plaintiff did not present evidence regarding the
number of previous sod throwing incidents or the dates and
circumstances surrounding those previous occurrences,
plaintiff nonetheless established the existence of a genuine
issue of material fact with respect to whether the sod
throwing incident at issue in this case was foreseeable.” The
dissent further suggested that the reasonableness of Pine
Knob’s conduct with respect to protecting the patrons with
disabilities from injuries should have been submitted to a
jury.
This Court granted plaintiff’s application for leave to
appeal.9
III. STANDARD OF REVIEW
We review de novo a trial court’s decision to grant or
deny summary disposition. The Herald Co v Bay City, 463 Mich.
111, 117; 614 NW2d 873 (2000). A motion for summary
disposition under MCR 2.116(C)(8) tests the legal sufficiency
of the complaint and allows consideration of only the
9
461 Mich. 987 (2000).
8
pleadings. Wade v Dep’t of Corrections, 439 Mich. 158, 162;
483 NW2d 26 (1992). 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 a right of
recovery. Id. at 163.
A motion for summary disposition pursuant to MCR 2.116
(C)(10) tests the factual support of a claim. Smith v Globe
Life Ins Co, 460 Mich. 446, 454; 597 NW2d 28 (1999). The
motion should be granted if the evidence demonstrates that no
genuine issue of material fact exists, and that the moving
party is entitled to judgment as a matter of law. Id. at 454­
455, quoting Quinto v Cross & Peters Co, 451 Mich. 358, 362­
363; 547 NW2d 314 (1996).
IV. THE DUTIES OF A MERCHANT
We recognized in Mason the general rule that merchants
"do not have a duty to protect their invitees from
unreasonable risks that are unforeseeable." Id. at 398.
Accordingly, we held that a duty arises only on behalf of
those invitees that are "‘readily identifiable as [being]
foreseeably endangered.’" Id., quoting Murdock v Higgins, 454
Mich. 46, 58; 559 NW2d 639 (1997). We further held that the
measures taken must be reasonable. Mason at 405. In the
instant cases, we are called upon to further clarify the duty
that we articulated in Mason.
Mason and its companion case, Goodman v Fortner, both
involved altercations that began in bars. In Mason, one of
the plaintiff’s friends, Dan Kanka, was involved in an
altercation with another man, Thomas Geoffrey. The plaintiff
9
was in a different area of the bar when the fight began, and
only witnessed its conclusion. The bar’s bouncers immediately
ejected Geoffrey and, in an attempt to avoid more conflict,
instructed Kanka to remain until Geoffrey left the premises.
When the plaintiff left the bar some time later, Geoffrey
assaulted him in the parking lot, breaking his nose and jaw.
Id. at 393-394. We upheld the dismissal of the plaintiff’s
resulting premises liability claim on the ground that, because
the plaintiff was not near the area where the initial fight
occurred (and the defendant had no knowledge that the
plaintiff was associated with either Kanka or Geoffrey), the
defendant had no reason to believe that the plaintiff was in
danger. Even viewed in a light most favorable to the
plaintiff, we held that the facts did not support a finding
that the attack on the plaintiff was foreseeable. Id. at 404.
In Goodman, the plaintiff’s girlfriend, Theresa Woods,
was involved in a bar room scuffle with the plaintiff’s former
girlfriend and mother of his child, Joslynn Lewis. The fight
continued in the parking lot and then moved back inside the
bar, with two of Lewis’ relatives joining the fray. Despite
repeated requests that they call the police, the bar’s
bouncers refused, although they did remove Lewis and her group
from the bar. When the plaintiff and Woods attempted to leave
the bar, Lewis and her friends were waiting out in the parking
lot, yelling at the plaintiff and threatening to kill him.
There was evidence that the bouncers standing at the door
could undoubtedly hear the commotion. One of Lewis’ friends
eventually shot the plaintiff in the chest. Id. at 395-396.
10
We upheld a jury verdict in the plaintiff’s favor on the
ground that a reasonable jury could find that the harm to the
plaintiff was foreseeable. We also held that a reasonable
jury could find that the defendant did not take reasonable
steps to prevent the plaintiff’s injury. Id. at 404-405.
As we made clear in Williams and Scott, a merchant has no
obligation generally to anticipate and prevent criminal acts
against its invitees. Indeed, as the Court of Appeals panel
in Lowry correctly noted, we have never recognized as
"foreseeable" a criminal act that did not, as in Goodman,
arise from a situation occurring on the premises under
circumstances that would cause a person to recognize a risk of
imminent and foreseeable harm to an identifiable invitee.
Consequently, a merchant’s only duty is to respond reasonably
to such a situation. To hold otherwise would mean that
merchants have an obligation to provide what amounts to police
protection, a proposition that we soundly rejected in both
Williams and Scott.10 To the extent that, in Goodman, we
relied upon evidence of previous shootings at the bar in
assessing whether a reasonable jury could find that the
Goodman plaintiff’s injury was foreseeable, we now disavow
that analysis as being flatly inconsistent with Williams and
Scott.
10
Mason cited § 344 of 2 Restatement of Torts, 2nd, and
comment f to § 344, which indicate that a merchant has a duty
to take precautions against the criminal conduct of third
persons that may be reasonably anticipated. We overrule that
portion of Mason as conflicting with Williams and Scott.
11
A premises owner’s duty is limited to responding
reasonably to situations occurring on the premises because, as
a matter of public policy, we should not expect invitors to
assume that others will disobey the law. A merchant can
assume that patrons will obey the criminal law. See People v
Stone, 463 Mich. 558, 565; 621 NW2d 702 (2001), citing Prosser
& Keeton, Torts (5th ed) § 33, p 201; Robinson v Detroit, 462
Mich. 439, 457; 613 NW2d 307 (2000); Buzckowski v McKay, 441
Mich. 96, 108, n 16; 490 NW2d 330 (1992); Placek v Sterling
Hts, 405 Mich. 638, 673, n 18; 275 NW2d 511 (1979). This
assumption should continue until a specific situation occurs
on the premises that would cause a reasonable person to
recognize a risk of imminent harm to an identifiable invitee.
It is only a present situation on the premises, not any past
incidents, that creates a duty to respond.
Subjecting a merchant to liability solely on the basis of
a foreseeability analysis is misbegotten. Because criminal
activity is irrational and unpredictable, it is in this sense
invariably foreseeable everywhere. However, even police, who
are specially trained and equipped to anticipate and deal with
crime, are unfortunately unable universally to prevent it.
This is a testament to the arbitrary nature of crime. Given
these realities, it is unjustifiable to make merchants, who
not only have much less experience than the police in dealing
with criminal activity but are also without a community
deputation to do so, effectively vicariously liable for the
criminal acts of third parties.
12
Having established that a merchant’s duty is to respond
reasonably to criminal acts occurring on the premises, the
next question is what is a reasonable response? Ordinarily,
this would be a question for the factfinder. However, in cases
in which overriding public policy concerns arise, this Court
may determine what constitutes reasonable care. See Williams,
supra at 501, citing Moning v Alfono, 400 Mich. 425, 438; 254
NW2d 759 (1977). Because such overriding public policy
concerns exist in the instant cases, the question of
reasonable care is one that we will determine as a matter of
law. Williams, supra at 501. We now make clear that, as a
matter of law, fulfilling the duty to respond requires only
that a merchant make reasonable efforts to contact the police.
We believe this limitation is consistent with the public
policy concerns discussed in Williams.
In Williams, supra, the plaintiff was shopping in the
defendant’s store when an armed robbery occurred. As the
plaintiff, a store patron, attempted to flee, the robber shot
him. The plaintiff sued the defendant store, alleging that it
breached its duty to exercise reasonable care in part by not
providing armed and visible security guards for the security
of the store’s patrons. Id. at 497. This Court held that a
merchant’s duty of reasonable care does not include providing
armed, visible security guards to deter criminal acts of third
parties. Id. at 501. We reasoned that such a duty is vested
in the government alone, and that to shift the burden to the
private sector "would amount to advocating that members of the
public resort to self-help. Such a proposition contravenes
13
public policy." Id. at 503-504. We further explained that
[t]o require defendant to provide armed, visible
security guards to protect invitees from criminal
acts in a place of business open to the general
public would require defendant to provide a safer
environment on its premises than its invitees would
encounter in the community at large. Defendant
simply does not have that degree of control and is
not an insurer of the safety of its invitees. [Id.
at 502.]
The rationale of this Court in Williams for not requiring
merchants to provide security guards to protect invitees from
the criminal acts of third parties is the same rationale for
not imposing on merchants any greater obligation than to
reasonably expedite the involvement of the police. That is,
the duty to provide police protection is vested in the
government. Williams, supra at 501. To require a merchant to
do more than take reasonable efforts to expedite the
involvement of the police, would essentially result in the
duty to provide police protection, a concept that was rejected
in Williams.11 Merchants do not have effective control over
situations involving spontaneous and sudden incidents of
criminal activity. On the contrary, control is precisely what
has been lost in such a situation.12 Thus, to impose an
obligation on the merchant to do more than take reasonable
efforts to contact the police is at odds with the public
policy principles of Williams.
11
A merchant may voluntarily do more than reasonably
attempt to notify the police. However, we hold today, that a
merchant is under no legal obligation to do so.
12
In most instances, other than merely being the owner of
the business being victimized, the merchant and invitee will
be situated in roughly the same position in terms of their
vulnerability to the violent criminal predator.
14
In Scott, supra at 452, we expanded on this theme by
holding that, even where a merchant voluntarily takes safety
precautions in an effort to prevent criminal activity, "[s]uit
may not be maintained on the theory that the safety measures
are less effective than they could or should have been."
Consequently, in any case in which a factfinder, be it the
trial court or a jury, will be assessing the reasonableness of
the measures taken by a merchant in responding to an
occurrence on the premises, a plaintiff may not present
evidence concerning the presence or absence of security
personnel, or the failure to otherwise resort to self-help, as
a basis for establishing a breach of the merchant’s duty. A
jury thus must be specifically instructed in accordance with
the principles of Williams and Scott as we have outlined them
here.
To summarize, under Mason, generally merchants "have a
duty to use reasonable care to protect their identifiable
invitees from the foreseeable criminal acts of third parties."
Id. at 405. The duty is triggered by specific acts occurring
on the premises that pose a risk of imminent and foreseeable
harm to an identifiable invitee. Whether an invitee is
readily identifiable as being foreseeably endangered is a
question for the factfinder if reasonable minds could differ
on this point. See id. at 404-405. While a merchant is
required to take reasonable measures in response to an ongoing
situation that is taking place on the premises, there is no
obligation to otherwise anticipate the criminal acts of third
parties. Consistent with Williams, a merchant is not
15
obligated to do anything more than reasonably expedite the
involvement of the police. We also reaffirm that a merchant
is not required to provide security guards or otherwise resort
to self help in order to deter or quell such occurrences.
Williams, supra.
V. APPLICATION
A. MACDONALD
The Court of Appeals in MacDonald held that plaintiff
presented sufficient evidence to create a genuine issue of
material fact concerning whether the harm to her was
foreseeable. We agree that plaintiff created a jury­
submissible issue concerning whether she was readily
identifiable as being foreseeably endangered once the sod
throwing began. However, we reject the Court of Appeals
reliance on incidents previous to the day in question as a
basis for concluding that sod throwing was “foreseeable” in
this instance. The Mason duty, as clarified here, is not
based upon the general question whether a criminal act was
foreseeable, but, rather, once a disturbance occurs on the
premises, whether a reasonable person would recognize a risk
of imminent harm to an identifiable invitee. As stated, a
merchant has no obligation to anticipate the criminal acts of
third parties.
The Court of Appeals also held that a genuine issue of
material fact exists concerning whether Pine Knob took
reasonable measures in response to the sod throwing. We
disagree. Because Pine Knob already had the police present at
the concert, Pine Knob fully discharged its duty to respond.
16
Thus, we reverse the Court of Appeals decision denying Pine
Knob’s motion for summary disposition and reinstate the trial
court’s decision to grant summary disposition for Pine Knob
pursuant to MCR 2.116(C)(8) and (10).
We also reverse the Court of Appeals decision that the
trial court abused its discretion in denying plaintiff’s
motion to amend her complaint to add certain theories
including design defect, nuisance, and third-party beneficiary
claims and to more specifically set forth her negligence
claim. We conclude that plaintiff’s amendment would have been
futile.
B. LOWRY
In contrast with MacDonald, the Court of Appeals panel in
Lowry relied solely on the absence of evidence concerning
previous incidents of sod throwing to uphold the trial court’s
decision granting summary disposition for Pine Knob. This too
was error. Whether Pine Knob could have anticipated that sod
throwing would be a problem does not answer the legally
relevant question whether plaintiff Lowry was foreseeably
endangered once sod throwing began on the day of plaintiff’s
attendance. However, in accordance with this opinion, because
Pine Knob already had the police at the concert, we hold that
Pine Knob had no further obligation. Pine Knob discharged its
duty to respond by having police present once the sod throwing
began. Thus, we affirm the Court of Appeals affirmance of the
trial court’s decision to grant summary disposition in favor
of Pine Knob. We also affirm the Court of Appeals decision to
uphold summary disposition in Pine Knob’s favor on plaintiff’s
17
handicapper discrimination claim. We agree that Pine Knob
fully accommodated plaintiff’s disability.
VI. RESPONSE TO THE DISSENT
The dissent accuses us of “uproot[ing] the entire basis
for imposing a duty on merchants to protect their invitees
that we expressed in Mason . . . .” Slip op, pp 4-5. We
disagree.
The principal difference between the dissent and the
majority lies in our respective attempts to reconcile our
several premises liability cases and the policies that
undergird them. The dissent seeks in effect to limit or
ignore the holdings of Williams and Scott. The majority
refuses to do so.
In its effort to explain away the tort duty policy
choices this Court adopted in Williams and Scott, the dissent
reads into Mason rationales and holdings the dissent would
have liked Mason to have adopted but which that opinion
plainly did not embrace.
We believe that the actual policy rationales of Williams
and Scott must be reconciled with the merchant’s duty set
forth in Mason. In reconciling these cases, we seek to
establish a clear rule. We reject the premises liability rule
that the dissent proposes because (1) it provides little
guidance to any premises owner concerning its obligations
under law and (2) despite its claims to the contrary, the
dissent’s rule would unfairly expose merchants in high-crime
areas to excessive tort liability and increase the pressure on
18
commercial enterprises to remove themselves from our troubled
urban and high-crime communities. Mason undeniably cites
2 Restatement Torts, 2d, § 344, and comment f.13 However, in
quoting that section and comment of the restatement, the Mason
majority did not “recognize” the imposition of a duty on a
merchant to protect its invitees from criminal conduct of
third parties as being “contingent upon whether the character
of his business, or past experience . . . gives the merchant
knowledge or reason to know that those acts may occur again.”
Slip op, p 4. Other than in the text of the restatement, the
“character of the merchant’s business” is not even discussed
13
The dissent cannot seriously suggest that the mere
quotation of comment f of the Restatement in Mason constituted
an adoption of it. Comment f explicitly provided that a
premises owner’s duty encompasses the responsibility to
"provide a reasonably sufficient number of servants to afford
a reasonable protection" against the criminal acts of third
parties. This proposition was flatly rejected in both
Williams and Scott. See Williams at 502-503 and Scott, supra.
Nevertheless, “this Court is not, nor is any other court,
bound to follow any of the rules set out in the Restatement.”
Rowe v Montgomery Ward, 437 Mich. 627, 652; 473 NW2d 268
(1991). “[T]he application of a common-law rule to a
particular set of facts does not turn on whether those facts
can be characterized in the language of the Restatement.”
Smith v Allendale Mutual Ins Co, 410 Mich. 685, 712-13; 303
NW2d 702 (1981). While the drafters of the Restatements “may
sometimes strive to choose ‘the better rule’ or to predict or
shape the development of the law, its influence depends upon
its persuasiveness.” Id. at 713 (emphasis added).
Even where a particular Restatement section
has received specific judicial endorsement, cases
where that section is invoked must be decided by
reference to the policies and precedents underlying
the rule restated. Textual analysis of the
Restatement is useful only to the extent that it
illuminates these fundamental considerations. [Id.
(emphasis added).]
Further, our rejection of § 344, and comment f, is consistent
with the overriding public policy concerns discussed in this
opinion.
19
in Mason. Nor did we “implicitly note” in Mason that a
careful consideration of the facts in each case, namely, the
nature of the harm, etc., is essential in determining whether
a § 344 analysis is justified. Thus, the dissent ingeniously
injects concepts into Mason that clearly were not adopted by
the Mason court.
The dissent attempts to distinguish Williams from Mason
and the instant cases by explaining that Williams involved
"random crime” "unrelated to the character of the merchant’s
business", slip op, p 8, and asserting that the sod-throwing
incidents in these cases were “related” to Pine Knob’s
business because the nature of the harm was created by the
“character” of its business. We do not agree with the
dissent’s focus on the “randomness” or spontaneity of a
criminal act as being a relevant factor in determining whether
an occurrence was foreseeable. The key inquiry is not whether
the criminal act was "random," but rather whether, as stated
in Mason, the merchant has reason to recognize a risk of
imminent harm to an identifiable invitee. In Williams, the
merchant had no reason to expect the criminal attack. In
Mason, we distinguished Williams and Scott by explaining that
in Williams and Scott "[t]he merchants had had no previous
contact with the assailants and could not have determined that
the plaintiffs were in danger." Mason, supra at 402. The
rule set forth in this opinion is thus consistent with Mason
as well as Williams and Scott: A merchant should not be
20
expected to anticipate any type of criminal activity, whether
"random" or otherwise, before there is some specific activity
on the premises creating a foreseeable risk of imminent harm
to an identifiable invitee.14 The merchant then must make
efforts to notify those deputized to deal with such
circumstances: the police.
Moreover, none should be mistaken that the test of
“relatedness” proposed by the dissent would apply, if not now,
then very soon, to virtually all criminal acts in commercial
establishments. It cannot be questioned that there can always
be, given crime’s unfortunate pervasiveness, a plausible
argument that the criminal being drawn to the business
enterprise at all makes it “related” in such a way as to
trigger liability.15 Surely after one crime has occurred on
the premises, or even in a similar business, with the criminal
14
Mason distinguished Williams by analyzing the merchant's
ability to foresee imminent harm, i.e., awareness of a
situation. However, as articulated in this opinion, we would
not go so far as to consider specific prior incidents, as that
would conflict with the general proposition in Williams and
Scott that merchants are “ordinarily” not legally responsible
to patrons and others on their premises for the criminal acts
of third parties, as well as the premise that a merchant can
assume that others will obey the criminal law until they
actually do otherwise. See slip op, pp 11-13.
15
The “relatedness” test proposed by the dissent states:
If the nature of the harm is random and
spontaneous, and thus unrelated to the character of
the merchant’s business, the merchant cannot be
expected to foresee its occurrence, and reference
to prior similar occurrences is not justified. If
the nature of the harm was created by the character
of the merchant’s business, reference to prior
similar occurrences is justified because a merchant
can be expected to foresee such harm happening
again, in light of his prior experience with such
acts. Slip op, p 8.
21
having been arguably drawn to that business, the “relatedness”
test will be met. Indeed, probably even more attenuated
linkages (the crime rate in the area comes to mind) will
suffice, as the law develops, to establish “relatedness.”
This will all mean, and it was this the Williams and Scott
courts understood, that urban merchants will be exposed to
crippling tort liability.
Thus, the dissent’s rule would have its most pernicious
and devastating effect on the many commercial businesses that
are located in Michigan’s urban and high-crime areas.
Avoiding this kind of adverse effect was one of the Court’s
primary concerns when it adopted the Williams and Scott
principles.16
It simply cannot be gainsaid that businesses in
urban and high-crime areas do foresee that criminals may
attack their establishments—opportunistically or with
premeditation. Indeed, the fact that many businesses in our
16
Imposing liability on the business owner, poses the
threat that businesses may move away from high crime areas.
See Homant & Kennedy, Landholder Responsibility for Third
Party Crimes in Michigan: An Analysis of Underlying Legal
Values, 27 U Tol L Rev 115, 147 (1995). See also McNeal v
Henry, 82 Mich. App. 88, 90, n 1; 266 NW2d 469 (1978), stating:
In the majority of urban communities, both
large and small businesses could not bear the heavy
insurance burden which would be required to protect
against this extraordinary kind of liability. Some
of our big cities have more than their share of
destructive and violent persons, young and old, who
roam through downtown department stores and other
small retail businesses stealing and physically
abusing legitimate patrons. Guards are placed in
the stores but those activities continue. We fear
that to hold businessmen liable for the clearly
unforeseeable third-party torts and crimes incident
to these activities would eventually drive them out
of business.
22
urban and high-crime areas erect barriers to protect their
employees is ample proof that they actually anticipate crime
occurring in their establishments. Plainly stated, their
precautions give proof that they understand that criminal acts
in their establishments are not “random” as the dissent would
understand it, but rather are foreseeable risks related to the
business.
For these policy reasons, we, as the courts before us,
decline to adopt the dissent’s proposed rule.
VII. CONCLUSION
Consistent with our decisions in Williams, Scott, and
Mason, we conclude that merchants have a duty to respond
reasonably to situations occurring on the premises that pose
a risk of imminent and foreseeable harm to identifiable
invitees. We hold that the duty to respond is limited to
reasonably expediting the involvement of the police, and that
there is no duty to otherwise anticipate the criminal acts of
third parties. Finally, we reaffirm that merchants are not
required to provide security personnel or otherwise resort to
self-help in order to deter or quell such occurrences.
In MacDonald, we reverse the Court of Appeals decision
denying summary disposition. In Lowry, the decision of the
Court of Appeals to grant summary disposition for Pine Knob is
affirmed.
CORRIGAN , C.J., and WEAVER , TAYLOR , and MARKMAN , JJ.,
concurred with YOUNG , J.
23
S T A T E O F M I C H I G A N
SUPREME COURT
MOLLY MACDONALD,
Plaintiff-Appellee,
v No. 114039
PKT, INC, known as PINE KNOB MUSIC
THEATER, and ARENA ASSOCIATES,
jointly and severally,
Defendants-Appellants,
and
CAPITAL CITIES/ABC, INC,
Defendant.
________________________________
STEPHEN L. LOWRY,
Plaintiff-Appellant,
v No. 115322
CELLAR DOOR PRODUCTIONS OF MICHIGAN,
INC, a Michigan corporation, and
ARENA ASSOCIATES INC, d/b/a PINE
KNOB MUSIC THEATER, jointly and
severally,
Defendants-Appellees.
________________________________
CAVANAGH, J. (dissenting).
The majority holds that under Mason v Royal Dequindre,
Inc, 455 Mich. 391; 566 NW2d 199 (1997), a merchant has a duty
to “respond reasonably to situations occurring on the premises
that pose a risk of imminent and foreseeable harm to
identifiable invitees,” and the duty to respond entails
nothing more than the merchant’s attempt to contact the
police. Slip op at 2. This artful formulation of the Mason
duty removes any inquiry into prior similar occurrences as
part of the foreseeability analysis, reducing the
foreseeability question to whether a merchant should have
known that an ongoing occurrence on the premises could have
harmed an identifiable invitee. Because the majority created
this formulation of the Mason duty with brazen disregard for
the principles that created it, I respectfully dissent.
I
In Mason, we had to determine whether merchants have a
common-law duty to protect their patrons from criminal acts of
third parties. To resolve this question, we examined the
rationale behind imposing a duty on a person to protect
another person endangered by a third party’s conduct.
Generally, a person has no duty to protect another person
endangered by a third party’s conduct unless there is a
special relationship between those persons. The reason for
this exception to the general no-duty rule when a special
relationship is present is based on control. As we explained,
“In each situation one person entrusts himself to the control
and protection of another, with a consequent loss of control
to protect himself. The duty to protect is imposed upon the
person in control because he is best able to provide a place
of safety.” Mason at 398. Thus, while merchants are not
insurer’s of their invitees’ safety, we recognized that courts
will impose a duty on a merchant to protect its invitees, like
the duty imposed when a special relationship is present, when
they are “readily identifiable as [being] foreseeably
2
endangered.” Id. at 398, quoting Murdock v Higgins, 454 Mich.
46, 58; 559 NW2d 639 (1997).
After exploring the basis for imposing a duty on a
merchant to protect its invitees, we explained that these same
principles are embodied in 2 Restatement Torts, 2d, § 344,
pp 224-225, and comment f to § 344, pp 225-226. The
Restatement further explains how control and foreseeability
govern a landowner’s liability to its invitees. Section 344
provides:
A possessor of land who holds it open to the
public for entry for his business purposes is
subject to liability to members of the public while
they are upon the land for such a purpose, for
physical harm caused by the accidental, negligent,
or intentionally harmful acts of third persons or
animals, and by the failure of the possessor to
exercise reasonable care to
(a) discover that such acts are being done or
are likely to be done, or
(b) give a warning adequate to enable the
visitors to avoid the harm, or otherwise to protect
them against it.
Comment f to § 344 states:
Since the possessor is not an insurer of the
visitor’s safety, he is ordinarily under no duty to
exercise any care until he knows or has reason to
know that the acts of the third person are
occurring, or are about to occur. He may, however,
know or have reason to know, from past experience,
that there is a likelihood of conduct on the part
of third persons in general which is likely to
endanger the safety of the visitor, even though he
has no reason to expect it on the part of any
particular individual. If the place or character
of his business, or his past experience, is such
that he should reasonably anticipate careless or
criminal conduct on the part of third persons,
either generally or at some particular time, he may
be under a duty to take precautions against it, and
to provide a reasonably sufficient number of
servants to afford a reasonable protection.
3
In quoting § 344 and comment f, we recognized that the
imposition of a duty on a merchant to protect its invitees
from criminal conduct of third parties is contingent upon
whether the character of his business, or past experience
either in general or at a specific time, gives the merchant
knowledge or reason to know that those acts may occur again.
As noted in the quoted sections of the Restatement, this
analysis includes a consideration of whether such acts had
occurred in the past.
Following these premises liability principles, we held
that “merchants can be liable in tort for failing to take
reasonable measures to protect their invitees from harm caused
by the criminal acts of third parties. The harm must be
foreseeable to an identifiable invitee and preventable by the
exercise of reasonable care.” Id. at 393. Clearly, our
holding in Mason was premised on tort principles that require
a look into the character of the merchant’s business and prior
similar occurrences to determine whether the harm is
foreseeable.
The majority introduces a version of the Mason duty that
ignores the basis of our holding in Mason and instead holds
that under Mason, a merchant has a duty to respond to ongoing
frays on the premises, and the duty is only to make an effort
to contact the police. This formulation essentially uproots
the entire basis for imposing a duty on merchants to protect
their invitees that we expressed in Mason by extinguishing the
consideration of the character of the merchant’s business and
prior similar occurrences when deciding if the harm was
4
foreseeable. Instead, the majority limits the foreseeability
question to whether this particular fray would have harmed
this particular plaintiff, without citing any legal support
for its decision to alter the duty.
In reformulating the Mason duty, the majority overrules
Mason to the extent that it relied on § 344 and comment f of
the Restatement which clearly refutes the majority’s clarified
version of the Mason duty. Slip op at 13, n 10. The reason
the majority states for overruling this part of Mason is that
§ 344 and comment f are contrary to our holding in Williams v
Cunningham Drug Stores, Inc, 429 Mich. 495; 418 NW2d 381
(1988). In Williams, we stated that merchants are not
ordinarily responsible for criminal acts of third parties
because it is against public policy to require a merchant to
anticipate crime in the community that may harm its invitees.
The majority claims that the only way to reconcile Williams
with the Mason holding that a merchant may be liable when the
criminal act that harmed its invitee was foreseeable is to say
that a merchant only has a duty to “respond reasonably to such
a situation.” Slip op at 12-13. Furthermore, the majority
concludes that the duty entails only making an effort to
contact the police because Williams prevents the imposition of
any further act. The majority fails to recognize, however,
that a new formulation of the Mason duty is not necessary in
light of Williams because we distinguished Williams when we
decided Mason.
According to the majority, Williams closed the door to
applying § 344 when deciding whether a merchant has a duty to
5
protect its invitees from criminal acts because merchants
cannot anticipate crime. A close reading of Williams,
however, reveals that is not true. In Williams, we recognized
§ 344, but refused to apply it to the facts because the nature
of the harm, random crime in the community unrelated to the
merchant’s business, presented the merchant with no degree of
control over its prevention. Williams at 501, n 15. Thus,
contrary to the majority’s assertion, we recognized in
Williams that application of § 344 depends on the facts of a
case, i.e., the nature of the harm and degree of control a
merchant had in each case.
In Mason, we discussed the Williams’ decision and cited
Justice Levin’s dissent in Alexander v American Multi-Cinema,
450 Mich. 877; 540 NW2d 674 (1995), as support for
distinguishing the Williams holding. Mason at 401-402, n 5.
In Alexander, a theater patron was injured in a scuffle with
another patron who was standing in line for a late night show.
Justice Levin dissented from the majority’s decision to deny
leave, stating that he would grant leave to discuss a
merchant’s duty to protect its invitees from the criminal acts
of third parties. Quoting § 344, Justice Levin explained
that, although no invitor is automatically liable for criminal
acts of third parties on the invitor’s property, an invitor
has a duty to act reasonably to protect invitees from
foreseeable hazards. Alexander at 879-880. Distinguishing
Williams on its facts, Justice Levin explained that the
merchant in Williams was not faced with a foreseeable
altercation because the merchant had no control over the
6
random, spontaneous nature of the harm. Thus, Williams
addressed “the random assault bearing no relation to the
merchant’s business, and did not address the merchant’s
liability for risks created by the merchant’s business.” Id.
at 882. Noting that this distinction is relevant, Justice
Levin stated that although we have held that “a merchant is
not ordinarily required to protect customers from the criminal
acts of third persons, . . . [i]f one assumes that a situation
created by the defendant will be classified as extraordinary,
the distinction then becomes relevant.” Id. at 881 (emphasis
added). Thus, if the merchant created the situation that led
to the harm, the situation can be treated as extraordinary and
a merchant can be liable for the criminal acts that harmed its
patrons, if the acts were foreseeable. Justice Levin noted
that the facts in Alexander created such an extraordinary
situation because the scuffle between the patrons waiting in
line “was foreseeable in light of the owner’s considerable
experience with crowd control in general, and handling and
organizing the pretheater crowd in particular.” Id.
Contrary to the majority’s assertion that the Mason
holding is inconsistent with Williams, in Mason we recognized
Justice Levin’s dissent in Alexander as the method to
distinguish the Williams holding and created a duty based on
§ 344 that essentially focused on the nature of the harm, the
foreseeability of the harm, and the control a merchant has
over the harm. We implicitly noted that a careful
consideration of the facts in each case is essential to
determine whether a § 344 analysis is justified. If the
7
nature of the harm is random and spontaneous, and thus
unrelated to the character of the merchant’s business, the
merchant cannot be expected to foresee its occurrence, and
reference to prior similar occurrences is not justified. If
the nature of the harm was created by the character of the
merchant’s business, reference to prior similar occurrences is
justified because a merchant can be expected to foresee such
harm happening again, in light of his prior experience with
such acts. Accordingly, we concluded that “merchants have a
duty to use reasonable care to protect their identifiable
invitees from the foreseeable criminal acts of third parties.”
Mason at 405. Our decision in Mason was therefore clearly
based on a careful consideration of the common-law tort
principles of control and foreseeability, as articulated in
§ 344, and how they coexist with the holding in Williams.
Thus, clarification of the Mason duty is not necessary, as
that decision clearly acknowledged how the control and
foreseeability origins of § 344 may apply to certain factual
scenarios without violating our holding in Williams.
II
As the preceding discussion illustrates, premises
liability law contains many nuances that, without complete
consideration, may appear inconsistent. The majority has
seized on this apparent, but vacuous, inconsistency and held
that a clarification is necessary in this area of law.
However, read closely, the principles have distinguishing
characteristics that allow them to exist without conflict in
three separate categories.
8
(1) Traditional Premises Liability
Traditionally, a merchant has had a duty to protect its
invitees from defects or dangerous conditions on the land of
which the merchant knew or had reason to know.
(2) Hybrid Premises Liability
Under hybrid premises liability, a merchant has a duty to
protect its invitees from activities involving actors on the
premises of which a merchant knew or had reason to know. The
tricky part, however, is when the activity consists of
criminal acts by third parties. If the activity on the land
is a criminal act, it must be determined whether the character
of the merchant’s business and the nature of the act are of a
sort that a merchant could be expected to anticipate. If the
nature of the criminal act is random, spontaneous, and thus
unrelated to the merchant’s business and the invitee’s purpose
for being there, the situation falls into category three,
discussed below. If, however, the nature of the criminal act
is not random or spontaneous, and is related to the merchant’s
business and the invitee’s purpose on the premises, as
explained in Mason and Justice Levin’s dissenting opinion in
Alexander, we resort to the control and foreseeability origins
of § 344 to determine whether the merchant has a duty. See
Prosser & Keeton, Torts (5th ed), § 61, p 428 (stating that a
possessor of land is required to take action when he has
reason to believe, from what he has observed or from past
experience, that the conduct of others on the land will be
dangerous to other invitees, but not when the landowner cannot
anticipate the harm).
9
(3) The Exception To Hybrid Liability
The exception to hybrid liability is when there is a
criminal act by third parties on the premises, but the act is
random and spontaneous, having no relation to the merchant’s
business other than that it is a business, the merchant has no
duty. In the exception situation, the random, spontaneous
nature of the act removes any degree of control a merchant has
over the act occurring, thus making any application of the
control and foreseeability origins of § 344 improper. See,
e.g., Williams.
III
The facts of these cases must be examined to determine
which of the three premises liability categories governs.
Because the harm did not result from a physical defect on the
premises, the act does not fall within the traditional
premises liability category. Rather, the harm resulted from
activity on the land, potentially criminal in nature, which
requires us to decide whether the nature of the act qualifies
it as a hybrid or exception situation. The character of
defendant Pine Knob’s business created the risk of harm to its
invitees, by subjecting its patrons to view concerts in a
venue where sod throwing had previously occurred. The sod
throwing in these cases was, therefore, not random or
spontaneous, was related to the invitee’s purpose on the
premises, qualifying these cases under the hybrid category,
and thus justifies applying the control and foreseeability
origins of § 344.
Pine Knob charges its patrons to enter its forum to watch
10
concerts, where part of the seating area for patrons is a sod­
covered hill. Once the patron sets foot inside the venue, he
has entrusted himself to the control and protection of Pine
Knob, and his ability to protect himself from activities that
may occur on the premises diminishes. Thus, contrary to the
majority’s claim, Pine Knob has better control over the
activities of patrons it has chosen to host than the patrons
themselves. The potentially criminal activity in these cases
that occurred in this controlled environment was patrons
ripping up sod from the hill and throwing it. The question
becomes whether this act arose from the character of Pine
Knob’s business, or was random or spontaneous. The majority
has manipulated the class of activity at issue in this case,
sod throwing, to be strictly criminal. In so doing, the
majority ignores the fact that this activity, albeit
potentially criminal,1 only occurred because of the nature of
Pine Knob’s business. In other words, a patron at Pine Knob
would not be subjected to injury from such a concert activity
like sod throwing if he were not present on Pine Knob’s
premises; it is unique to Pine Knob’s business. Because Pine
Knob charged a fee for entry, subjected its patrons to seating
on sod-covered ground, sod-throwing acts had occurred before,2
and the harm suffered was a result of plaintiffs’ purpose on
1
The record indicates that some 100 sod-throwing patrons
were ejected from the premises, pursuant to Pine Knob’s
policy.
2
In Lowry, the sod throwing occurred once before at the
same festival-type music concert, and in MacDonald it occurred
twice in one night.
11
the premises and the nature of Pine Knob’s business, to watch
concerts at such a venue, I would find this an “extraordinary”
situation, unlike that in Williams. These factors justify
imposing a duty on Pine Knob. Pine Knob not only created the
risk of harm to its invitees, but it had reason to know that
such sod throwing may occur again, on the basis of its prior
experience with such activity. This act is therefore unlike
the random, spontaneous criminal act that occurred in
Williams, which had nothing to do with the nature of the store
owner’s business, and the concerns of applying the control and
foreseeability concepts do not arise. It thus becomes clear
that the majority’s overstated concern for subjecting
merchants in high crime areas to increased liability is
misplaced. Random crimes in the community are unique to the
community, not to the businesses present in that community.
Hence, the initial analysis, as proposed by Justice Levin and
further explained in § 344, focuses on whether the act that
injured the patron is unique to the merchant’s business, not
the location of the merchant’s business. If the act is unique
to the merchant’s business, only then is it justifiable to say
that the merchant has control over such acts and, thus, can
foresee such future occurrences. Thus, retaining the control
and foreseeability origins of § 344 in this situation does not
vitiate the Williams holding, and Pine Knob should be held
liable if a jury finds that the sod throwing was a foreseeable
act and Pine Knob failed to take reasonable measures to
protect its invitees from such foreseeable harm.
IV
12
Today the majority embarks on the unnecessary journey of
clarifying the duty a merchant has to protect its invitees
from criminal acts of third parties, as discussed in Mason.
This clarification takes premises liability into an unfounded
direction with far-reaching consequences.3 By eradicating the
two profound tenets behind the Mason duty, control and
foreseeability, the majority has created an unprecedented
formulation of the duty providing that if the act that caused
the harm could be charged as criminal, the merchant can never
be liable if it attempts to contact the police. Such a
conclusion ignores an entire category of criminal acts that
arise solely because of the character of the merchant’s
3
The following hypothetical example illustrates the
fundamental problems with the majority’s reformulation.
Defendant humane society allows persons interested in
adopting animals to observe the animals through cages. There
is a separate “dog wing” in which all the dogs are kept in
individual cages. Patrons on the premises interested in
adopting a dog are allowed access to the dog wing. A patron
who is visiting the dog wing gets increasingly passionate
about the dogs being cooped up and breaks open each cage,
setting the dogs free. The dogs become scared and attack a
family who was there adopting their new pet. Unfortunately,
one of the children is severely injured. The humane society
is familiar with this “passionate patron” syndrome, and it in
fact occurred the previous day, killing a patron. Luckily for
the humane society, under the majority’s clarified Mason duty,
this previous attack will not be considered, regardless of the
number of times the attacks have happened, the humane
society’s experience with controlling the animals on its
premises, and the experience the humane society has with the
harm caused by “passionate patrons.” Rather, in the midst of
watching the dogs viciously attacking patrons, all the humane
society must do to avoid liability to the injured patrons is
to make the effort to call the police. Thus, even though the
character of the business created the risk of harm, the humane
society had past experience with such mishaps, and the degree
of control the humane society has over its patrons was great,
there is no duty to protect. I cannot agree that this is a
proper formulation of the duty.
13
business and the invitee’s purpose on the premises. Because
this was clearly not intended when we created the Mason duty,
I dissent.
In accordance with the original, unclarified Mason duty,
in both of the instant cases I would deny summary disposition
so that a jury may determine (1) whether the sod throwing was
foreseeable, (2) whether the plaintiffs were identifiable
invitees, and (3) whether defendant Pine Knob took reasonable
measures to protect its invitees from the harm.
KELLY , J., concurred with CAVANAGH , J.
14