Mary Lynn Zarembski-Cole v. Bedrock Management Services LLC ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
MARY LYNN ZAREMBSKI-COLE, a/k/a UNPUBLISHED
MARY LYNN ZEREMBSK-COLE, March 10, 2016
Plaintiff-Appellant,
v No. 324795
Wayne Circuit Court
BEDROCK MANAGEMENT SERVICES, L.L.C., LC No. 13-014188-NO
d/b/a BEDROCK REAL ESTATE SERVICES,
Defendant/Third-Party Plaintiff-
Appellee,
and
GUARDSMARK, L.L.C.,
Third-Party Defendant.
Before: M. J. KELLY, P.J., and CAVANAGH and SHAPIRO, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting defendant Bedrock Management Services’
motion for summary disposition and dismissing this premises liability action. We affirm.
Plaintiff was attacked in the lobby of the office building where she worked by a woman
named Carolyn Winfrey. Winfrey had attacked another employee working in that building about
three months earlier. Defendant owned the building and provided security services through a
contractor, Guardsmark, L.L.C. Plaintiff sued defendant, alleging that it breached a duty of care
owed to her as a tenant in that building.
Eventually defendant moved for summary disposition, arguing that it did not have a duty
to anticipate, prevent, or protect against criminal acts of a third party perpetrated against an
unidentified person, even if there had been a similar attack against another person in the past.
Defendant argued that it fulfilled its duty owed to plaintiff because the police were called when
plaintiff was attacked, i.e., after she had been identified as a potential victim. Plaintiff responded
to defendant’s motion, arguing that defendant owed a heightened duty to maintain the common
areas of its building so that it was reasonably safe for its tenants and Winfrey posed a foreseeable
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risk of harm to anyone in her vicinity. The trial court agreed with defendant, holding that
defendant fulfilled its limited duty of care to promptly notify the police after plaintiff was
attacked during this unforeseeable criminal act and granted defendant’s motion for summary
disposition. This appeal followed.
On appeal, plaintiff argues that the trial court erred in granting defendant’s motion for
summary disposition because defendant owed her a duty of care with regard to the criminal act
perpetrated by Winfrey. We disagree.
We review de novo the decision to grant summary disposition. Walsh v Taylor, 263
Mich. App. 618, 621; 689 NW2d 506 (2004). Because the trial court considered documentary
evidence beyond the pleadings, we analyze the motion as granted under MCR 2.116(C)(10). A
motion filed under MCR 2.116(C)(10) tests whether a claim has adequate factual support. Id.
“[T]his Court considers the pleadings, admissions, affidavits, and other relevant documentary
evidence of record in the light most favorable to the nonmoving party to determine whether any
genuine issue of material fact exists to warrant a trial.” Id. The issue whether a defendant owes
a plaintiff a duty of care is a question of law considered de novo on appeal. Hill v Sears,
Roebuck & Co, 492 Mich. 651, 659; 822 NW2d 190 (2012).
In Bailey v Schaaf, 494 Mich. 595, 604; 835 NW2d 413 (2013), our Supreme Court stated
that our common law imposes a duty of care when a special relationship exists such as between a
landlord and its tenants and their invitees. With regard to liability for the criminal acts of third
parties, the Bailey Court described the evolution of applicable law as including that, in Mason v
Royal Dequindre, Inc, the Court held: “merchants have a duty to use reasonable care to protect
their identifiable invitees from the foreseeable criminal acts of third parties.”1 Id. at 612-613.
However, the Bailey Court noted, the scope of the merchant’s duty was later clarified in
MacDonald v PKT, Inc, which held: “The duty is triggered by specific acts occurring on the
premises that pose a risk of imminent and foreseeable harm to an identifiable invitee. . . . 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.”2 Id. at 613-614. In Bailey, the “scope of the duty with regard to residential or
commercial landlords” was articulated. Id. at 614.
The Bailey Court held:
In keeping with the traditional common-law understanding that landlords
and merchants share a similar level of control over common areas that are open to
their tenants and other invitees, and thus assume the same duty of reasonable care
with regard to those common areas, we hold that a landlord’s duty regarding
criminal acts of third parties is limited to and coextensive with the duty articulated
in MacDonald. Thus, a landlord has a duty to respond by reasonably expediting
1
Mason v Royal Dequindre, Inc, 455 Mich. 391, 405; 566 NW2d 199 (1997).
2
MacDonald v PKT, Inc, 464 Mich. 322, 338; 628 NW2d 33 (2001).
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police involvement where it is given notice of a specific situation occurring on the
premises that would cause a reasonable person to recognize a risk of imminent
harm to an identifiable invitee.
Like a merchant, a landlord can presume that tenants and their invitees
will obey the criminal law. Because of the unpredictability and irrationality of
criminal activity, 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 tenant or invitee. Only when given notice of
such a situation is a duty imposed on a landlord. Notice is critical to [the]
determination whether a landlord’s duty is triggered; without notice that alerts the
landlord to a risk of imminent harm, it may continue to presume that individuals
on the premises will not violate the criminal law. [Bailey, 494 Mich. at 614-615
(quotation marks and citations omitted; emphasis in original).]
In this case, plaintiff failed to establish that a genuine issue of fact existed on the issue
whether defendant’s duty was triggered before she was attacked. The record contains no
evidence giving rise to a reasonable suspicion or notice that plaintiff was an identifiable person
who faced a risk of imminent harm from Winfrey until she assaulted plaintiff without
provocation in the lobby of the building. The submitted evidence shows that a security guard
noticed Winfrey enter the building, approach the building directory, “and stand there for a few
minutes.” He approached Winfrey and asked if she needed assistance. Winfrey responded that
she wanted to find the Honigman law offices. After she was told its location, Winfrey responded
“Okay,” and stated that she wanted to continue looking “at the directory for a while.” The
security guard then turned his attention back to the security desk. Shortly thereafter, he heard a
woman scream. He then saw plaintiff lying on the lobby floor near Winfrey, who had been
disarmed of a kitchen knife, and a bystander was lying on top of Winfrey.
Plaintiff told police officers that she had been “walking in the lobby area,” that Winfrey
approached her with a knife, and then Winfrey lunged at her four times during the assault. There
is no evidence suggesting that plaintiff and Winfrey shared any connection before the assault.
Plaintiff worked on the 16th floor of the building for the Detroit Law Department, an entity
distinct from the Honigman law firm that Winfrey had mentioned. The parties do not dispute
that Winfrey was arrested about three months earlier for assaulting a Honigman employee who
worked at the building. However, that prior assault has no relationship to a potential attack of
this plaintiff. See Bailey, 494 Mich. at 599-600.
Defendant’s duty of care to plaintiff would have been triggered only after having “notice
of a specific situation occurring on the premises that would cause a reasonable person to
recognize a risk of imminent harm to an identifiable invitee.” Bailey, 494 Mich. at 614 (citation
and internal quotation marks omitted). Because the record reveals that no reasonable risk of
imminent harm to plaintiff existed until Winfrey attacked plaintiff, we conclude that defendant
did not owe plaintiff a duty of care until the time of the attack. Defendant then satisfied the
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limited standard of care to respond by reasonably expediting police involvement.3 Accordingly,
the trial court properly granted defendant’s motion for summary disposition.
Affirmed.
/s/ Michael J. Kelly
/s/ Mark J. Cavanagh
/s/ Douglas B. Shapiro
3
We reject plaintiff’s claim that the circuit court prematurely granted summary disposition under
MCR 2.116(C)(10). Plaintiff has not identified any specific evidence she anticipated producing
that arguably could have created grounds to find that defendant violated a duty. See Liparoto
Constr, Inc v Gen Shale Brick, Inc, 284 Mich. App. 25, 33-34; 772 NW2d 801 (2009) (observing
that (C)(10) summary disposition qualifies as premature “if discovery has not been completed
unless there is no fair likelihood that further discovery will yield support for the nonmoving
party’s position”).
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