Diomedi v. Total Petroleum, Inc , 181 Mich. App. 789 ( 1989 )

181 Mich. App. 789 (1989) 450 N.W.2d 91

DIOMEDI
v.
TOTAL PETROLEUM, INC

Docket No. 108396.

Michigan Court of Appeals.

Decided December 28, 1989.

Robert L. Henry, Jr., and Stephen K. Postema, for plaintiff.

Cummings, McClorey, Davis & Acho, P.C. (by Edward E. Salah and Marcia L. Howe), for defendants.

Before: MAHER, P.J., and MARILYN KELLY and H.E. DEMING,^[*] JJ.

PER CURIAM.

Corporate defendants, by leave granted, appeal the trial court's denial of their motion for summary disposition filed pursuant to MCR 2.116(C)(8) and (C)(10). We affirm.

Plaintiff's complaint alleged that she stopped at a gas station-convenience store, owned by the corporate defendants, and approached the lighted, glassed-in booth in which defendant Walker, an employee of the corporate defendants, was sitting. When plaintiff asked Walker for directions, a man standing outside of the booth and speaking with Walker offered to give her directions. The man led plaintiff a short distance from the booth and, while on the corporate defendants' property, grabbed her. Another man, who had a gun, appeared and took the keys to plaintiff's car. Plaintiff screamed and struggled, without success. The two men abducted her and raped her at another location. According to plaintiff, her car was stolen.

Plaintiff alleged in her complaint that defendant Walker and other employees of the corporate defendants were negligent by, among other things, failing to use devices, to which they had access, to alert the police to the assault being committed upon plaintiff and of which Walker and the other employees were aware. In denying summary disposition, the trial court stated:

This motion is denied. The plaintiff may pursue [sic] theory that defendant's agents knew of plaintiff's peril, saw the attack, and did not call the police or sound the burglar alarm. I'm citing Mills versus White Castle [Mills v White Castle System, Inc, 167 Mich. App. 202; 421 NW2d 631 (1988), lv den 431 Mich. 880 (1988)] for that.

The corporate defendants argue that they had no duty to insure the security of plaintiff, and such others, from the unforeseeable criminal activities of other business invitees. In support of their argument, they cite Williams v Cunningham Drug Stores, Inc, 429 Mich. 495; 418 NW2d 381 (1988). In Williams, the plaintiff customer of a retail merchant was present during an armed robbery. When the customer left the store, he was shot by the robber. The customer claimed that, as a matter of law, the merchant was required to provide armed, visible security guards in the exercise of reasonable care for the protection of his customers from the criminal acts of third parties. This our Supreme Court refused to declare, explaining: "The duty advanced by plaintiffs is essentially a duty to provide police protection. That duty, however, is vested in the government by constitution and statute." Williams, supra at 501.

In Mills, supra, the Court of Appeals reversed the trial court's holding that the defendant restaurant did not owe injured customers a duty to protect them from assaults by third parties. The plaintiffs in Mills alleged that they had been assaulted on the premises of the defendant and that the defendant had refused a request to call the police or to permit the use of defendant's telephone to make such a call. The Mills Court distinguished Williams, noting the difference in plaintiffs' first allegation (that defendant should have ejected intoxicated, unruly patrons from its premises) from the claim in Williams (that the defendant could have prevented the assault by providing armed and visible security guards). Mills, supra at 208. The Mills Court explained:

In fact, defendant was in a position to control the unruly patrons' actions or to eject them from its premises. Plaintiffs' allegations are sufficient to support an inference that defendant had or should have had knowledge about the unruly patrons' presence on its premises. Hence, plaintiffs did state a claim upon which relief could be granted. [Id.]

The Mills Court continued:

Moreover, to the extent that Williams suggests that merchants have no duty to intervene in a criminal act of which they become aware, id. at 497-498, we find this case distinguishable on the policy rationales discussed in Williams. Here, defendant was not asked to provide police protection to plaintiffs. Instead, defendant's employees were asked to summon the police or to allow plaintiffs' companion to summon the police. Self-help was not required and defendant was informed of the extent of the criminal activity. Hence, we believe that these specific acts alleged by plaintiffs could result in a breach of defendant's duty to exercise reasonable care for its invitees' protection and, therefore, plaintiffs did state a claim upon which relief could be granted.

Because plaintiff alleged the corporate defendants had devices with which their employees could have summoned the police or attempted to frighten off plaintiff's attackers, we are satisfied that the allegations fit within the mold of Mills, rather than the facts in Williams. For that reason, the trial court did not err in denying summary disposition.

Plaintiff seeks costs because the defendants filed their motion prior to the completion of discovery and, therefore, it was frivolous. This Court's decision to consider, prior to trial, the issue raised by defendants on appeal obviates our finding the matter to be frivolous. Plaintiff's claim for sanctions and costs pursuant to MCR 2.114 is denied.

Affirmed.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment.