Aisner v. Lafayette Towers , 129 Mich. App. 642 ( 1983 )

129 Mich. App. 642 (1983) 341 N.W.2d 852

AISNER
v.
LAFAYETTE TOWERS

Docket No. 66146.

Michigan Court of Appeals.

Decided October 11, 1983.

Norman R. Robiner, for plaintiff.

Holahan, Malloy, Maybaugh & Monnich (by John R. Monnich), for defendants.

Before: BRONSON, P.J., and T.M. BURNS and H.E. DEMING,^[*] JJ.

PER CURIAM.

Plaintiff appeals as of right from the trial court's order granting summary judgment in favor of defendants pursuant to GCR 1963, 117.2, subds (1) and (3).

Plaintiff was robbed and sexually assaulted in the parking lot of the Lafayette Towers Apartment building on August 30, 1976, at approximately 9:30 p.m. At the time of the incident, plaintiff was on her way to visit a friend who was a tenant in the Lafayette Towers. Plaintiff commenced this negligence action alleging that defendants breached their duty to keep the premises, including the parking lot, in a reasonably safe condition and, specifically, that defendants were negligent in failing to provide sufficient lighting and security guards in the area of the parking lot. The complaint further alleged that defendants knew stringent security measures were required because (1) the apartment building was located in a high crime area, (2) two separate attacks on women had occurred in the immediate vicinity of the apartment building within the five days previous to the incident, and (3), prior to the incident, tenants of the Lafayette Towers had held meetings for the purpose of requesting better security measures in and around the building. The trial court granted summary judgment, finding, in effect, that defendants owed no duty because the Lafayette Towers was not a high crime area and, therefore, the risk to plaintiff was not foreseeable.

The Michigan Supreme Court has held that a landlord owes a duty to his tenants to protect them from unreasonable risks of harm resulting from the foreseeable criminal activities of third parties within the common areas of the landlord's premises. Johnston v Harris, 387 Mich. 569; 198 NW2d 409 (1972); Samson v Saginaw Professional Building, Inc, 393 Mich. 393; 224 NW2d 843 (1975). Stated otherwise, the landlord's duty to act arises where the risk of harm is foreseeable and the perceived risk is unreasonable. Ordinarily, the element of duty in a negligence action is one of law for the court to decide. However, where there are factual circumstances which give rise to a duty, the existence or nonexistence of those facts must be decided by a jury. Farwell v Keaton, 396 Mich. 281, 286-287; 240 NW2d 217 (1976); Graham v Ryerson, 96 Mich. App. 480, 488; 292 NW2d 704 (1980); Samson, supra, p 409.

We now turn to the trial court's ruling in the instant case. As noted previously, the order of summary judgment was based on both GCR 1963, 117.2, subds (1) and (3). In reviewing a grant of summary judgment under subrule (1), this Court assumes that the factual allegations in the plaintiff's complaint are true and determines whether the claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can permit recovery. Hill v Houghton Twp, 109 Mich. App. 614, 616; 311 NW2d 429 (1981). In this case, plaintiff's complaint did allege the requisite elements of a negligence action. Summary judgment was improperly granted under subrule (1).

It appears that the trial court's ruling was based primarily on subrule (3). In ruling on a motion grounded upon GCR 1963, 117.2(3), the trial court must examine the pleadings, admissions, depositions, affidavits, and other documentary evidence to determine whether a genuine question of fact exists as to any material issue. A trial court should give the benefit of any reasonable doubt to the party opposing the motion, and it must be satisfied that the opposing party's claim or defense cannot be supported at trial because of some deficiency which cannot be overcome. Miller v Foster, 122 Mich. App. 244; 332 NW2d 454 (1982).

Defendants rely upon plaintiff's admissions, answers to interrogatories, and the deposition of plaintiff's expert, Commander Tsampikou, in arguing that there was no material issue of fact. The substance of the discovery evidence relied upon by defendants is that only three felonies had previously occurred in the Lafayette Towers parking lot, that no rapes had previously occurred there, and, according to Commander Tsampikou's response to a hypothetical question posed by defense counsel, that the Lafayette Towers could not be considered a high crime area. However, whether crimes had occurred previously on the specific premises is only one factor in the determination of whether criminal activity was foreseeable to defendants. Of more significance, is whether the premises as a whole were located within a high crime area. We do not believe the discovery evidence pointed to by defendants resolves the factual issues in this case. Plaintiff is entitled to submit to a jury the questions of the foreseeability and the unreasonableness of the risk.

Defendants also assert that under Escobar v Brent General Hospital, 106 Mich. App. 828; 308 NW2d 691 (1981), they owed no duty to plaintiff. We disagree and find that the facts in Escobar are distinguishable from those in the present case. Escobar involved a single-family dwelling owned by a hospital which was not in the primary business of renting residences. There was nothing to suggest that the house was improperly maintained or was not equipped with lights sufficient for a residence of that nature. The Escobar Court found that the landlord had no duty to provide continuous security personnel for a residence of that nature. In contrast, the Lafayette Towers is a large multi-unit complex with an extensive parking lot. In our opinion, material issues of fact exist as to whether the risk of criminal activity was foreseeable to defendants and whether defendants acted unreasonably in failing to take adequate steps to avoid the risk.

The order of summary judgment is reversed and the case is remanded for trial.

NOTES

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