Carter v. Mercury Theater Co. , 146 Mich. App. 165 ( 1985 )

146 Mich. App. 165 (1985) 379 N.W.2d 409

CARTER
v.
MERCURY THEATER COMPANY

Docket Nos. 77773, 78453.

Michigan Court of Appeals.

Decided June 20, 1985.

Ernest L. Jarrett and Goodman, Eden, Millender & Bedrosian (by George J. Bedrosian), for plaintiffs.

Highland & Currier, P.C. (by John N. Highland), for defendant.

Before: BRONSON, P.J., and J.H. GILLIS and ALLEN, JJ.

PER CURIAM.

Defendants appeal by leave granted from the denial of their motions for summary judgment.

Plaintiffs filed this personal injury action to recover damages for injuries sustained when plaintiff Andra Carter was shot and wounded on December 31, 1980, at the Mercury Theater in Detroit. He was employed at the theater as a security guard by the ACE Patrol Security Guard Service. As a result of the shooting, he was rendered a paraplegic. Through the complaint, he alleged that his assailants were two patrons whom he and a fellow guard had ejected from the theater due to their unruly and disruptive behavior. Plaintiffs theorized that the assailants regained access to the theater through fire doors which did not have working locking mechanisms, or, in the alternative, through the front doors despite the fact that theater employees were instructed not to permit readmittance to the patrons in question.

On April 13, 1984, the circuit court heard two motions for summary judgment brought pursuant to GCR 1963, 117.2, subds (1) and (3). In support of their argument that plaintiffs failed to state a claim upon which relief could be granted, defendants relied upon Turner v Northwest General Hospital, 97 Mich App 1; 293 NW2d 713 (1980), as dispositive. However, the trial court denied the motions, concluding that factual disputes as to material issues still existed, as, for instance, "whether the plaintiff was a business invitee or a licensee", the resolution of which would determine the legal duty owned to plaintiff by defendant. Since we find the issue presented by plaintiffs' claim to be indistinguishable from that presented in Turner, supra, we reverse the lower court's denial of defendants' motions.

In Turner, as here, an employee of an independent security guard company was shot and killed while on duty as a security guard in the emergency room of the defendant hospital. A complaint for wrongful death was filed by the guard's survivors, alleging ten separate areas of negligence. This Court affirmed the trial court's order granting summary judgment to the defendant after concluding that defendant "owed no duty to plaintiff's decedent to warn and protect him from the injury and violence which occurred * * *". 97 Mich App 4. The Court made the following observation:

"In this case, defendant hospital, recognizing a duty to safeguard, protect and secure its patients, visitors, doctors and other business invitees, hired an independent security guard company for that purpose. What happened to plaintiff's decedent was the very reason plaintiff's decedent and his employer were hired, i.e., to safeguard against criminal acts of violence. It would be ironic to hold defendant hospital liable to an employee of the very security guard company it hired for protection." 97 Mich App 3-4.

We find that the same conclusion is inescapable in the instant case. The facts of this case are undisputed and cannot reasonably be distinguished from those presented to this Court in Turner. Thus, defendant's motions for summary judgment pursuant to GCR 1963, 117.1(1) were improperly denied. The trial court's order of April 13, 1984, is reversed.

Reversed.