Johnston v. Harris ( 1972 )

T. M. Kavanagh, C. J.

Plaintiff was an elderly tenant in decedent’s four-unit apartment building located in the Detroit inner city. Returning home at about 7:30 p.m. on October 7, 1965, plaintiff approached the front door. As he reached for the doorknob, the door was jerked open and he was assaulted, struck and robbed by an unknown youth who was lurking in the poorly lighted, unlocked vestibule.

Plaintiff commenced action in Wayne Circuit Court against defendants’ decedent, asserting that the assault, robbery and consequent injuries were proximately caused by the failure of decedent to provide adequate lighting and door locks.

Plaintiff offered proof of the dim lighting of the porch and vestibule and the continuously unlocked outer door of the vestibule. He showed, through the testimony of a public lighting expert, the relationship between poor lighting and the high incidence of night crime. He further showed this to be a high crime area.

At the conclusion of plaintiff’s proofs the trial court, sitting without a jury, granted defendants’ “motion for a directed verdict of no cause of action,” stating it was not persuaded “that there was any degree of fault on the part of the landlord which could be declared to be the contributing or direct proximate cause for the injury that befell the plain-■j-j-g; * * # ??

The Court of Appeals concluded from a review of the record that as to duty and breach, plaintiff had established a prima facie case. However, it found no adequate proof of a proximate cause and therefore affirmed the trial court. 30 Mich App 627. Plaintiff was granted leave to appeal to this Court. 384 Mich 838.

The controlling issue is: where plaintiff has presented a prima facie case to a judge without a jury that a landlord had a duty to provide adequate porch and vestibule lighting and a lock on the front door of his apartment building, was the landlord’s breach of that duty a proximate cause of plaintiff’s mugging by a criminal who was lurking in the poorly lighted and unlocked vestibule of the apartment building?

The Court of Appeals apparently treated the action as solely based on a theory that decedent’s failure to provide proper locks and lighting had resulted in plaintiff’s injuries. Viewed as such, a fatal logical void existed as to the element of proximate cause. However, to so narrowly view plaintiff’s pleadings and proofs is to wholly ignore the interwoven assertion that decedent was negligent in creating a condition conducive to criminal assaults.

The crux of plaintiff’s case was that in a high crime district it is reasonably foreseeable that inadequate lighting and unlocked doors would create conditions to which criminals would be attracted to carry out their nefarious deeds. Thus, on a theory not unlike that contemplated by sections 302 B, 448 and 449 of 2 Restatement Torts, 2d, pp 88, 480 and 482, plaintiff asserted that decedent’s negligence consisted of enhancing the likelihood of exposure to criminal assaults by failing to provide adequate lighting and locks. Plaintiff argued, in effect, that decedent set a trap.

We are of the opinion that 2 Restatement Torts, 2d, § 442 B, p 469, cited by the Court of Appeals, is not applicable to the instant case. Rather, in point are § § 302 B, 448 and 449, supra.

Section 302 B provides:

“An act or an omission may be negligent if the actor realizes or should realize that it involves an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal.”

Section 448 provides:

“The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realised or should have realised the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.” (Emphasis supplied.)

Section 449 provides:

“If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.”

The underlying significance of this element of foreseeability, recently discussed by us in Davis v Thornton, 384 Mich 138 (1970), is apparent in the language of section 448 of the Restatement.

We note that a similar theory has been accepted in a number of quite dissimilar factual settings.

In Wallace v Der-Ohanian, 199 Cal App 2d 141; 18 Cal Rptr 892 (1962), the plaintiff, an 11-year-old girl, recovered damages from a camp operator for a sexual assault committed by an unknown person. It was held that the risk of sex molestation was a foreseeable result of assigning plaintiff to a room in a barracks-like building without providing adult supervision.

In Yashar v Yakovac, 48 NYS2d 128 (1944), a bar owner was found liable to a patron for injuries sustained by him at the hands of assailants lurking outside the bar. Having ejected the two rowdies who had previously been bothering plaintiff, the bartender then ejected plaintiff, knowing the two rowdies were outside waiting for him.

In Liberty National Life Ins Co v Weldon, 267 Ala 171; 100 So 2d 696, 708 (1957), it was held that whether the murder of an insured child by the beneficiary aunt was a reasonably foreseeable consequence of issuance of a policy to one who had no insurable interest was a jury question. The Court observed that:

“[A]n insured is placed in position of extreme danger where a policy of insurance is issued on his life in favor of a beneficiary who has no insurable interest.”

The importance of the element of foreseeability is equally reflected in the rejection of liability in Bellows v Worcester Storage Co, 297 Mass 188; 7 NE2d 588 (1937), and in Carini v Roman Catholic Bishop of Springfield, 219 Mass 117; 106 NE 589 (1914).

Contrary to the statement of the trial court,^* we hold that actionable negligence may lie in these circumstances.

In view of the defendants’ failure to rest, prior to moving for a judgment, the trial court had the obligation to view the evidence most favorable to plaintiff merely to determine whether a prima facie case had been presented. The trial court apparently treated the case as if defendants had rested. Even treated as such, error was committed, for the trial court failed to make the requisite specific findings of fact and law pursuant to GrCR 1963, 517.

Therefore, since the trial court failed to consider the totality of plaintiff’s pleadings and proofs in a proper procedural context, plaintiff’s presentation of a prima facie case on all elements, standing unrebutted, precluded the entry of judgment against him on the record as it stood when defendants moved as they did.

The only other question to be decided is whether plaintiff preserved his right to a trial by jury. This record does not support such a finding.

Reversed and remanded for new trial.

Black, Adams, T. Gr. Kavanagh, Swainson, and Williams, JJ., concurred with T. M. Kavanagh, C. J.

* The trial court’s opinion from the bench concludes with:

“Moreover, and in a general way, the court is unaware of any persuasive law in Michigan which would set up at least the fundamentals of liability of a landlord in circumstances of these [sic] kind and, therefore, I grant the directed verdict of no cause for action.”