Fuga v. Comerica Bank-Detroit

202 Mich. App. 380 (1993) 509 N.W.2d 778

FUGA
v.
COMERICA BANK — DETROIT

Docket No. 138128.

Michigan Court of Appeals.

Submitted February 4, 1993, at Detroit. Decided August 10, 1993. Approved for publication November 10, 1993, at 9:00 A.M.

Rader & Eisenberg, P.C. (by Stuart Eisenberg and Mark Romano), for the plaintiff.

Vandeveer Garzia (by Robert D. Brignall), for the defendant.

Before: WAHLS, P.J., and MICHAEL J. KELLY and CONNOR, JJ.

PER CURIAM.

In this premises liability action, plaintiff appeals as of right an order of the Wayne Circuit Court that granted defendant summary disposition pursuant to MCR 2.116(C)(8). Plaintiff had been injured in a criminal attack by a third party while using one of defendant's automatic teller machines (ATM). Plaintiff's complaint alleged theories of negligence, nuisance, and gross negligence. We affirm.

With regard to plaintiff's claim of negligence, in Williams v Cunningham Drug Stores, Inc, 429 Mich 495; 418 NW2d 381 (1988), our Supreme Court held that, as a matter of law, the duty of reasonable care that a merchant owes his customers does not extend to providing armed security guards to protect customers from the criminal acts of third persons. Id., p 504. After Williams was released, some panels of this Court have applied its rule narrowly, while a greater number have taken a broader view. The most recent pronouncements adopt the majority view. In Gouch v Grand Trunk W R Co, 187 Mich App 413, 416-417; 468 NW2d 68 (1991), the panel held:

We believe that Williams is a policy decision applicable to all property relationships, be they involving business or social invitees, licensees, or child trespassers. We cannot hold that an owner of land, such as the defendant, has a duty to protect all people using its land, be they invitees, licensees, or trespassers, from the criminal acts of third parties. To do so would place upon the landowner a greater burden than that which is placed upon the community for the protection of its members. As long as the landowner does not actively create or maintain the criminal activity or fail to act reasonably to end criminal activity which takes place in its presence, there should be no liability for injuries that result from the criminal acts of those third parties.[^[1]]

See also Ellsworth v Highland Lakes Development Associates, 198 Mich App 55; 498 NW2d 5 (1993).

We believe that the interpretation of Williams by the panel in Gouch is binding on this panel under Administrative Order No. 1990-6 and dispositive of plaintiff's negligence claim. Plaintiff's complaint did not allege that defendant created or maintained the criminal activity, or that defendant failed to act to end criminal activity that took place in its presence.^[2] Hence, summary disposition was appropriate.

With regard to plaintiff's claim of nuisance, plaintiff alleged that defendant had failed to inspect or maintain the ATM at the time of installation or thereafter, that "the existing dangerous condition ... was a nuisance," and that defendant had failed to abate the nuisance. These allegations, to the extent that they aver a failure to act, sound in negligence, which we have discussed above, while the remaining allegations are mere conclusions. Plaintiff's complaint failed to state a claim of nuisance. More importantly, Gouch, supra, an attractive nuisance case, expressly holds that a broad application of the rule in Williams, supra, is "applicable to all property relationships." Gouch, supra, p 416. Finally, we will not consider the merits of plaintiff's proposed amended complaint. Although plaintiff attached a copy of the proposed complaint to his brief in opposition to defendant's motion, plaintiff never moved for leave to amend. We are thus left with no trial court decision to review. Swickard v Wayne Co Medical Examiner, 438 Mich 536, 562; 475 NW2d 304 (1991). In any event, amendment appears to be futile in light of Gouch, supra.

Finally, plaintiff claims that the trial court erred in summarily disposing of his claim of gross negligence. We disagree. A claim of gross negligence under Michigan common law must plead a plaintiff's precedent negligence as well as a defendant's subsequent negligence. Gibbard v Cursan, 225 Mich 311, 319; 196 NW 398 (1923); Abraham v Jackson, 189 Mich App 367, 372; 473 NW2d 699 (1991). No precedent negligence was pleaded; therefore, summary disposition was appropriate. Plaintiff's reliance on the statutory definition of "gross negligence" in the governmental immunity statute, MCL 691.1407(2)(c); MSA 3.996(107)(2)(c), is misplaced.

Affirmed.

MICHAEL J. KELLY, J. (concurring in the result only).

I concur in the result only because I believe defendant's planning could have been so grossly indifferent to the perils of a given location as to constitute a breach of duty to its business invitees.

Regarding the claim of gross negligence, I believe that because the issue was directly addressed by the trial court it is properly preserved for our review. I further believe that the Legislature's inertia in failing to adopt a gross negligence standard that supersedes the obsolete requirements of precedent and subsequent negligence is lamentable and anachronistic.

NOTES

[1] The emphasized rule is apparently intended to comport with the post-Williams holdings of this Court in Wagner v Regency Inn Corp, 186 Mich App 158; 463 NW2d 450 (1990), and Mills v White Castle System, Inc, 167 Mich App 202; 421 NW2d 631 (1988).

[2] We understand the reference in Gouch to criminal activity which "takes place in [defendant's] presence" to mean activity that occurs in the presence of employees who have the means at hand to end it. Wagner, n 1 supra; Mills, n 1 supra.