Allen Wayne Oumedian v. Nicholas R Stellhorn

STATE OF MICHIGAN
COURT OF APPEALS
ALLEN WAYNE OUMEDIAN and SARAH UNPUBLISHED
OUMEDIAN, January 20, 2015
Plaintiffs-Appellants,
v No. 318587
Livingston Circuit Court
BAMA BAR, INC. d/b/a STOUT IRISH BAR, LC No. 11-025741-CZ
Defendant-Appellee,
and
NICHOLAS R. STELLHORN, GARY SABIN,
and HR ELITE SERVICES, LLC,
Defendants.
Before: TALBOT, C.J., and CAVANAGH and M. J. KELLY, JJ.
PER CURIAM.
Plaintiffs appeal as of right an order granting summary disposition in favor of defendant,
Bama Bar, Inc., pursuant to MCR 2.116(C)(10).1 We affirm.
Plaintiff, Allen Oumedian, was allegedly injured when he was forcibly removed from
defendant’s bar/restaurant by doormen, Nicholas R. Stellhorn and Gary Sabin, who were
provided by HR Elite Services, LLC.2 Plaintiffs sued, alleging that the presence of Stellhorn and
Sabin constituted a dangerous condition on defendant’s premises entitling plaintiff to a warning.
Plaintiffs also asserted a “respondeat superior” claim, as well as a “negligent hiring/training and
supervision” claim against defendant.
1
We refer to Bama Bar, Inc. as “defendant” in this opinion.
2
Plaintiffs’ claims against HR Elite, Stellhorn, and Sabin were dismissed with prejudice by
stipulation of the parties.
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Subsequently, defendant moved for summary disposition of plaintiffs’ claims, arguing
that HR Elite, Stellhorn, and Sabin were independent contractors and not employees; thus,
defendant could neither be vicariously liable for their actions nor liable for any negligent training
or supervision in their regard. Further, defendant argued, the duty it owed to its invitees
consisted of responding reasonably to situations and no danger was evident in this case until after
plaintiff was removed from the premises and then punched out defendant’s front window.
Plaintiffs responded to defendant’s motion, arguing that defendant was vicariously liable
for the acts of HR Elite, Stellhorn, and Sabin because defendant exercised a degree of control
over them and they were acting as defendant’s agents when they ejected plaintiff, Allen
Oumedian. Further, plaintiff Allen Oumedian was not injured by some unknown third party, but
by Stellhorn and Sabin, who were performing services for plaintiff in a bar/restaurant that should
have been safe for such invitees.
The trial court agreed with defendant, holding that defendant was not liable for the
actions of HR Elite, Stellhorn, and Sabin, who were independent contractors, and the presence of
Stellhorn and Sabin did not constitute “a dangerous condition” for purposes of premises liability.
Accordingly, defendant’s motion for summary disposition was granted.
On appeal, plaintiffs argue that the trial court erred in dismissing their “negligent training
and supervision” claim. We disagree.
A trial court’s determination of a motion for summary disposition is reviewed de novo.
Rose v Nat’l Auction Group, Inc, 466 Mich 453, 461; 646 NW2d 455 (2002). When reviewing a
motion brought under MCR 2.116(C)(10), this Court considers the affidavits, depositions,
pleadings, admissions, and other documentary evidence submitted by the parties in the light most
favorable to the nonmoving party. Id. Summary disposition is appropriate “if there is no
genuine issue regarding any material fact and the moving party is entitled to judgment as a
matter of law.” Id.Plaintiffs’ initial argument focuses on their disagreement with the trial court’s reliance on
Reeves v Kmart Corp, 229 Mich App 466; 582 NW2d 841 (1998), in support of its holding that
defendant was not liable for negligent hiring, training or supervision because Stellhorn and Sabin
were independent contractors. Plaintiffs argue that the facts in this case are distinguishable from
those of Reeves because (1) Stellhorn and Sabin were working on defendant’s premises, (2)
plaintiffs were invitees, (3) plaintiff Allen Oumedian’s injuries occurred on defendant’s
premises, and (4) Stellhorn and Sabin were engaged in the principal business of defendant when
the injuries occurred. However, the trial court did not base its holding on analogous
circumstances between Reeves and this case. Rather, the trial court noted that plaintiffs were
claiming that defendant had “a duty to hire competent security guards, adequately train them and
adequately supervise them,” but “Michigan has not recognized a duty requiring an employer to
exercise care in the selection and retention of independent contractors.” See generally id. at 471-
476. Plaintiffs provide no legal authority to dispute this holding.
Plaintiffs argue, however, that defendant retained control over HR Elite, Stellhorn and
Sabin as evidenced by the deposition testimony of defendant’s general manager, David Norman,
who testified that defendant’s policy was not to touch difficult customers. Plaintiffs argue that
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this testimony gave rise to a genuine issue of material fact as to whether defendant retained
control over the manner in which the work was performed. We disagree.
Plaintiffs are correct that a party may be liable for the negligence of an independent
contractor if that party retains and exercises control over the contractor.3 However, in
determining whether defendant was liable because of the imposition of an independent duty
arising regardless of the legal status of its relationship with the doormen, the extent of retained
and exercised control must be considered.4 And, here, the evidence relied on by plaintiffs was
insufficient to establish that defendant retained and exercised the requisite control to make it
vicariously liable for any negligence of HR Elite, Stellhorn and Sabin. See Hoffman v JDM
Assoc, Inc, 213 Mich App 466, 473; 540 NW2d 689 (1995). While Norman advised HR Elite
that it preferred to respond to agitated customers with friendly conversations or police
intervention, such guidance is not evidence of the requisite “retained control.” Thus, this claim
is without merit.
Plaintiffs also argue that forcibly removing customers from a bar/restaurant is “inherently
dangerous;” thus, defendant can be liable for negligence in that regard as set forth in Reeves, 229
Mich App at 471. Plaintiffs have cited no legal support for the claim that forcibly ejecting
customers from a bar/restaurant is “inherently dangerous” work and we will not search for such
authority. See Bronson Methodist Hosp v Mich Assigned Claims Facility, 298 Mich App 192,
199; 826 NW2d 197 (2012).
Next, plaintiffs argue that the trial court erred in dismissing their vicarious liability claim
brought under a respondeat superior theory because defendant retained control of Stellhorn and
Sabin and, thus, could be liable under principles of master and servant. We disagree.
As this Court explained in Candelaria:
The concept of “retained control” is pertinent to two distinct theories of liability:
(1) the vicarious liability of an employer pursuant to the doctrine of respondeat
superior, and (2) the direct liability of an owner or general contractor pursuant to
the doctrine of retained control. In the former case, evidence of an employer’s
retained control is relevant to the issue whether there was in fact a contractee-
contractor relationship. An independent contractor is defined as ‘“one who,
carrying on an independent business, contracts to do work without being subject
to the right of control by the employer as to the method of work but only as to the
result to be accomplished.”’ If the employer of a person or business ostensibly
labeled an “independent contractor” retains control over the method of the work,
3
See Reeves, 229 Mich App at 471, citing Funk v General Motors Corp, 392 Mich 91, 108-110;
220 NW2d 641 (1974), overruled in part on another ground by Hardy v Monsanto Enviro-Chem
Systems, Inc, 414 Mich 29; 323 NW2d 270 (1982).
4
See Funk, 392 Mich at 108; Candelaria v B C Gen Contractors, Inc, 236 Mich App 67, 73; 600
NW2d 348 (1999).
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there is in fact no contractee-contractor relationship, and the employer may be
vicariously liable under the principles of master and servant. [Candelaria, 236
Mich App at 72-73 (citations omitted).]
Plaintiffs appear to argue that defendant retained the right to control the manner in which the
doormen dealt with customers; therefore, Stellhorn and Sabin were not independent contractors
but defendant’s employees. However, plaintiffs failed to present any evidence in support of their
claim that defendant retained control over the “method of work.” See id. Rather, the evidence of
record indicates that HR Elite was retained to provide doormen services, HR Elite provided the
services of Stellhorn and Sabin, and defendant did not control the method by which they
accomplished that task. Accordingly, the trial court properly dismissed this claim.
Finally, plaintiffs argue that genuine issues of material fact precluded the dismissal of
their premises liability claim. We disagree.
An “invitee” is invited onto the land of another under an implied assurance or
understanding that reasonable care has been used to prepare the premises to make it safe for the
invitee. James v Alberts, 464 Mich 12, 19; 626 NW2d 158 (2001) (citation omitted). The
landowner has a duty to warn an invitee of any known dangers and to make the premises safe,
including by inspecting the premises and making any necessary repairs or warning of any
discovered hazards. Id. at 19-20 (citation omitted).
Plaintiffs argue that there was a history of fights at this bar/restaurant yet “Stellhorn and
Sabin were set loose at the bar without training or supervision of any type.” Plaintiffs argue that
defendant had a duty “to take reasonable measures to protect its invitees from the risk of harm
which this activity posed.” But, as the trial court held, defendant could not have anticipated that
an altercation would occur between plaintiff Allen Oumedian and the doormen. “A premises
owner’s duty is limited to responding reasonably to situations occurring on the premises because,
as a matter of public policy, we should not expect invitors to assume that others will disobey the
law.” MacDonald v PKT, Inc, 464 Mich 322, 335; 628 NW2d 33 (2001). And, contrary to
plaintiffs’ claim, there was no evidence that the presence of either Stellhorn or Sabin on
defendant’s premises created a danger to invitees that required warning and correction.
Accordingly, the trial court properly dismissed plaintiff’s premises liability claim.
Affirmed.
/s/ Michael J. Talbot
/s/ Mark J. Cavanagh
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