Krass v. Tri-County Security, Inc

593 N.W.2d 578 (1999) 233 Mich. App. 661

Dennis M. KRASS, as Personal Representative of the Estate of Steven G. Krass, Deceased, Plaintiff-Appellant,
v.
Joliet, Inc., d/b/a/ Harper Food Center, J & E, Inc., d/b/a Harpos Concert Theater, Baldini, Inc., and Allstate Insurance Company, Defendants, and
TRI-COUNTY SECURITY, INC., Defendant-Appellee.

Docket No. 204413.

Court of Appeals of Michigan.

Submitted December 10, 1998, at Detroit. Decided February 2, 1999, at 9:25 a.m. Released for Publication April 21, 1999.

Paskin, Nagi & Baxter, P.C. (by David R. Baxter and Daniel J. Seymour), for Dennis M. Krass. Detroit.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton (by Janet C. Barnes), for Tri-County Security, Inc. Farmington Hills.

Before: HOLBROOK, Jr., P.J., and O'CONNELL and WHITBECK, JJ.

WHITBECK, J.

Plaintiff, Dennis M. Krass, personal representative of the estate of Steven G. Krass, appeals as of right an order granting summary disposition in favor of defendant Tri-County Security, Inc., pursuant to MCR 2.116(C)(10). The basic issue is whether a merchant (and, derivatively, the security company that it hires) that takes security precautions by hiring the security company to provide parking lot patrol and serve as a deterrent to crime can be sued on the theory that the safety precautions were less effective than they could have been or should have been. We hold that as a matter of law such a suit is precluded and affirm.

I. Basic Facts And Procedural History

On January 13, 1996, a security guard from Tri-County directed plaintiff's decedent Steven G. Krass, to park his car in a parking lot owned by defendant Joliet, Inc., doing business as Harper Food Center. Steven G. Krass was attending a concert at Harpo's Concert Theatre, which was owned by defendant Baldini, Inc. Tri-County provided security guard services, pursuant to a July 22, 1994, contract with Baldini, Inc.^[1] The contract, under the heading of "Specific Duties," stated the following: "Parking Lot Patrol Deterrant (sic) to Crime in parking lots." Attached to the contract, and presumably incorporated therein, was a printed set of terms and conditions. Of direct relevance is Paragraph 9 of these terms and conditions, which stated:

The Client (Baldini, Inc.) understands and agrees that the Security Officers provided by the Company (Tri-County) under this agreement are only a deterrant (sic) to crime, fire and vandalism and that the Company does not claim or guarantee that security may not be circumvented or compromised; that the officer(s) will prevent any and all loss from burglary, hold-up, vandalism, larceny, fire or otherwise. The Company is not itself an insurer. The Client assumes all risk for loss or damage to Client's premises and contents and will maintain his/her own insurance coverage thereon. Client property shall at no time be deemed in the care, custody or control of the Company. The amounts payable to the Company are not sufficient to warrant the Company assuming any risk of consequental (sic) or any other damages which are sustained through burglary, hold-up, fire, larceny vandalism or any other cause or liability by virtue of this Agreement, or because of the relationship because of negligence or otherwise....

Steven G. Krass returned to his car in the early morning of January 14, 1996, and was assaulted by three men. Steven G. Krass was shot in the head and died of that gunshot wound on January 17, 1996. Thereafter, plaintiff brought suit, alleging, among other things, that Tri-County failed to properly protect Steven G. Krass or to control the premises. Plaintiff also alleged that at no time before, during, or after the assault did Tri-County's security guard try to evict, warn, signal, or communicate his presence to the unknown assailants and failed to take any affirmative steps to protect Steven G. Krass from harm. Plaintiff further alleged that, as a result of Tri-County's negligence, Steven G. Krass sustained the injuries that caused his death. The trial court granted Tri-County's motion for summary disposition, finding that Tri-County owed no duty to Steven G. Krass to protect him from the criminal acts of third parties and that he was not a third-party beneficiary of the contract. Plaintiff thereafter brought this appeal.^[2]

II. Standard Of Review

Tri-County brought its motion pursuant to MCR 2.116(C)(8) and (C)(10). Where the record is unclear with regard to which section of MCR 2.116 the trial court based its ruling, and both the defendant and the trial court relied on documentary evidence beyond the pleadings in support of the defendant's motion for summary disposition, this Court must construe the defendant's motion as being granted pursuant to MCR 2.116(C)(10). Osman v. Summer Green Lawn Care, Inc., 209 Mich.App. 703, 705, 532 N.W.2d 186 (1995). This Court reviews the trial court's grant of summary disposition de novo. Pinckney Community Schools v. Continental Casualty Co., 213 Mich.App. 521, 525, 540 N.W.2d 748 (1995). This Court must review the trial court record to determine if the movant was entitled to judgment as a matter of law. Phillips v. Deihm, 213 Mich.App. 389, 398, 541 N.W.2d 566 (1995). All reasonable inferences are to be drawn in favor of the nonmoving party. Paul v. Lee, 455 Mich. 204, 210, 568 N.W.2d 510 (1997).

III. Third-Party Beneficiary

Plaintiff argues that Steven G. Krass was a third-party beneficiary of the contract between Tri-County and Baldini, Inc. We can dispose of this argument summarily. "For a plaintiff to sue on a contract to which he is not a party, it must be determined that the plaintiff was an intended third-party beneficiary of the contract which suit is brought on." Rhodes v. United Jewish Charities of Detroit, 184 Mich.App. 740, 744, 459 N.W.2d 44 (1990). Pursuant to M.C.L. § 600.1405(1); MSA 27A.1405(1), a promise will be construed to have been made for the benefit of a person when the promisor undertook to give or to do or refrain from doing something directly to or for that person. An objective standard must be used by the court in determining the plaintiff's status. Rhodes, supra at 744, 459 N.W.2d 44. "The contract itself reveals the party's intentions." Id. As noted above, the contract stated: "Parking Lot Patrol Deterrant (sic) to Crime in parking lots." There was no provision in this contract relating to the safety of patrons, employees, or anyone else. Steven G. Krass was not a third-party beneficiary because the contract did not provide for something to be done directly to or for him, or any other patron. The case cited by plaintiff in the reply brief, Koenig v. South Haven, 221 Mich.App. 711, 562 N.W.2d 509 (1997), does not persuade us to the contrary.

IV. Duty

A. Introduction

Plaintiff argues that the trial court erred in granting summary disposition because plaintiff submitted documentary evidence that demonstrated a genuine issue of material fact regarding whether Tri-County's security guard was negligent. We disagree and we note, as outlined more fully below, that in making this argument plaintiff elides the initial question whether a duty existed as a matter of law. "The issue of duty is one of law for the court, which must assess competing policy considerations to determine whether the relationship between the parties will occasion a legal obligation to the injured party." Tame v. A L Damman Co., 177 Mich.App. 453, 455, 442 N.W.2d 679 (1989), citing Madley v. Evening News Ass'n, 167 Mich.App. 338, 341, 421 N.W.2d 682 (1988).

B. The Geographic Extent Of Duty

This case presents an interesting factual anomaly that, fortunately, is unnecessary for us to decide. Tri-County notes that the Harper Food Center parking lot to which the security guard directed Steven G. Krass was not owned by Baldini, Inc., and, therefore, the premises in which he was assaulted and killed were arguably not covered by the contract.^[3] Plaintiff, however, points out that there is deposition testimony to the effect that Baldini, Inc., actually owned no parking lots. Therefore, plaintiff argues, Baldini, Inc., depended on its customers parking in lots owned by others. There is conflicting deposition testimony regarding whether Baldini, Inc., ever directed Tri-County to patrol or place guards at or in the Harper Food Center parking lot and whether Tri-County ever actually patrolled or placed guards at or in that parking lot. Nevertheless, it is clear that Tri-County's security guard directed Steven G. Krass to the Harper Food Center parking lot. We therefore assume without deciding that, viewing the facts in a light most favorable to plaintiff,^[4] Baldini, Inc., and its agent Tri-County had possession and control of the Harper Food Center parking lot, at least to the extent that Steven G. Krass was directed to park there. Because we decide the case on other grounds, we do not need to consider the geographic extent of any duty.

C. A Prima Facie Case Of Negligence And The General Concept Of Duty

To establish a prima facie case of negligence, the plaintiff must prove: (1) that the defendant owed a duty to the plaintiff: (2) that the defendant breached that duty; (3) that the defendant's breach of duty was a proximate cause of the plaintiff's damages: and (4) that the plaintiff suffered damages. Babula v. Robertson, 212 Mich.App. 45, 48, 536 N.W.2d 834 (1995).

Despite plaintiff's emphasis on the alleged negligence of Tri-County's security guard, this case essentially revolves around the existence of a duty, rather than whether Tri-County negligently performed any such duty, if it existed. Generally, duty is any obligation that the defendant has to the plaintiff to avoid negligent conduct. Simko v. Blake, 448 Mich. 648, 655, 532 N.W.2d 842 (1995). As a general rule, there is no legal duty that obligates one person to aid or protect another. 2 Restatement Torts, 2d, § 314, p. 116; Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 498-499, 418 N.W.2d 381 (1988); Johnson v. Bobbie's Party Store, 189 Mich.App. 652, 660, 473 N.W.2d 796 (1991). "Generally, there is no duty to protect another from the criminal acts of a third party in the absence of special circumstances." Tame, supra at 455-456, 442 N.W.2d 679, citing Madley, supra at 341-342, 421 N.W.2d 682.^[5]

The question of duty turns on the relationship existing between the actor and the injured person. Moning v. Alfono, 400 Mich. 425, 438-439, 254 N.W.2d 759 (1977). In determining whether a duty exists, courts look to different variables, including: foreseeability of the harm, existence of a relationship between the parties involved, degree of certainty of injury, closeness of connection between the conduct and the injury, moral blame attached to the conduct, policy of preventing future harm, and the burdens and consequences of imposing a duty and the resulting liability for breach. Buczkowski v. McKay, 441 Mich. 96, 100-101 & n. 4, 490 N.W.2d 330 (1992); Babula, supra at 49, 536 N.W.2d 834. See also Baker v. Arbor Drugs, Inc., 215 Mich.App. 198, 203, 544 N.W.2d 727 (1996). As the Court noted in Buczkowski, supra at 100, 490 N.W.2d 330:

For purposes of this case we distinguish between duty as the problem of the relational obligation between the plaintiff and the defendant, and the standard of care that in negligence cases is always reasonable conduct. Thus, the duty to use "reasonable care" is the standard for liability rather than the antecedent conclusion that a particular plaintiff has protection against a particular defendant's conduct, or that a particular defendant owes any specific duty to a particular plaintiff. Duty is actually a "``question of whether the defendant is under any obligation for the benefit of the particular plaintiff's and concerns ``the problem of the relation between individuals which imposes upon one a legal obligation for the benefit of the other.'" Friedman v. Dozorc, 412 Mich. 1, 22, 312 N.W.2d 585 (1981); Prosser & Keeton, Torts (5th ed.), § 53, p. 356. "``Duty' is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." Id. p. 358. See also Friedman v. Dozorc, supra, and Antcliff v. State Employees Credit Union, 414 Mich. 624, 631, 327 N.W.2d 814 (1982).

D. Misfeasance Versus Nonfeasance And The Special Relationship Exception

As the Michigan Supreme Court stated in Williams, supra at 498-499:

In determining standards of conduct in the area of negligence, the courts have made a distinction between misfeasance, or active misconduct causing personal injury, and nonfeasance, which is passive inaction or the failure to actively protect others from harm. The common law has been slow in recognizing liability for nonfeasance because the courts are reluctant to force persons to help one another and because such conduct does not create a new risk of harm to a potential plaintiff. Thus, as a general rule, there is no duty that obligates one person to aid or protect another.

Here, there is no question that Tri-County's security guard did not engage in active misconduct. Thus, we are confronted with allegations of nonfeasance rather than misfeasance. As the Court in Williams noted, however, there are court-recognized exceptions to the general rule of nonliability that apply in circumstances where a "special relationship" exists between a plaintiff and a defendant. Id. at 499. Examples include a common carrier that may be obligated to protect passengers,^[6] an innkeeper who may be obligated to protect guests^[7] and an employer who may be obligated to protect employees.^[8] As the Court explained in Williams, supra at 499:

The rationale behind imposing a duty to protect in these special relationships is based on control. In each situation one person entrusts himself to the control and protection of another, with a consequent loss of control to protect himself. The duty to protect is imposed upon the person in control because he is best able to provide a place of safety.

The Court went on to note that the largest group on whom an affirmative duty to protect is imposed is comprised of individuals or entities who are owners and occupiers of land. Id. The Court stated:

The possessor of land has a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land. Consequently, a landlord may be held liable for an unreasonable risk of harm caused by a dangerous condition in the areas of common use retained in his control such as lobbies, hallways, stairways, and elevators. Likewise, a business invitor or merchant may be held liable for injuries resulting from negligent maintenance of the premises or defects in the physical structure of the building.

The duty a possessor of land owes his invitees is not absolute, however. It does not extend to conditions from which an unreasonable risk cannot be anticipated or to dangers so obvious and apparent that an invitee may be expected to discover them himself. Furthermore, "the occupier is not an insurer of the safety of invitees, and his duty is only to exercise reasonable care for their protection." [^[9]][Id. at 499-500.]

Here, therefore, it is possible that a duty may have run from Baldini, Inc., to Steven G. Krass, on the basis of his "special relationship" to Baldini, Inc., as a business invitee, but the existence of this duty must be analyzed within the parameters of Williams and related cases that define duty to business invitees. We wish to emphasize, moreover, that this special relationship, if it existed at all, existed between Baldini, Inc., and Steven G. Krass; there is no legal relationship whatever between Steven G. Krass and Tri-County.^[10] Any legal connection between Steven G. Krass and Tri-County derives from the contract between Baldini, Inc., and Tri-County. Simply put, therefore, if Baldini, Inc., owed no duty to Steven G. Krass as its business invitee, then neither, on a derivative basis, did Tri-County.

E. Voluntary Assumption Of Duty

Plaintiff attempts to avoid the effect of Williams by asserting that, through its contract with Baldini, Inc., Tri-County "assumed" the responsibility to provide security for the parking lots in question. In making this argument, plaintiff relies heavily on the language in the contract that states: "Parking Lot Patrol Deterrant (sic) to Crime in parking lots." The reason for plaintiff's aversion to Williams is readily apparent from the central holdings in that case: (1) the duty advanced by plaintiffs was essentially one of police protection but that duty is vested in the government by constitution and statute, Williams, supra at 501; (2) although a property owner can control the condition of its premises by correcting physical defects that may result in injuries to its invitees, it cannot control the incidence of crime in the community, id. at 502; (3) even if a merchant were not required to prevent all crime, defining a reasonable standard of care short of that goal might well be impossible, id. at 503; and (4) the inability of government and law enforcement officials to prevent criminal attacks does not justify transferring the responsibility to a business owner, id.

Plaintiff does not cite, or even refer to, Williams in its brief. Presumably, however, plaintiff would argue Williams involves a situation in which the defendant failed entirely to provide a security guard on the day when the plaintiff was shot by an armed robber on the defendant's premises. Here, plaintiff presumably would argue, Baldini, Inc., and Tri-County voluntarily entered into a contract that obligated Tri-County to provide parking lot patrol and serve as a deterrent to crime. Indeed, plaintiff here relies heavily on Rhodes, supra, for the proposition that when a person voluntarily assumes the performance of a duty, that person is required to perform it carefully, not omitting to do what an ordinarily prudent person would do in accomplishing the task.

Rhodes involved a situation where the plaintiff was assaulted in a fenced and guarded parking lot owned by the defendant United Jewish Charities of Detroit (UJC). UJC also owned the building east of the parking lot and leased space in that building to the defendant Jewish Vocational Services and Community Workshop (JVS) and to Michigan Rehabilitation Services, the plaintiff's employer. By its lease agreement, UJC required JVS to provide guard service for the parking lot. JVS in turn contracted with the defendant Guardian Guard Services to provide on-site security. Rhodes, supra at 741-742, 459 N.W.2d 44. The Rhodes Court held:

[W]hen UJC and JVS voluntarily assumed the duty of providing police protection in the form of guards from Guardian, it became incumbent upon them to provide that protection in a non-negligent manner. The question whether the guard was negligent in the performance of his duties is a question for the jury. The grant of summary disposition was therefore erroneous. [Id. at 743, 459 N.W.2d 44.]

There are three problems with plaintiff's reliance on Rhodes. First, the Rhodes Court provided little information about the language contained in the contract between JVS and Guardian, stating only that Guardian was to provide "on-site security" and then categorizing this as a duty to provide "police protection in the form of guards from Guardian." Id. at 741-743, 459 N.W.2d 44. Here, by contrast, we have the language in the contract between Baldini, Inc., and Tri-County that obligated Tri-County to provide parking lot patrol and serve as a deterrent to crime. In our view, this contractual obligation falls considerably short of providing "police protection," particularly when considered in light of the language in the terms and conditions of the contract that Tri-County did not claim or guarantee that security might not be circumvented or compromised, that Tri-County did not claim or guarantee that its officer(s) would prevent any loss from burglary, holdup, vandalism, larceny, fire or otherwise and that Tri-County was not itself an insurer.

Second, the Rhodes Court relied on Sponkowski v. Ingham Co. Rd. Comm., 152 Mich.App. 123, 393 N.W.2d 579 (1986), when articulating its voluntary assumption of duty theory. Rhodes, supra at 743, 459 N.W.2d 44. Sponkowski involved a plaintiff who died as a result of injuries she received when the car in which she was riding followed a vehicle driven by the defendant Charles Wood, ultimately sideswiped the Wood vehicle, and then continued forward until it struck a tree. Sponkowski, supra at 125-126, 393 N.W.2d 579. The Sponkowski Court described the circumstances as follows:

Lorrie Sponkowski was a passenger in defendant Cindy Osmon's car, which was one of the cars in the caravan [that was proceeding to stables in Mason, Michigan]. The Osmon vehicle directly followed the car driven by defendant Charles Wood. Osmon indicated in her deposition that she did not know the way to the stables and thus needed to follow another vehicle. From the agreement reached between the participants before leaving, it is apparent that Charles Wood realized that he would be followed. [Id.]

These factual circumstances implicitly impose several limitations on the reach of Rhodes. We note that Sponkowski deals with motor vehicles and that "Michigan law imposes on all motorists a general duty to operate their vehicles in a reasonably prudent manner." Sponkowski, supra at 128, 393 N.W.2d 579, citing Zarzecki v. Hatch, 347 Mich. 138, 141, 79 N.W.2d 605 (1956). Further, in Sponkowski defendant Wood voluntarily assumed to lead the other vehicles to an unfamiliar destination; the "agreement" was directly between the parties involved, with a recognition by the party assuming the obligation that he was doing so. This is a far cry from a situation in which two parties agree that one of them will provide parking lot patrol and serve as a deterrent to crime without any general reference to third parties or the public and with no specific reference to patrons, such as Steven G. Krass, of Baldini, Inc., and Harpo's Concert Theatre. Thus, the analogy between Lorrie Sponkowski and Steven G. Krass is, at best, a very distant one.

The third problem with Rhodes is the decision in Scott v. Harper Recreation, Inc., 444 Mich. 441, 506 N.W.2d 857 (1993). In a complaint strikingly similar to the one in this case, the plaintiff in Scott alleged that the defendant breached its duty to the plaintiff by failing to provide adequate security to make the parking lot safe, failing to implement adequate security procedures to keep the lot free of criminal activity, and allowing an armed assailant to be present in its parking lot without any attempts being made by security personnel to prevent, or warn of, said assault. Id. at 443-444, 506 N.W.2d 857. The Michigan Supreme Court succinctly dissected this claim:

But the defendant did not advertise that it would "make the parking lot safe" or provide a "lot free of criminal activity"—it never claimed the ability or the intention to create an environment that was guaranteed to be free of crime. The defendant instead advertised specific security measures designed (a) to decrease the likelihood of crime, and (b) correspondingly to decrease the anxiety felt by patrons. Indeed, because the defendant put in place each promised security measure, it is reasonable to assume that the defendant did reduce the incidence of crime in its parking area.

Common sense is required in approaching a case like this. A promise to take specific steps to reduce danger is a promise to do just that—not a promise to eliminate the danger. Manufacturers of safety equipment, for instance, normally promise, expressly or by implication, that the danger of injury will be reduced—rarely, if ever, do they promise that all danger of injury will be eliminated. Likewise, neither this defendant's advertising nor the measures it put in place constituted a guarantee of the plaintiff's personal safety. [Id. at 450-451, 506 N.W.2d 857 (emphasis in the original).]

The Court then went on to deal with the voluntary assumption of duty theory:

Thus we agree with the analysis offered in Tame [supra], upon which the circuit court relied in granting summary disposition.

In Tame, the Court of Appeals "decline[d] to adopt a policy that imposes liability on a merchant who, in a good faith effort to deter crime, fails to prevent all criminal activity on its premises." It said that "[s]uch a policy would penalize merchants who provide some measure of protection, as opposed to merchants who take no such measures." 177 Mich.App.[at] 457[, 442 N.W.2d 679].

The Court of Appeals returned to this area in Rhodes[supra]. The Court held that a party voluntarily undertaking to provide protection must do so in a non-negligent manner, and said that the question in Rhodes, whether a guard was negligent in the performance of his duties, was a question for the jury. However, Rhodes is silent regarding the manner in which the guard was alleged to have been negligent. To the extent that Rhodes implies that an agreement to provide security is an actionable warranty that the guarded area will be safe from all criminal activity, it is inconsistent with Michigan law.

The central holding of Williams is that merchants are ordinarily not responsible for the criminal acts of third persons. The present suit is an attempt to circumvent that holding by invoking the principle that a person can be held liable for improperly discharging a voluntarily undertaken function. However, the rule of Williams remains in force, even where a merchant voluntarily takes safety precautions. Suitmay not be maintained on the theory that the safety measures are less effective than they could or should have been. [Scott, supra at 451-452, 506 N.W.2d 857 (emphasis supplied).]

This Court had the opportunity to evaluate Rhodes in light of the decision in Scott. In Abner v. Oakland Mall, Ltd., 209 Mich.App. 490, 531 N.W.2d 726 (1995), we upheld the trial court's grant of summary disposition under MCR 2.116(C)(10) in a case where the plaintiff, who was raped by an unknown assailant in the rear parking lot of the Oakland Square shopping center, alleged that the defendants, one of whom had contracted with a codefendant to provide security services at the shopping center, were negligent in failing to ensure that the premises were reasonably safe. The plaintiff relied on this Court's decisions in Scott v. Harper Recreation, Inc., 192 Mich.App. 137, 480 N.W.2d 270 (1991), which was reversed in Scott, supra, and in Rhodes, supra. Id. at 492, 531 N.W.2d 726. The Abner Court repeated the Supreme Court's observation that to the extent that Rhodes implied that an agreement to provide security is an actionable warranty that the guarded area will be safe from all criminal activity, it is inconsistent with Michigan law. Id. at 492-493, 531 N.W.2d 726. However, as with the Supreme Court in Scott, the Abner Court adopted the central holding in Williams that merchants are ordinarily not responsible for the criminal acts of third persons. Id. at 493, 531 N.W.2d 726.^[11] The Abner Court went on to find that the essence of the plaintiff's claims was that safety measures voluntarily undertaken by the defendants were less effective than they could or should have been and that the Supreme Court's decision in Scott clearly precludes recovery under such a theory. Id. at 493, 531 N.W.2d 726.

We believe this analysis to be exactly correct. While it is debatable whether Rhodes actually implied that an agreement to provide security is an actionable warranty that the guarded area will be safe from all criminal activity, that was not the issue in Williams, nor in Scott, nor in this case. The issue is whether a merchant (and, here, derivatively, the security company that it hires) who voluntarily takes safety precautions against the general societal problem of crime (here, by hiring the security company to provide parking lot patrol and serve as a deterrent to crime) can be sued on the theory that the safety precautions were less effective than they could or should have been. Under Williams and Scott, we hold that the answer clearly must be no.^[12]

We are aware of this Court's recently released decision in MacDonald v. PKT, Inc., 233 Mich.App. 395, 593 N.W.2d 176 (1999), but do not regard that case as requiring a different result. In MacDonald, the plaintiff attended the "PlanetFest" concert at the pertinent defendant's outdoor amphitheater where she sat in "general seating" on a lawn-covered hill. Id. at 397, 593 N.W.2d 176. While one band was performing, some people on the hill began pulling up sod and throwing it at other people, but this terminated after the band stopped performing and an announcement that the activity must stop. Also, several people involved in the incident were ejected from the site. Id. There had been two "sod-throwing incidents" at the site in previous years. Id. According to the Court, the following ensued:

Approximately forty-five minutes later, while a different band was performing, the sod throwing began again. When the band refused to make an announcement or to stop performing until the sod throwing stopped, the event coordinator made an announcement demanding that the sod throwing stop. When the sod throwing continued, the band made an additional announcement. Numerous individuals involved in the incident were ejected from the theater. However, plaintiff fractured her ankle when she fell in an attempt to avoid a large piece of sod thrown in her direction. [Id. at 397-98, 593 N.W.2d 176.]

The plaintiff in MacDonald sued the defendant, alleging in part that it failed to provide proper security. Id. The trial court granted summary disposition in favor of the defendant on the ground that it had no duty to protect the plaintiff from the criminal acts of third parties. Id. This Court stated that, "[o]rdinarily, merchants do not have a duty to provide security guards to protect customers from the criminal acts of third parties." Id. at 400, 593 N.W.2d 176, citing Williams, supra at 504, 418 N.W.2d 381. However, this Court also noted that "invitors have a duty to use reasonable care to protect their identifiable invitees from the foreseeable criminal acts of third parties." MacDonald, supra at 400, 593 N.W.2d 176, citing Mason v. Royal Dequindre, Inc., 455 Mich. 391, 405, 566 N.W.2d 199 (1997). This Court, in reversing the trial court's grant of summary disposition in favor of the defendant in MacDonald, found that there was a genuine issue of material fact regarding whether the sod throwing that (somewhat indirectly) resulted in injury to the plaintiff was foreseeable:

Here, in response to defendant's motion for summary disposition, plaintiff submitted evidence that there had been incidents of sod throwing at previous concerts and that defendant was aware of those incidents. Plaintiff also presented evidence that defendant had formulated policies to deal with sod-throwing incidents before the PlanetFest concert. [^[13]] Accordingly, at the very least, a genuine issue of material fact existed with respect to whether the sod-throwing incident was foreseeable. [Id. at 400, 593 N.W.2d 176.]

MacDonald involved criminal acts that were highly peculiar to defendant's outdoor amphitheater and that the defendant in that case arguably had specific reason to anticipate. In contrast, the tragic shooting underlying the case here was, in essence, a random street crime, as was that at issue in Scott, supra. The finding of a genuine issue of material fact in MacDonald was predicated on the defendant's knowledge of a problem peculiar to its location, not a generalized social problem such as street crime. Thus, we conclude that MacDonald is materially distinguishable in light of its peculiar facts and does not alter our conclusion that a merchant is ordinarily not liable for a criminal act committed against an invitee in a parking lot owned, controlled, or otherwise used by the merchant. Indeed, in Mason, supra at 401, 566 N.W.2d 199, the Michigan Supreme Court stated:

We found [in Williams, supra at 501-502, 418 N.W.2d 381], as a matter of public policy, that a merchant cannot control crime in the community. It is unreasonable to expect a merchant to provide police protection, a duty vested in the government.

Michigan law does not treat essentially random "crime in the community," such as the tragedy underlying this case, as a "foreseeable" harm against which a merchant must insure its patrons. Thus, the trial court properly granted summary disposition in favor of Tri-County.

F. Conclusion

The central issue in this case relates to duty.^[14] Plaintiff essentially invites us to find that Baldini, Inc., had a duty to Steven G. Krass and that Tri-County derived a duty to him on the basis of the contract between Baldini, Inc., and Tri-County. We decline the invitation. As did the Supreme Court in Williams, we find that the duty advanced by plaintiff is essentially one of police protection,^[15] but that duty is vested in the government by constitution and statute. As in Williams, we further find that although a property owner can control the condition of its premises by correcting physical defects that may result in injuries to its business invitees, it cannot control the incidence of crime in the community and that the inability of government and law enforcement officials to prevent criminal attacks does not justify transferring the responsibility to a business owner or, derivatively, to the security company that the business owner hires.

As was the case in Scott, here the plaintiff is attempting to avoid the central holding in Williams that merchants are ordinarily not responsible for the criminal acts of third persons by invoking the principle that a person can be held liable for improperly discharging a voluntarily undertaken function. As did the Court in Scott, we hold that a merchant, and the security company it hires, who voluntarily take safety precautions related to the general threat of crime cannot be sued on the theory that the safety precautions were less effective than they could or should have been.

Affirmed.

O'CONNELL, J., concurred.

HOLBROOK, Jr., P.J., concurring.

I concur in the result only.

NOTES

[1] The contract listed the business name of Baldini, Inc., as "Harpo's Concert Theater" and the address as "14238 Harper." This is not the address of the parking lot to which the security guard directed Steven G. Krass. Rather, the parking lot to which he was directed was owned by defendant Joliet, Inc., doing business as Harper Food Center.

[2] Plaintiff states in his brief that he is also appealing a trial court order that granted summary disposition to defendant Baldini, Inc. However, plaintiff goes on to state:

Since the filing of this appeal, Plaintiff has been informed that Defendant/Appellee Baldini, Inc. has sought protection under the bankruptcy laws of the United States. Pursuant to 11 USC § 362 the continuation of this litigation against Baldini has thereby been stayed. Plaintiff is not waiving any rights against Baldini and is simply precluded from asserting its appeal at this time against Baldini because of the overriding bankruptcy statute.

We therefore consider the appeal only as it relates to Tri-County.

[3] Indeed, the terms and conditions of the contract, as noted above, provide that the client's property is not to be deemed in the care, custody, or control of Tri-County.

[4] A court reviewing a motion under MCR 2.116(C)(10) must consider the pleadings, affidavits, depositions, admissions, and any other documentary evidence in favor of the party opposing the motion. Radtke v. Everett, 442 Mich. 368, 374, 501 N.W.2d 155 (1993).

[5] We are aware that, as plaintiff points out, Tame also states:

We do not intend, however, to preclude claims of negligent supervision or vicarious liability for negligence on the part of security guard services. The facts of this case, however, do not support such a claim. [Tame, supra at 457, 442 N.W.2d 679.]

[6] See, e.g., Frederick v. Detroit, 370 Mich. 425, 121 N.W.2d 918 (1963).

[7] See, e.g., Keech v. Clements, 303 Mich. 69, 5 N.W.2d 570(1942).

[8] See, e.g., Bradley v. Stevens, 329 Mich. 556, 46 N.W.2d 382 (1951).

[9] In support of this proposition, the Court cited Prosser & Keeton, Torts (5th ed), § 61, p 425 and Kroll v. Katz, 374 Mich. 364, 372-373, 132 N.W.2d 27 (1965). In Kroll, the plaintiff sued for injuries sustained when, at the direction of his employer, he entered a vacant house to make plumbing repairs that had been requested by the defendant, whom the trial court found was the vendor of the house under a defaulted land contract, during the period of redemption, and was therefore in control and possession of the premises. Id. at 366-368, 132 N.W.2d 27. The trial court also held the plaintiff to be an invitee of the defendant. Id. at 367, 132 N.W.2d 27. While also citing Prosser [Prosser on Torts (2d ed.), p. 459] to the effect that an occupier of land is not an insurer of the safety of invitees, the Court held that a jury could have found that the defendant knew, or should have known, of the dangerous condition of the premises and, in. the exercise of reasonable care, should have either remedied the danger or warned the plaintiff of its existence. Id. at 373-374, 132 N.W.2d 27.

[10] Our reading of the complaint leads us to conclude that plaintiff did not allege an independent common-law duty owed to Steven G. Krass by Tri-County. In any event, we do not believe such a claim to have been viable in the circumstances of this case. See Roberts v. Pinkins, 171 Mich.App. 648, 654, 430 N.W.2d 808 (1988) (although the foreseeability of certain criminal acts by third persons has created a legal duty to some persons even absent a recognized special relationship, the use of the building in question by the plaintiff's attacker was not foreseeable). Contrast Tucker v. Sandlin, 126 Mich.App. 701, 705, 337 N.W.2d 637 (1983) (security guard in question [1] had actual notice of a life-threatening assault that apparently preceded the assault on the plaintiff, [2] promised the victim of the first assault that he would "take care" of the task of informing police of the assailant's presence, thereby undertaking a duty to all users of the ramp that he would do so and [3] failed to immediately notify police, an omission that expert testimony indicated was a breach of the standard of care applicable to a security guard). We do recognize, however, that in plaintiff's reply brief, he appeared to assert a claim of negligence against Tri-County, stating, "In the instant case, Plaintiff both pled and produced facts to the trial court which established security guard negligence by failing to remain visible, being derelict and de facto abandoning the guard's post in the parking lot, all in breach of the contract between the security guard company and the merchant." The last clause in this sentence reveals the flaw in plaintiff's argument: plaintiff is clearly asserting that the duty which it claims Tri-County negligently performed derived from the contract between Baldini, Inc., and Tri-County.

[11] In this regard, see also Douglas v. Elba, Inc., 184 Mich.App. 160, 457 N.W.2d 117 (1990). Fascinatingly, Douglas involved a "Harpo's Bar" in Detroit, id. at 161, 457 N.W.2d 117, which we presume may be the same establishment as was involved in this case. The plaintiff was sexually assaulted in a parking lot near Harpo's. Id. Harpo's was owned by the defendant Elba, Inc., which had contracted with the defendant Jabar Security Detective Agency, Inc., to provide outside security for its patrons. Id. One of the plaintiff's claims was that Jabar's duty to protect her derived from Elba's duty to protect its business invitees because of the contract between Jabar and Elba, id. at 162-163, 457 N.W.2d 117. As is readily apparent, therefore, the plaintiff's theory in Douglas almost exactly parallels the essence of plaintiff's theory in this case. The Douglas Court relied heavily on Williams to affirm the summary disposition granted to the defendants. The Douglas Court noted, citing Read v. Meijer, Inc., 178 Mich.App. 624, 626-627, 444 N.W.2d 151 (1989), Tame, supra, and Jones v. Williams, 160 Mich.App. 681, 686, 408 N.W.2d 426 (1987), that this Court has consistently affirmed the dismissal of claims against business proprietors for injuries sustained by invitees from acts committed by third-party criminal actors. The Douglas Court held:

In this case, the assault occurred in a lot near Harpo's Bar. Although a significant portion of Harpo's patrons parked their cars in the lot, we adopt the Jones reasoning and decline to impose liability for failing to provide security for an area over which defendant Elba had no control. As the Court in Jones stated, even if defendant Elba was the sole owner of the parking lot, ownership alone would not create a duty to provide security. Id. at 685, 408 N.W.2d 426. This is not a case where defendant Jabar was in a position to control Georges' [the assailant's] actions or to eject him from the parking lot. See Mills v. White Castle System, Inc., 167 Mich.App. 202, 203-204, 421" N.W.2d 631 (1988), lv den. 431 Mich. 880, 430 N.W.2d 150 (1988). Nor is this a case where defendant Jabar failed to utilize methods at its disposal to inform the police of the sexual assault or to attempt to frighten off the attacker. See Diomedi v. Total Petroleum, Inc., 181 Mich.App. 789, 450 N.W.2d 91 (1989). Because defendant Elba owed no duty to plaintiff, defendant Jabar did not derive a duty to plaintiff on the basis of the contract. [Douglas, supra at 164-165, 457 N.W.2d 117 (emphasis supplied).]

[12] Plaintiff also relies on Holland v. Liedel, 197 Mich.App. 60, 65, 494 N.W.2d 772 (1992). Holland relies on this Court's decisions in Scott v. Harper Recreation, Inc., 192 Mich.App. 137, 142, 480 N.W.2d 270 (1991), rev'd Scott, supra, and in Rhodes, supra, for its conclusion that where a defendant "voluntarily assumed the duty to provide security, a cause of action could exist if he was [sic] negligent in the discharge of this voluntarily assumed duty." Holland, supra at 64-65, 494 N.W.2d 772. Obviously, this Court's decision in Scott is no longer good law and, as we have observed above, there are inherent and implicit limitations on the holding in Rhodes. In any event, we are not persuaded that Holland provides a basis for departing from the holdings of the Supreme Court in Williams and Scott.

[13] We find the consideration in MacDonald of the defendant having formulated policies to deal with sod-throwing incidents to be questionable. In Buczkowski, supra at 99, n. 1, 490 N.W.2d 330, the Michigan Supreme Court stated:

Imposition of a legal duty on a retailer on the basis of its internal policies is actually contrary to public policy. Such a rule would encourage retailers to abandon all policies enacted for the protection of others in an effort to avoid future liability.

Similar concerns are implicated by consideration of the internal policies of the operator of an indoor or outdoor place of entertainment. Nevertheless, because MacDonald is not controlling in the case at hand, we need not consider whether MacDonald was correctly decided.

[14] Plaintiff repeatedly attempts to posit the central issue as related to the negligent performance by Tri-County's security guard of a voluntarily assumed duty, pointing out that the security guard was not wearing a uniform, that the security guard was sitting in an unmarked car, that the security car had no flashing light on top, and that the security guard was not watching the patrons get out of their cars but was instead reading a book or a magazine. Plaintiff then asserts, correctly, that the question whether a security guard was negligent in the performance of his duty is a question of fact for the jury. We simply note, however, that the question of the existence of a duty is one of law, to be decided by the trial court in the first instance. We hold that the trial court correctly decided this issue when it granted Tri-County summary disposition pursuant to MCR 2.116(C)(10).

[15] We repeat our observation that the duties actually contained in the contract fall considerably short of police protection.