MACDONALD v PKT, INC LOWRY v CELLAR DOOR PRODUCTIONS OF MICHIGAN, INC
Docket Nos. 114039, 115322
Supreme Court of Michigan
Decided June 26, 2001
464 Mich. 322
Argued October 11, 2000 (Calendar Nos. 5-6)
Stephen L. Lowry brought an action in the Oakland Circuit Court against Arena Associates (Pine Knob) and others for injuries suffered at a Pine Knob concert as a result of similar actions by concertgoers. He also alleged violation of the Michigan Handicapper‘s Civil Rights Act by failing to adequately accommodate his disability. The court, Deborah G. Tyner, J., granted summary disposition for the defendants on the ground that the sod throwing was unforeseeable and that they took reasonable measures to protect their patrons. The court also granted summary disposition for the defendants on the plaintiff‘s handicapper discrimination claim, holding that they provided the plaintiff with full and equal utilization of the facilities. The Court of Appeals, GAGE and ZAHRA, JJ. (MURPHY, P.J., concurring in part and dissenting in part), affirmed in an unpublished opinion per curiam, holding that Pine Knob owed no duty to protect the plaintiff because it was unforeseeable as a matter of
In an opinion by Justice YOUNG, joined by Chief Justice CORRIGAN, and Justices WEAVER, TAYLOR, and MARKMAN, the Supreme Court held:
Merchants have a duty to respond reasonably to situations occurring on their premises that pose a risk of imminent and foreseeable harm to identifiable invitees. The duty to respond is limited to reasonably expediting the involvement of the police, and there is no duty to otherwise anticipate and prevent the criminal acts of third parties. Merchants are not required to provide security personnel or otherwise resort to self-help in order to deter or quell such occurrences.
- Merchants do not have a duty to protect their invitees from unreasonable risks that are unforeseeable. A duty arises only on behalf of those invitees that are readily identifiable as being foreseeably endangered. The measures taken must be reasonable. A merchant has no obligation generally to anticipate and prevent criminal acts against its invitees. A merchant‘s only duty is to respond reasonably to such a situation. Fulfilling the duty to respond requires only that a merchant make reasonable efforts to contact the police. A merchant need not provide security guards to protect invitees from the criminal acts of third parties. That duty is vested in the government alone; to shift the burden to the private sector would amount to advocating that members of the public resort to self-help, a proposition contravening public policy.
- In MacDonald, the plaintiff created a question for the jury concerning whether she was readily identifiable as being foreseeably endangered once the sod throwing began. However, the Court of Appeals reliance on prior incidents as a basis for concluding that sod throwing was foreseeable must be rejected. The duty is not based upon the general question whether a criminal act was foreseeable, but, rather, once a disturbance occurs on the premises, whether a reasonable person would recognize a risk of imminent harm to an identifiable invitee. Because Pine Knob already had the police present at the concert, it had fully discharged its duty to respond. The trial court did not abuse its discretion in denying the plaintiff‘s motion to amend her complaint.
- In Lowry, the Court of Appeals panel erroneously relied solely on the absence of evidence concerning previous incidents of sod throwing to uphold the trial court‘s decision granting summary disposition for Pine Knob. Whether Pine Knob could have anticipated that sod throwing would be a problem does not answer the legally
relevant question whether the plaintiff was foreseeably endangered once it began on the day of his attendance. Because Pine Knob already had the police at the concert, it had no further obligation and had discharged its duty to respond.
MacDonald reversed.
Lowry affirmed.
Justice CAVANAGH, joined by Justice KELLY, dissenting, stated that the majority has created an unprecedented formulation of the duty a merchant has to protect its invitees from criminal acts of third parties, eradicating the tenets underlying Mason v Royal Dequindre, Inc, 455 Mich 391 (1997), control and foreseeability, and thereby providing that if the act that caused the harm could be charged as criminal, the merchant can never be liable if it attempts to contact the police. Such a conclusion ignores an entire category of criminal acts that arise solely because of the character of a merchant‘s business and the invitee‘s purpose on the premises.
A merchant has a duty to protect its invitees from defects or dangerous conditions on the land of which the merchant knows or has reason to know. A merchant also has a duty to protect its invitees from activities involving actors on the premises of which it knows or has reason to know. If the activity on the land is a criminal act, a court must determine whether the character of the merchant‘s business and the nature of the act are of a sort that the merchant could be expected to anticipate. If the nature of the criminal act is random, spontaneous, and thus unrelated to the merchant‘s business and the invitee‘s purpose for being there, the merchant has no duty. If, however, the nature of the criminal act is not random or spontaneous, and is related to the merchant‘s business and the invitee‘s purpose on the premises, Mason instructs that resort should be had to the control and foreseeability origins of liability, as set forth in 2 Restatement Torts, 2d, § 344, to determine whether the merchant has a duty.
The majority ignores the fact that the sod throwing, albeit potentially criminal, only occurred because of the nature of Pine Knob‘s business, i.e., a patron at Pine Knob would not be subjected to injury from such an activity if he were not present on Pine Knob‘s premises; it is unique to Pine Knob‘s business. The majority‘s concern for subjecting merchants in high crime areas to increased liability is overstated and misplaced. Random crimes in the community are unique to the community, not to the businesses present in that community. If the act that injured the patron is unique to the merchant‘s business, only then is it justifiable to say that the merchant has control over such acts and, thus, can foresee such future occurrences.
Marc S. Morse for the plaintiff-appellant in Lowry.
Dykema, Gossett, P.L.L.C. (by Kathleen McCree Lewis, Kevin P. Fularczyk, and Katherine M. White), for the defendants-appellants in MacDonald.
Secrest, Wardle, Lynch, Hampton, Truex & Morley (by Janet Callahan Barnes) for the defendants-appellees in Lowry.
Amicus Curiae:
Kirk, Huth & Davis, P.C. (by Robert S. Huth, Jr.), and Madden & Patton, L.L.C. (by Turner D. Madden), for International Association of Assembly of Managers.
YOUNG, J.
I. INTRODUCTION
In these consolidated premises liability cases, plaintiffs seek to recover for injuries they suffered when fellow concertgoers at the Pine Knob Music Theater (Pine Knob), an outdoor amphitheater that offered seating on a grass-covered hill, began pulling up and throwing pieces of sod. We granted leave to address the duty of premises owners concerning the criminal acts of third parties.
Under Mason v Royal Dequindre, Inc, 455 Mich 391; 566 NW2d 199 (1997), merchants have a duty to respond reasonably to situations occurring on the premises that pose a risk of imminent and foresee-
II. FACTUAL AND PROCEDURAL BACKGROUND
A. MACDONALD
In MacDonald, plaintiff Molly MacDonald attended a concert on May 4, 1995, at Pine Knob at which several bands were performing. Pine Knob offers seating on a grass-covered hill, as well as seating in a pavilion. Plaintiff received the tickets to the concert as part of a promotional giveaway by a local radio station sponsoring the concert. When plaintiff arrived at Pine Knob, she and a friend found a spot to sit on the hill. While a band called Bush was performing, some patrons began pulling up sod and throwing it.
Before the concert, the event coordinator had asked the bands to stop performing in the event that the audience members began throwing sod, and announce that the sod throwing must stop. There were also flyers posted in the dressing rooms of the bands requesting the bands to make an announcement to the audience to stop throwing sod. Pursuant to that request, the band finished the song and stopped performing, making an announcement that
While the next band, the Ramones, was performing, the sod throwing resumed. After that band refused to make an announcement to stop throwing sod, the event coordinator turned on the house lights. When the sod throwing continued, the band made an additional announcement demanding that it stop. Once again, several individuals who were involved in throwing sod were ejected from the theater. During the second incident of sod throwing, plaintiff fractured her ankle when she fell while attempting to avoid being struck by a piece of sod. Discovery materials indicated that there had been two sod-throwing incidents at previous concerts at Pine Knob, one incident in 1991, at a Lollapalooza concert, and another incident in 1994, at a Metallica concert.1
Plaintiff filed a complaint against, among others, PKT, Inc., also known as Pine Knob Music Theater and Arena Associates.2 Plaintiff alleged that Pine Knob was negligent in failing to provide proper security, failing to stop the performance when it should have known that continuing the performance would incite the crowd, failing to screen the crowd to eliminate intoxicated individuals, and by selling alcoholic beverages. Pine Knob moved for summary disposi-
The trial court granted summary disposition for Pine Knob pursuant to
Finally, the Court of Appeals held that the trial court abused its discretion in denying plaintiff‘s motion to amend her complaint pursuant to
B. LOWRY
In Lowry, plaintiff and a friend attended a Suicidal Tendencies/Danzig/Metallica concert at Pine Knob on June 22, 1994. Plaintiff suffers from multiple sclerosis and uses the aid of two canes or a wheelchair. Plaintiff was seated in the handicapped section at Pine Knob, which is located at the rear of the pavilion immediately adjacent to the grass seating. During the performance of Danzig, patrons seated on the lawn of Pine Knob began throwing sod. Plaintiff was allegedly struck with sod on the head and shoulders. Within a few minutes, the band stopped performing and an announcement was made requiring individuals to stop or the concert would not continue. Alcohol sales were cut off. Deposition testimony indicated that the sod throwing stopped within ten to fifteen minutes and numerous individuals were ejected from Pine Knob.6
Plaintiff brought a negligence action against Pine Knob, as well as Cellar Door Productions of Michi-
Defendants moved for summary disposition under
The Court of Appeals affirmed in an unpublished per curiam decision.7 As an initial matter, the Court of Appeals noted that both the parties and the trial court had failed to recognize that because Cellar Door was not the owner of the premises, it could not have been negligent under a premises liability theory.8 By implication, the Court also held that Cellar Door could not have violated plaintiff‘s rights under the MHCRA. With regard to Pine Knob, the Court of
One panel member dissented in part, arguing that “[a]lthough plaintiff did not present evidence regarding the number of previous sod throwing incidents or the dates and circumstances surrounding those previous occurrences, plaintiff nonetheless established the existence of a genuine issue of material fact with respect to whether the sod throwing incident at issue in this case was foreseeable.” The dissent further suggested that the reasonableness of Pine Knob‘s conduct with respect to protecting the patrons with disabilities from injuries should have been submitted to a jury.
This Court granted plaintiff‘s application for leave to appeal.9
We review de novo a trial court‘s decision to grant or deny summary disposition. The Herald Co v Bay City, 463 Mich 111, 117; 614 NW2d 873 (2000). A motion for summary disposition under
A motion for summary disposition pursuant to
IV. THE DUTIES OF A MERCHANT
We recognized in Mason the general rule that merchants “do not have a duty to protect their invitees from unreasonable risks that are unforeseeable.” Id. at 398. Accordingly, we held that a duty arises only on behalf of those invitees that are ” ‘readily identifiable as [being] foreseeably endangered.’ ” Id., quoting Murdock v Higgins, 454 Mich 46, 58; 559 NW2d 639 (1997). We further held that the measures taken must be reasonable. Mason at 405. In the
Mason and its companion case, Goodman v Fortner, both involved altercations that began in bars. In Mason, one of the plaintiff‘s friends, Dan Kanka, was involved in an altercation with another man, Thomas Geoffrey. The plaintiff was in a different area of the bar when the fight began, and only witnessed its conclusion. The bar‘s bouncers immediately ejected Geoffrey and, in an attempt to avoid more conflict, instructed Kanka to remain until Geoffrey left the premises. When the plaintiff left the bar some time later, Geoffrey assaulted him in the parking lot, breaking his nose and jaw. Id. at 393-394. We upheld the dismissal of the plaintiff‘s resulting premises liability claim on the ground that, because the plaintiff was not near the area where the initial fight occurred (and the defendant had no knowledge that the plaintiff was associated with either Kanka or Geoffrey), the defendant had no reason to believe that the plaintiff was in danger. Even viewed in a light most favorable to the plaintiff, we held that the facts did not support a finding that the attack on the plaintiff was foreseeable. Id. at 404.
In Goodman, the plaintiff‘s girlfriend, Theresa Woods, was involved in a bar room scuffle with the plaintiff‘s former girlfriend and mother of his child, Joslynn Lewis. The fight continued in the parking lot and then moved back inside the bar, with two of Lewis’ relatives joining the fray. Despite repeated requests that they call the police, the bar‘s bouncers refused, although they did remove Lewis and her group from the bar. When the plaintiff and Woods attempted to leave the bar, Lewis and her friends
As we made clear in Williams and Scott, a merchant has no obligation generally to anticipate and prevent criminal acts against its invitees. Indeed, as the Court of Appeals panel in Lowry correctly noted, we have never recognized as “foreseeable” a criminal act that did not, as in Goodman, arise from a situation occurring on the premises under circumstances that would cause a person to recognize a risk of imminent and foreseeable harm to an identifiable invitee. Consequently, a merchant‘s only duty is to respond reasonably to such a situation. To hold otherwise would mean that merchants have an obligation to provide what amounts to police protection, a proposition that we soundly rejected in both Williams and Scott.10 To the extent that, in Goodman, we relied upon evidence of previous shootings at the bar in assessing whether a reasonable jury could find that the Goodman plaintiff‘s injury was foreseeable, we
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. A merchant can assume that patrons will obey the criminal law. See People v Stone, 463 Mich 558, 565; 621 NW2d 702 (2001), citing Prosser & Keeton, Torts (5th ed), § 33, p 201; Robinson v Detroit, 462 Mich 439, 457; 613 NW2d 307 (2000); Buczkowski v McKay, 441 Mich 96, 108, n 16; 490 NW2d 330 (1992); Placek v Sterling Hts, 405 Mich 638, 673, n 18; 275 NW2d 511 (1979). This assumption should continue until a specific situation occurs on the premises that would cause a reasonable person to recognize a risk of imminent harm to an identifiable invitee. It is only a present situation on the premises, not any past incidents, that creates a duty to respond.
Subjecting a merchant to liability solely on the basis of a foreseeability analysis is misbegotten. Because criminal activity is irrational and unpredictable, it is in this sense invariably foreseeable everywhere. However, even police, who are specially trained and equipped to anticipate and deal with crime, are unfortunately unable universally to prevent it. This is a testament to the arbitrary nature of crime. Given these realities, it is unjustifiable to make merchants, who not only have much less experience than the police in dealing with criminal activity but are also without a community deputation to do so, effectively vicariously liable for the criminal acts of third parties.
In Williams, supra, the plaintiff was shopping in the defendant‘s store when an armed robbery occurred. As the plaintiff, a store patron, attempted to flee, the robber shot him. The plaintiff sued the defendant store, alleging that it breached its duty to exercise reasonable care in part by not providing armed and visible security guards for the security of the store‘s patrons. Id. at 497. This Court held that a merchant‘s duty of reasonable care does not include providing armed, visible security guards to deter criminal acts of third parties. Id. at 501. We reasoned that such a duty is vested in the government alone, and that to shift the burden to the private sector “would amount to advocating that members of the public resort to self-help. Such a proposition contravenes public policy.” Id. at 503-504. We further explained that
[t]o require defendant to provide armed, visible security guards to protect invitees from criminal acts in a place of business open to the general public would require defendant to provide a safer environment on its premises than its invitees would encounter in the community at large. Defendant simply does not have that degree of control and is not an insurer of the safety of its invitees. [Id. at 502.]
The rationale of this Court in Williams for not requiring merchants to provide security guards to protect invitees from the criminal acts of third parties is the same rationale for not imposing on merchants any greater obligation than to reasonably expedite the involvement of the police. That is, the duty to provide police protection is vested in the government. Williams, supra at 501. To require a merchant to do more than take reasonable efforts to expedite the involvement of the police, would essentially result in the duty to provide police protection, a concept that was rejected in Williams.11 Merchants do not have effective control over situations involving spontaneous and sudden incidents of criminal activity. On the contrary, control is precisely what has been lost in such a situation.12 Thus, to impose an obligation on the merchant to do more than take reasonable efforts to contact the police is at odds with the public policy principles of Williams.
In Scott, supra at 452, we expanded on this theme by holding that, even where a merchant voluntarily
To summarize, under Mason, generally merchants “have a duty to use reasonable care to protect their identifiable invitees from the foreseeable criminal acts of third parties.” Id. at 405. The duty is triggered by specific acts occurring on the premises that pose a risk of imminent and foreseeable harm to an identifiable invitee. Whether an invitee is readily identifiable as being foreseeably endangered is a question for the factfinder if reasonable minds could differ on this point. See id. at 404-405. While a merchant is required to take reasonable measures in response to an ongoing situation that is taking place on the premises, there is no obligation to otherwise anticipate the criminal acts of third parties. Consistent with Williams, a merchant is not obligated to do anything more than reasonably expedite the involvement of the police. We also reaffirm that a merchant is not required to provide security guards or otherwise resort to self-help in order to deter or quell such occurrences. Williams, supra.
A. MACDONALD
The Court of Appeals in MacDonald held that plaintiff presented sufficient evidence to create a genuine issue of material fact concerning whether the harm to her was foreseeable. We agree that plaintiff created a jury-submissible issue concerning whether she was readily identifiable as being foreseeably endangered once the sod throwing began. However, we reject the Court of Appeals reliance on incidents previous to the day in question as a basis for concluding that sod throwing was “foreseeable” in this instance. The Mason duty, as clarified here, is not based upon the general question whether a criminal act was foreseeable, but, rather, once a disturbance occurs on the premises, whether a reasonable person would recognize a risk of imminent harm to an identifiable invitee. As stated, a merchant has no obligation to anticipate the criminal acts of third parties.
The Court of Appeals also held that a genuine issue of material fact exists concerning whether Pine Knob took reasonable measures in response to the sod throwing. We disagree. Because Pine Knob already had the police present at the concert, Pine Knob fully discharged its duty to respond. Thus, we reverse the Court of Appeals decision denying Pine Knob‘s motion for summary disposition and reinstate the trial court‘s decision to grant summary disposition for Pine Knob pursuant to
We also reverse the Court of Appeals decision that the trial court abused its discretion in denying plaintiff‘s motion to amend her complaint to add certain theories including design defect, nuisance, and third-
B. LOWRY
In contrast with MacDonald, the Court of Appeals panel in Lowry relied solely on the absence of evidence concerning previous incidents of sod throwing to uphold the trial court‘s decision granting summary disposition for Pine Knob. This too was error. Whether Pine Knob could have anticipated that sod throwing would be a problem does not answer the legally relevant question whether plaintiff Lowry was foreseeably endangered once sod throwing began on the day of plaintiff‘s attendance. However, in accordance with this opinion, because Pine Knob already had the police at the concert, we hold that Pine Knob had no further obligation. Pine Knob discharged its duty to respond by having police present once the sod throwing began. Thus, we affirm the Court of Appeals affirmance of the trial court‘s decision to grant summary disposition in favor of Pine Knob. We also affirm the Court of Appeals decision to uphold summary disposition in Pine Knob‘s favor on plaintiff‘s handicapper discrimination claim. We agree that Pine Knob fully accommodated plaintiff‘s disability.
VI. RESPONSE TO THE DISSENT
The dissent accuses us of “uproot[ing] the entire basis for imposing a duty on merchants to protect their invitees that we expressed in Mason ....” Post at 349. We disagree.
In its effort to explain away the tort duty policy choices this Court adopted in Williams and Scott, the dissent reads into Mason rationales and holdings the dissent would have liked Mason to have adopted but which that opinion plainly did not embrace.
We believe that the actual policy rationales of Williams and Scott must be reconciled with the merchant‘s duty set forth in Mason. In reconciling these cases, we seek to establish a clear rule. We reject the premises liability rule that the dissent proposes because (1) it provides little guidance to any premises owner concerning its obligations under law and (2) despite its claims to the contrary, the dissent‘s rule would unfairly expose merchants in high-crime areas to excessive tort liability and increase the pressure on commercial enterprises to remove themselves from our troubled urban and high-crime communities. Mason undeniably cites 2 Restatement Torts, 2d, § 344, and comment f.13 However, in quoting
The dissent attempts to distinguish Williams from Mason and the instant cases by explaining that Williams involved “random crime” “unrelated to the character of the merchant‘s business,” post at 350, 352, and asserting that the sod-throwing incidents in these cases were “related” to Pine Knob‘s business because the nature of the harm was created by the of the Restatement.” Smith v Allendale Mut Ins Co, 410 Mich 685, 712-713; 303 NW2d 702 (1981). While the drafters of the Restatements “may sometimes strive to choose ‘the better rule’ or to predict or shape the development of the law, its influence depends upon its persuasiveness.” Id. at 713 (emphasis added).
Even where a particular Restatement section has received specific judicial endorsement, cases where that section is invoked must be decided by reference to the policies and precedents underlying the rule restated. Textual analysis of the Restatement is useful only to the extent that it illuminates these fundamental considerations. [Id. (emphasis added).]
Further, our rejection of § 344, and comment f, is consistent with the overriding public policy concerns discussed in this opinion.
“character” of its business. We do not agree with the dissent‘s focus on the “randomness” or spontaneity of a criminal act as being a relevant factor in determining whether an occurrence was foreseeable. The key inquiry is not whether the criminal act was “random,” but rather whether, as stated in Mason, the merchant has reason to recognize a risk of imminent harm to an identifiable invitee. In Williams, the merchant had no reason to expect the criminal attack. In Mason, we distinguished Williams and Scott by explaining that in Williams and Scott “[t]he merchants had had no previous contact with the assailants and could not have determined that the plaintiffs were in danger.” Mason, supra at 402. The rule set forth in this opinion is thus consistent with Mason as well as Williams and Scott: A merchant should not be expected to anticipate any type of criminal activity, whether “random” or otherwise, before there is some specific activity on the premises creating a foreseeable risk of imminent harm to an identifiable invitee.14 The merchant then must make efforts to notify those deputized to deal with such circumstances: the police.
Moreover, none should be mistaken that the test of “relatedness” proposed by the dissent would apply, if not now, then very soon, to virtually all criminal acts in commercial establishments. It cannot be questioned that there can always be, given crime‘s unfor-
Thus, the dissent‘s rule would have its most pernicious and devastating effect on the many commercial businesses that are located in Michigan‘s urban and high-crime areas. Avoiding this kind of adverse effect was one of the Court‘s primary concerns when it adopted the Williams and Scott principles.16 It simply
For these policy reasons, we, as the courts before us, decline to adopt the dissent‘s proposed rule.
VII. CONCLUSION
Consistent with our decisions in Williams, Scott, and Mason, we conclude that merchants have a duty to respond reasonably to situations occurring on the premises that pose a risk of imminent and foreseeable harm to identifiable invitees. We hold that the duty to respond is limited to reasonably expediting the involvement of the police, and that there is no duty to otherwise anticipate the criminal acts of third parties. Finally, we reaffirm that merchants are not required to provide security personnel or otherwise
In MacDonald, we reverse the Court of Appeals decision denying summary disposition. In Lowry, the decision of the Court of Appeals to grant summary disposition for Pine Knob is affirmed.
CORRIGAN, C.J., and WEAVER, TAYLOR, and MARKMAN, JJ., concurred with YOUNG, J.
CAVANAGH, J. (dissenting). The majority holds that under Mason v Royal Dequindre, Inc, 455 Mich 391; 566 NW2d 199 (1997), a merchant has a duty to “respond reasonably to situations occurring on the premises that pose a risk of imminent and foreseeable harm to identifiable invitees,” and the duty to respond entails nothing more than the merchant‘s attempt to contact the police. Ante at 325-326. This artful formulation of the Mason duty removes any inquiry into prior similar occurrences as part of the foreseeability analysis, reducing the foreseeability question to whether a merchant should have known that an ongoing occurrence on the premises could have harmed an identifiable invitee. Because the majority created this formulation of the Mason duty with brazen disregard for the principles that created it, I respectfully dissent.
I
In Mason, we had to determine whether merchants have a common-law duty to protect their patrons from criminal acts of third parties. To resolve this question, we examined the rationale behind imposing a duty on a person to protect another person endan-
After exploring the basis for imposing a duty on a merchant to protect its invitees, we explained that these same principles are embodied in
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
Comment f to § 344 states:
Since the possessor is not an insurer of the visitor‘s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.
In quoting § 344 and comment f, we recognized that the imposition of a duty on a merchant to protect its invitees from criminal conduct of third parties is contingent upon whether the character of his business, or past experience either in general or at a specific time, gives the merchant knowledge or reason to know that those acts may occur again. As noted in the quoted sections of the Restatement, this analysis includes a consideration of whether such acts had occurred in the past.
Following these premises liability principles, we held that “merchants can be liable in tort for failing to take reasonable measures to protect their invitees from harm caused by the criminal acts of third parties. The harm must be foreseeable to an identifiable invitee and preventable by the exercise of reasonable care.” Id. at 393. Clearly, our holding in Mason was
The majority introduces a version of the Mason duty that ignores the basis of our holding in Mason and instead holds that under Mason, a merchant has a duty to respond to ongoing frays on the premises, and the duty is only to make an effort to contact the police. This formulation essentially uproots the entire basis for imposing a duty on merchants to protect their invitees that we expressed in Mason by extinguishing the consideration of the character of the merchant‘s business and prior similar occurrences when deciding if the harm was foreseeable. Instead, the majority limits the foreseeability question to whether this particular fray would have harmed this particular plaintiff, without citing any legal support for its decision to alter the duty.
In reformulating the Mason duty, the majority overrules Mason to the extent that it relied on § 344 and comment f of the Restatement which clearly refutes the majority‘s clarified version of the Mason duty. Ante at 334, n 10. The reason the majority states for overruling this part of Mason is that § 344 and comment f are contrary to our holding in Williams v Cunningham Drug Stores, Inc, 429 Mich 495; 418 NW2d 381 (1988). In Williams, we stated that merchants are not ordinarily responsible for criminal acts of third parties because it is against public policy to require a merchant to anticipate crime in the community that may harm its invitees. The majority claims that the only way to reconcile Williams with the Mason holding that a merchant may be liable when the criminal act that harmed its invitee was foreseeable is to say
According to the majority, Williams closed the door to applying § 344 when deciding whether a merchant has a duty to protect its invitees from criminal acts because merchants cannot anticipate crime. A close reading of Williams, however, reveals that is not true. In Williams, we recognized § 344, but refused to apply it to the facts because the nature of the harm, random crime in the community unrelated to the merchant‘s business, presented the merchant with no degree of control over its prevention. Williams at 501, n 15. Thus, contrary to the majority‘s assertion, we recognized in Williams that application of § 344 depends on the facts of a case, i.e., the nature of the harm and degree of control a merchant had in each case.
In Mason, we discussed the Williams’ decision and cited Justice LEVIN‘s dissent in Alexander v American Multi-Cinema, 450 Mich 877; 540 NW2d 674 (1995), as support for distinguishing the Williams holding. Mason at 401-402, n 5. In Alexander, a theater patron was injured in a scuffle with another patron who was standing in line for a late night show. Justice LEVIN dissented from the majority‘s decision to deny leave, stating that he would grant leave to discuss a merchant‘s duty to protect its invitees from the criminal acts of third parties. Quoting § 344, Justice LEVIN
Contrary to the majority‘s assertion that the Mason holding is inconsistent with Williams, in Mason we recognized Justice LEVIN‘s dissent in Alexander as the method to distinguish the Williams holding and created a duty based on § 344 that essentially focused on
II
As the preceding discussion illustrates, premises liability law contains many nuances that, without complete consideration, may appear inconsistent. The majority has seized on this apparent, but vacuous, inconsistency and held that a clarification is necessary in this area of law. However, read closely, the
(1) TRADITIONAL PREMISES LIABILITY
Traditionally, a merchant has had a duty to protect its invitees from defects or dangerous conditions on the land of which the merchant knew or had reason to know.
(2) HYBRID PREMISES LIABILITY
Under hybrid premises liability, a merchant has a duty to protect its invitees from activities involving actors on the premises of which a merchant knew or had reason to know. The tricky part, however, is when the activity consists of criminal acts by third parties. If the activity on the land is a criminal act, it must be determined whether the character of the merchant‘s business and the nature of the act are of a sort that a merchant could be expected to anticipate. If the nature of the criminal act is random, spontaneous, and thus unrelated to the merchant‘s business and the invitee‘s purpose for being there, the situation falls into category three, discussed below. If, however, the nature of the criminal act is not random or spontaneous, and is related to the merchant‘s business and the invitee‘s purpose on the premises, as explained in Mason and Justice LEVIN‘s dissenting opinion in Alexander, we resort to the control and foreseeability origins of § 344 to determine whether the merchant has a duty. See Prosser & Keeton, Torts (5th ed), § 61, p 428 (stating that a possessor of land is required to take action when he has reason to
(3) THE EXCEPTION TO HYBRID LIABILITY
The exception to hybrid liability is when there is a criminal act by third parties on the premises, but the act is random and spontaneous, having no relation to the merchant‘s business other than that it is a business, the merchant has no duty. In the exception situation, the random, spontaneous nature of the act removes any degree of control a merchant has over the act occurring, thus making any application of the control and foreseeability origins of § 344 improper. See, e.g., Williams.
III
The facts of these cases must be examined to determine which of the three premises liability categories governs. Because the harm did not result from a physical defect on the premises, the act does not fall within the traditional premises liability category. Rather, the harm resulted from activity on the land, potentially criminal in nature, which requires us to decide whether the nature of the act qualifies it as a hybrid or exception situation. The character of defendant Pine Knob‘s business created the risk of harm to its invitees, by subjecting its patrons to view concerts in a venue where sod throwing had previously occurred. The sod throwing in these cases was, therefore, not random or spontaneous, was related to the invitee‘s purpose on the premises, qualifying these
Pine Knob charges its patrons to enter its forum to watch concerts, where part of the seating area for patrons is a sod-covered hill. Once the patron sets foot inside the venue, he has entrusted himself to the control and protection of Pine Knob, and his ability to protect himself from activities that may occur on the premises diminishes. Thus, contrary to the majority‘s claim, Pine Knob has better control over the activities of patrons it has chosen to host than the patrons themselves. The potentially criminal activity in these cases that occurred in this controlled environment was patrons ripping up sod from the hill and throwing it. The question becomes whether this act arose from the character of Pine Knob‘s business, or was random or spontaneous. The majority has manipulated the class of activity at issue in this case, sod throwing, to be strictly criminal. In so doing, the majority ignores the fact that this activity, albeit potentially criminal,1 only occurred because of the nature of Pine Knob‘s business. In other words, a patron at Pine Knob would not be subjected to injury from such a concert activity like sod throwing if he were not present on Pine Knob‘s premises; it is unique to Pine Knob‘s business. Because Pine Knob charged a fee for entry, subjected its patrons to seating on sod-covered ground, sod-throwing acts had occurred before,2 and the harm suffered was a result of plaintiffs’ purpose on the
Today the majority embarks on the unnecessary journey of clarifying the duty a merchant has to protect its invitees from criminal acts of third parties, as discussed in Mason. This clarification takes premises liability into an unfounded direction with far-reaching consequences.3 By eradicating the two profound tenets behind the Mason duty, control and foreseeability, the majority has created an unprecedented formulation of the duty providing that if the act that caused the harm could be charged as criminal, the merchant can never be liable if it attempts to contact the police. Such a conclusion ignores an entire category of criminal acts that arise solely because of the character of the merchant‘s business and the invitee‘s purpose on
In accordance with the original, unclarified Mason duty, in both of the instant cases I would deny summary disposition so that a jury may determine (1) whether the sod throwing was foreseeable, (2) whether the plaintiffs were identifiable invitees, and (3) whether defendant Pine Knob took reasonable measures to protect its invitees from the harm.
KELLY, J., concurred with CAVANAGH, J.
Notes
The following hypothetical example illustrates the fundamental problems with the majority‘s reformulation.
Defendant humane society allows persons interested in adopting animals to observe the animals through cages. There is a separate “dog wing” in which all the dogs are kept in individual cages. Patrons on the premises interested in adopting a dog are allowed access to the dog wing. A patron who is visiting the dog wing gets increasingly passionate about the dogs being cooped up and breaks open each cage, setting the dogs free. The dogs become scared and attack a family who was there adopting their new pet. Unfortunately, one of the children is severely injured. The humane society is familiar with this “passionate patron” syndrome, and it in fact occurred the previous day, killing a patron. Luckily for the humane society, under the majority‘s clarified Mason duty, this previous attack will not be considered, regardless of the number of times the attacks have happened, the humane society‘s experience with controlling the animals on its premises, and the experience the humane society has with the harm caused by “passionate patrons.” Rather, in the midst of watching the dogs viciously attacking patrons, all the humane society must do to avoid liability to the injured patrons is to make the effort to call the police. Thus, even though the character of the business created the risk of harm, the humane society had past experience with such mishaps, and the degree of control the humane society has over its patrons was great, there is no duty to protect. I cannot agree that this is a proper formulation of the duty.
Mason distinguished Williams by analyzing the merchant‘s ability to foresee imminent harm, i.e., awareness of a situation. However, as articulated in this opinion, we would not go so far as to consider specific prior incidents, as that would conflict with the general proposition in Williams and Scott that merchants are “ordinarily” not legally responsible to patrons and others on their premises for the criminal acts of third parties, as well as the premise that a merchant can assume that others will obey the criminal law until they actually do otherwise. See ante at 334-335.
The “relatedness” test proposed by the dissent states:
If the nature of the harm is random and spontaneous, and thus unrelated to the character of the merchant‘s business, the merchant cannot be expected to foresee its occurrence, and reference to prior similar occurrences is not justified. If the nature of the harm was created by the character of the merchant‘s business, reference to prior similar occurrences is justified because a merchant can be expected to foresee such harm happening again, in light of his prior experience with such acts. Post at 352.
Imposing liability on the business owner, poses the threat that businesses may move away from high-crime areas. See Homant & Kennedy, Landholder Responsibility for Third Party Crimes in Michigan: An Analysis of Underlying Legal Values, 27 U Tol L R 115, 147 (1995). See also McNeal v Henry, 82 Mich App 88, 90, n 1; 266 NW2d 469 (1978), stating:
In the majority of urban communities, both large and small businesses could not bear the heavy insurance burden which would be required to protect against this extraordinary kind of liability. Some of our big cities have more than their share of destructive and violent persons, young and old, who roam through downtown department stores and other small retail businesses stealing and physically abusing legitimate patrons. Guards are placed in the stores but those activities continue. We fear that to hold businessmen liable for the clearly unforeseeable third-party torts and crimes incident to these activities would eventually drive them out of business.