*1 Harper Recreation, RECREATION, INC HARPER SCOTT application by the 1993. On Decided October Docket No. 92995. Court, appeal, Supreme in lieu to the defendant for leave leave, judgment granting the of the Court of reversed judgment the circuit court. and the reinstated Wayne brought in the Circuit Court Andre an action Scott that, Recreation, Inc., alleging against Harper lighted guarded, night parking the and its club lot was responsibility protect voluntarily the defendant assumed gunman when an unidentified from an assault suffered Colombo, J., court, granted J. him face. The Robert shot in the Appeals, summary disposition for the The Court of defendant. P.J., JJ., Brennan, and reversed Doctoroff, and McDonald remanded, holding not re- that while the defendant was and patrons, providing parking sponsible for its because secure patrons, voluntarily it it so in order to attract advertised 122982). (Docket provide security assumed the No. court, Supreme remanded the case to circuit Court that, remand, regard ruled with Mich 882 On the court complaint, summary disposition both counts of amended 2.116(0(10). granted seeks should under MCR defendant be appeal. leave to curiam, signed by opinion per Cavanagh, In an Chief Justice Brickley, Riley, Griffin, Mallett, Boyle, and and Justices Supreme held: Court appropriate. Summary law, ordinarily required As a matter of merchant protect persons. Suits from criminal acts of third customers may theory are not maintained on the measures case, they this less than could or should have been. In effective guarantee plaintiff’s personal safety. did not i.e., Rather, advertised, provided all that it free, guarded. ample, lighted, and It did not advertise a crime- life, policy ordinary public render free from would haven any such unless it were both reasonable unenforceable entirely explicit. Reversed. Levin, dissenting, appeal leave should
Justice stated Opinion of the Court plenary Peremptory disposition, without considera- be denied. tion, opportunity briefing, argument, for the full oral curiae, profession should be reserved for to file briefs as amici is not in which the law is settled and factual assessment cases *2 required. to the circuit court for The cause should be returned disposi- summary motion for consideration of the defendant’s 2.116(0(10), Harper not until Recreation tion under MCR but specifically which it identifies one or more issues about genuine regarding any fact is no issue material claimed there affidavits, depositions, supported by admis- and the motion is sions, documentary or other evidence. (1991) reversed. (by Williams, E. Rhodes, P.C. Robert Laramie & Laramie), plaintiff. for the Feuer), (by Henk,
Kallas P.C. Scott L. for the & defendant. plaintiff The was shot while Per Curiam.
parking night a that had advertised a lot of club lighted guarded parking area. He sued the and night stating recovery. club, of several theories disposition, granted summary The circuit court believe which the Court of reversed. We appropriate, we judgment of the Court of therefore reverse judgment Appeals and reinstate the of the circuit court.
i Harper operated Recreation, Inc., Defendant night dancing.1 club with music and UBQ, Club The defendant advertised with written fliers that facts, This case has not been tried. The which are to be examined plaintiff, light are drawn from the in the pleadings most favorable to and, appropriate, deposition testimony. where from the Recreation, Scott Opinion op the Court provided representation "Free included Parking.”2 Lighted Security Ample evening plaintiff UBQ on the was at Club August Thursday, there 27, 1987. He had been preced- previously, thirty twenty over the times parked years. ing he Sometimes three or four parking lot, on the street. sometimes evening dispute that, on the There is lighted. August Fur- 27, the lot was fenced testimony deposition ther, from the it is clear guards plaintiff were and others present. midnight, UBQ after left Club At lot. in the club to his car
walked gunman, surprised by car, an unidentified he was plaintiff suffered him times. The shot six who eye. including injuries, the loss of an facial serious *3 ii complaint plaintiff and, several filed a The complaint against the later, an amended months the the basic facts He recounted defendant. recovery. alleged i Count case, theories of two complaint "Fraud and was entitled of the amended "Voluntary Estoppel.” As- n was labeled Count sumption.” fraud/estoppel count contained allegations: adver- The defendant’s
these factual tisements the by induce attendance fear of criminal intended to were public, general activ- "without plaintiff ity.” advertisements, the Because parking thus secure and area to be believed "reasonably parked himself He believed in the lot. activity” lot, and in the while criminal safe from normal relax his him to caused the advertisements representation in the was made plaintiff states that a similar commercials. radio defendant’s 444 Mich Opinion of the Court vigilance activity. result, a As for criminal surprise him at his car. The to assailant was able lighted fenced, the defendant but lot was personnel. provide security failed to plaintiff fraud/estoppel count, as- In the advertisements, that, virtue of its serted plaintiff accepted responsibility to the a thereby, provide lighted security parking and, to protect plaintiff sort from an assault of the plaintiff in this case. The added that occurred the defendant should be the existence of such an estopped denying from obligation. alleged assumed-duty count,
In the was intended the defendant’s eliminating bring patrons "by UBQ more to Club activity.” proposed that the fear of criminal He voluntary a under- the advertisements constituted taking (or, provide also a safe lot as he stated, care” to "to exercise reasonable lot). said to have breached safe this The defendant was failing voluntarily responsibility by assumed provide adequate security safe, to make the lot allowing and in the lot. an armed assailant to be summary dis- The defendant filed a motion for 2.116(C)(8), asserting position plaintiff under MCR a claim on which relief had failed to state granted. that, could under plaintiff The defendant asserted Michigan law, it to the did owe protect him from the criminal acts of Drug Cunningham parties. third Williams Stores, 495; NW2d granted summary initially dis- The circuit court *4 position assumed-duty count, alone. The on the upon Co, 177 Tame v AL Damman court relied Mich Court of (1989), App the 453; 442 where NW2d impose liability on a declined to recognized for the need merchant who Harper Recreation, Opinion of Court prem- voluntarily kept security guard on and ises. on the fraud/
Seeking summary count, well, renewed its as the defendant estoppel 2.116(C)(8) time, This it cited both MCR motion. 2.116(C)(10), adding thus an assertion and MCR as to material genuine there was no issue fact, as a judgment it was entitled and law. matter of 2.116(C)(8) ruling citing
Again under MCR Tame, granted disposi- summary the circuit court fraud/estoppel count. The court fur- tion on the relating "the fraud allegations ther held event” and therefore were not pertain to a future misrepresentation.” "actionable fraud sum, rulings provided In court’s circuit full favor. summary disposition its Appeals, in the Court of plaintiff appealed The disposition and re- which reversed the to the court for further manded the case circuit proceedings. Court of its with the Appeals began analysis
assumed-duty count of the amended distinguished It Williams as non- complaint. case, case con- saying feasance regard a volun- alleged misfeasance with cerns obligation provide security. assumed tarily Appeals explained: Court of bar, given holding in Wil- case In the at responsi- liams, it is did have a clear defendant patrons. secure its bility However, allegedly so defendant did because patrons, order to attract advertised this fact *5 441 446 444 Mich Opinion of the Court security. duty voluntarily assumed the distinguishes the case at bar from Wil- This fact alleges complaint clearly active liams. Plaintiff’s secure in that advertised misconduct parking, defendant provide the allegedly failed to same but Although defen- the time of assault. at duty provide security, did not have the dant once to do patrons it so and relied on this fact did there, if of action could exist business a cause performance of that negligent its defendant the risk of responsibility thereby increased patrons. complaint, plaintiff In has harm to alleged the risk of harm increased causing pa- parking, thereby secure trons, including plaintiff, wary to be less of crimi- activity. The extent of the assumed nal defendant would involve factual advertisements and a based on issues security actually provided, and corresponding standard of care. [192 142-143.]
Turning
fraud/estoppel count, the Court
to the
of a cause of action
of
noted
elements
agreed
fraud,3
the circuit court that
for
future
with
give
promises
cannot
rise to such an action.4
disputed
However,
the Court
the circuit court’s
3
general
fraud it
“The
rule is that
to constitute actionable
(1)
representa
appear:
made a material
must
tion;
That defendant
(2)
(3)
false;
he
knew it
it was
that when
made
he
false,
recklessly,
any knowledge
made it
without
of its
(4)
assertion;
positive
it with the
truth and as a
intention that
plaintiff
that he made
(5)
upon by plaintiff;
it should be acted
in reliance
(6)
upon it;
thereby
that he
acted
proved
injury.
facts must be
with a
suffered
reasonable
Each
these
degree
certainty, and all of them must be found
exist;
recovery.”
of them is fatal to a
the absence of
one
Co,
330, 336;
[Hi-Way
398 Mich
Motor Co v Int’l Harvester
(1976),
quoting
Heigho,
Candler v
NW2d
(1919).]
175 NW
noted, however,
misrepresentation
that "a fraudulent
Court
upon
may
performance.” Hi-Way
intention of
made
bad faith without
be based
Co,
explained
It
iv appeal. for Ob- applied leave upon ruled the circuit court had not serving motion for defendant’s 2.116(0(10), the case to under MCR we remanded court, retaining jurisdiction. while circuit and decide the hear circuit court instructed Mich motion. 442 parties, the submissions considering
After that, regard with to both the circuit court ruled complaint, amended summa- counts of the 2.116(0(10). under MCR should enter ry disposition here, further consi- now for The case has returned application for leave deration of the defendant’s appeal. 444 Mich Opinion op the Court
V
questions regarding
We noted Williams that
duty are for the court
to decide as a matter of
jury ordinarily
law.
We conclude as a matter of law that reasonable care that a merchant owes his invitees armed, providing does not extend to secu- visible rity guards protect customers from the criminal parties. acts insurer of the sons of third The merchant is not an invitees, of his and for rea- public policy responsi- he does not have the bility ises. providing police protection prem- on his
[429 504.] *7 present plaintiff case, In the the seeks to avoid by relying principle the rule of Williams that a on the person voluntarily who undertakes a re sponsibility can be held if liable the volunteer’s negligence proximate injury.6 is a cause plaintiff attempts also to assert action for fraud. voluntarily
To the extent that this defendant any obligations, assumed the exact terms of its undertaking ing. explicitly were in stated its advertis- (a) promised parking free, It that was opinion obliga in Our Williams also included a discussion the persons premises. tions of invitors and others to Mich 498-500. who enter their 6 See, Co, generally, Smith v Allendale Mutual Ins Recreation, Scott op Opinion the Court (d)
(b) (c) guarded.7 ample, lighted, In his complaint, plaintiff the seeks to infer amended advertising also vol- that the defendant the from generally, unteered, to exercise reasonable more plaintiff provide parking lot.8 The safe to a care obliga- voluntarily assumed that these maintains giving liability breached, rise to tions were negligent breach the duties. and for fraud complaint, Examining plaintiff’s the one finds lighted lot and fenced. the that defendant’s parking evidently free Further, and am- the park ple, plaintiff the to in lot since the was able allege a fee. and does not respects only the Thus two which there were repre- plaintiff of the defendant’s asserted a breach alleged First, provide the he defendant sentations. keep personnel security to the fail "did to parking lighted in a and safe lot 'secure’ fenced contrary patrons, to its Defendant’s condition for express representations.” However, the owner of deposition corporation in his stated the defendant guards present testimony security were three evening. Indeed, stated guard deposition testimony that a own lot he and was was there at the when arrived him shot.9 assist after he was agreement "security parking” appears There to be that the words private parking by one or more that the lot would be attended meant implied guards. additionally security parking parties. Whether the words disputed by activity is lot would be free of criminal above, complaint also includes 8 As noted amended that, advertising, voluntarily through the assertion assumed its (not just attempt provide) provide a safe and, However, today’s no claim lot. contains person expect society, could a merchant reasonable activity. guaranteed completely free of all criminal haven Williams, Mich 502. *8 guard he walked that he not see the as testified did car, testimony in record that there is no from the club to the but absent, improperly engaged, guard otherwise derelict in or 444 Mich Opinion of the Court principal allegation Second, the of his amended complaint "the Defendant did breach its by failing provide adequate to the Plaintiff parking failing safe, to make the lot implement adequate security procedures keep activity, allowing the lot free of criminal parking lot, armed assailant to be in its any attempts being per- by security without made prevent, of, sonnel to or warn said assault.”10 But the defendant did not advertise that parking would "make the lot safe” or activity” "lot free of criminal never claimed —it ability or the intention to create an environ- guaranteed ment that was to be free of crime. The specific security instead advertised mea- (a) designed sures to decrease the likelihood of (b) correspondingly crime, and to decrease the anxiety patrons. Indeed, felt because the defen- put place promised security dant measure, each it is reasonable to assume that the defendant did reduce the incidence of crime in its area. required approaching Common sense is a case promise specific steps like A this. to take to reduce danger promise just is a to do that —not a danger. to eliminate the Manufacturers of equipment, normally promise, instance, ex pressly by implication, danger injury or that the rarely, they promise ever, will be if do reduced — L danger injury that all will be eliminated.11 ikew ise, neither this defendant’s nor the (or alleged guard agent his duties. Neither is it the defendant to intervene other corporation) presence, knew of the assailant’s but failed timely properly. agree plaintiff’s estoppel 10 We with the Court of is, theory facts, on these a variant of his claim that the defendant voluntarily assumed duties that were breached in this case. 11See, generally, Westry Helmets, Inc, v Bell *9 Harper Recreation, 451 Opinion the of Court guarantee place put a in constituted of measures safety.12 plaintiff’s personal the allegation that he the We also note vigilance,” with relax his normal "induced to injured.13 that he was assaulted and the "result” significant to the Court of assertion This "plaintiff alleged Appeals, recited, has de- which by advertising the .risk harm fendant increased including causing patrons, parking, thereby secure plaintiff, activity.” wary If to less of criminal be theory liability were ac- of causation and this cepted, unnecessary would be an
the defendant’s in this observable detail case— vigi- might security diminished measure cause lance. reject a merchant who the notion that
We thereby property visibly "in- safer has makes causing patrons to be the risk of harm” creased in that a In we held Williams anxious. less obligation provide ordinarily to has merchant against guards protect security or to customers persons. Today, we committed third crimes adopt theory of which a to a law under decline effectively obliged to take would be merchant measures.14 analysis agree in we the offered Thus with grant- upon Tame, circuit court relied which the disposition. ing summary Tame, In the Court of 12 Williams, public light policy considerations discussed In guarantee personal cannot of another a (We representations. ambiguous from from circumstances or inferred do not limit contract, provide person’s right language, a in clear another.) security personal bodyguard service or 13 patronized deposition, he did not claim that In his parking, representations regarding but he said club because of again vigilance while in the defendant’s that he relaxed lot. 14 oblige Likewise, providing a a does not measure Inc, Borman’s, practice. 188 Mich Lee v to continue merchant App Abduloor, App 247; (1991); 653 Theis NW2d (1988). 435 NW2d 444 Mich Opinion op the Court Appeals adopt policy imposes "decline[d] to good liability who, on a merchant in a faith effort prevent activity crime, to deter on its penalize protection, fails all criminal premises.” policy "[s]uch It said would
merchants who some measure of opposed as to merchants who take no such measures.” 177 Mich 457.
The Court of returned to this area Detroit, Rhodes v United Jewish Charities of App 740; The Court held *10 party voluntarily undertaking provide that a protection nonnegligent manner,
must do so in a question Rhodes, and said that the in whether a guard negligent performance was in the of his question jury. duties, However, was a for the Rhodes regarding guard is silent the in manner which the alleged negligent. was to have been To the extent implies agreement provide that Rhodes that an security warranty guarded is an actionable that the activity, area will be safe from all criminal it is Michigan inconsistent with law. holding
The central of Williams is that mer- ordinarily responsible chants are not for the crimi- persons. present nal acts of third attempt suit is an holding by invoking to circumvent principle person the improperly discharging that a can be held liable for voluntarily undertaken However, function. the rule of Williams in remains voluntarily force, even where a merchant takes precautions.15 safety may Suit not be maintained theory on the the measures are less they effective than could or should have been.16 Liedel, (1992), In Holland v the Court of affirmed a verdict in favor of a tenant who was apartment building. assaulted in the our area of her We reserve opinion regarding application, the in the area of landlord-tenant law, principles of the discussed the case. example, plaintiff complained papers For the in the filed on provision guards remand that the defendant made no for the to take Harper Recreation, Dissenting Opinion Levin, J. explained principles likewise in Williams cannot be for fraud us that an action
lead to hold grounded case. The defendant the facts of this on provided it It did advertise all that advertised. ordinary public life, and haven from a crime-free policy prom- unenforceable would render entirely both reasonable unless were ise explicit. vi opinion, summary stated this For the reasons 2.116(C)(8) properly disposition was under MCR aspects granted amended on all of the upon specific complaint, except those based allegation failed challenged personnel. allegation That disposition summary motion defendant’s 2.116(0(10), under MCR appropriate paragraph court under that of the testimony light deposition rule, plaintiff and others. Ap- judgment Court of
We reverse *11 judgment peals circuit and reinstate the 7.302(F)(1). MCR court. Boyle, Riley,
Cavanagh, C.J., Brickley, and JJ., Griffin, Mallett, and concurred. (dissenting). deny I leave J. would Levin, appeal.__ bathroom, potential that existed a or use the and there thus
breaks regarding unguarded. offer no view other factual for the lot to be We arise, important might as where situations measure is proximately absent, entirely injury promised specifically is and is However, emphasize holding thereby. the core caused we public responsible maintaining Williams: Merchants are not preventing order or crime. Opinion by Dissenting Levin, J.
I Harper Ample Recreation advertised "Free Lighted Security Parking.”1 argu- The majority mentatively language2 stating: construes this
—that this does not mean Recre- guaranteed a haven promised ation to "provide (Em- be completely free of all criminal activity.”3 added.) phasis
—Harper Recreation "did not it advertise would 'make the lot safe’ or a 'lot ”4 added.) free of criminal activity.’ (Emphasis
—Harper Recreation "never claimed the ability or the intention to create an environment guaranteed to be free was added.) (Emphasis crime.”5 defendant, Harper Recreation, Inc., doing business as Club UBQ, 2.116(C)(8) summary disposition filed a motion for under MCR (10). (0(10) genuine A motion under subrule asserts that there is "no any specifically issue as to identify material fact.” Such a motion "must moving party the issues as to which the issue.” believes there is "Affidavits, genuine tary admissions, depositions, or other documen- support grounds "required” evidence asserted” are judgment (C)(10). 2.116(G)(3) sought when on the basis of subrule MCR (4). (C)(10) Although subrule was mentioned in the motion for disposition, "genuine the motion did not assert the absence of a issue "specifically identify” as to any material fact.” Nor did the motion genuine issue about which was claimed there was no issue. Nor affidavits, supported by admissions, depositions, was the motion documentary other evidence. majority’s contrary following decision is to the rule of law: alone, Where a contract is to be construed its terms it is is interpret it, meaning the obscure, of the court to but where its depends upon and its construction other and extrinsic written, question
facts pretation connection with what is of inter- 2d, Trial, jury. must be submitted to the Am Jur [75A 802, pp § 407-408.] Austin, People See 3Ante, p n 8. 4Ante, p 450.
5 Id. *12 Harper Recreation, Dissenting Opinion Levin, J. this nor defendant’s
—"[N]either guarantee put place constituted measures added.) (Emphasis safety”6 plaintiff’s personal —Harper not a crime- "did advertise Recreation (Emphasis ordinary .”7 life . . . from free haven added.) Harper however, claim, Recre-
Scott did equivalent promised him the secret service ation protection. Harper claimed, rather, Recre- He provide adequate security to make "to ation failed adequate "implement parking safe” and to the security lot procedures keep criminal lot free of added.) (Emphasis activity .. . .” ii allegations in Scott’s com- To the extent appropriate plaint and fair construc- overstate an Ample "Free would constitute tion of what Security Parking,” Lighted entitled to an Scott is opportunity the Court of on remand from complaint restat- Court to file an amended or this alleges, e.g., complaint ing claim so that failed "to ade- Recreation quate [reason- lot to make the adequate security "implement ably] safe” and to [reasonably] keep procedures free the lot activity.” criminal complaint appears Scott, in his amended
It granted, al- filed before undertaking express leged to exercise reason- majority’s care, characterization that the able "provide alleging complaint of his —as completely guaranteed all free of to be a haven 6Ante, pp 450-451.
7Ante, p 453.
456
hi reads Rhodes v United Jewish The majority Detroit, Charities of Mich App 459 NW2d (1990), stating as "that a party voluntarily undertaking provide to protection must do so in a nonnegligent manner.”9 That statement finds sup- complaint alleged: The by 19. That undertaking provide virtue of the Defendant’s to lot, duty a "secure” the Defendant assumed a to its
patrons provide to exercise reasonable care to same. syllabus prepared by Reporter Opinions of for Rhodes reads as follows: brought Janice Wayne Rhodes an action in Circuit Court against (ujc), United Jewish Charities of Detroit Jewish Voca- Community Workshop tional Services and (jvs), Guardian Services, Guard Anthony King. James Crawford and Plaintiff alleged parking leased alleged that, by King that she guarded was assaulted in a fenced and ujc by ujc adjacent lot building owned to a in which jvs space employer. to and Plaintiff further agreement under the terms of the lease between ujc jvs obligated provide lot, jvs, and security to on the jvs and that contracted with Guardian for services. court, J., Foley, granted Thomas summary disposition J. against plaintiff jvs negligence on her claims of ujc, and plaintiff Guardian. The court also denied leave to amend her complaint contract between allege third-party to beneficiary she was a ujc jvs. appealed. Plaintiff The Court of held: person voluntarily 1. performance When a assumes the of a duty, person required perform is carefully, it omitting accomplishing assumed the ordinarily prudent person to do what an would do in ujc Here, jvs the task. voluntarily when providing protection guards in the form of Guardian, upon from that the became incumbent them to protection negligent. in a manner that was not Because question negligence properly jury, one for the granting trial summary disposition. court erred in properly 2. argued plaintiff Because it can be was a
third-party beneficiary ujc of the contract between jvs, shall, remand, granted on leave to amend her complaint. Reversed and remanded. Harper Recreation, Scott Dissenting Opinion Levin, J. the Restatement:
port undertakes, or for consid gratuitously One who he eration, to another which to render services protection of necessary for the recognize as should liability things, subject person or the other’s resulting from his physical harm to the other perform care reasonable failure exercise (a) such care if his failure exercise undertaking, (b) harm, the harm is risk increases upon the the other’s reliance because of suffered undertaking.[10][Emphasis added.] *14 in speaks terms Rhodes —which nothing I find man- "nonnegligent in a providing protection following statement justifies ner” —that opinion: majority implies agree that an the extent that Rhodes
To warranty provide security an actionable ment to is guarded from all crimi area will be safe that law.[11] Michigan activity, it is inconsistent with nal [Emphasis added.]
IV
contend,
for-
not
either
Recreation
did
Harper
in its
informally,
or
mally,
papers,
in its motion
brief,
a
issue
genuine
there was an absence of
that
on the factual
issue whether
material
fact
personnel.
provide security
had failed to
did not
in the trial court
Recreation
depo-
that Scott’s
contend
in the Court of
security guard
"that
testimony established
sition
Torts,
2d,
p 135.
§
Restatement
11Ante, p 452.
there to assist him after he was shot.”12
Because trial, there has been no and a motion (C)(10) under subrule filed,13 was not properly majority errs in making the following findings of fact:
—"the put place defendant promised each measure”;14 provided all it adver- —"[t]he tised.”15
The majority also errs in stating ex cathedra public policy requires it pronounce crimped and stingy construction of "Free Ample Lighted Parking.”16 Security
The majority states:
Suit may not be maintained on
theory
safety
measures are less effective
they
than
could or should have been.16
regarding
16. . . We offer no view
other factual situations
might arise,
important
that
specifically promised
proximately
holding
taining public crime![17] order or *15 12Ante, p 449.
13See n 1.
14Ante, p 450.
15Ante, p 453.
16 majority states: It did not life, advertise a ordinary crime-free haven from public policy
and unless it any would render unenforceable entirely explicit. [Ante, were both p reasonable and 453.] 17Ante, p 452. Harper Recreation, Levin, J. Opinion Dissenting
Reading foregoing and footnote to- text majority appears gether, has made a it though determination, there has been even factual (0(10) was trial, a motion under subrule and recognition properly that a motion In filed.18 not (0(10) properly filed, the was not subrule under majority light deposi- of the not "in should decide testimony others” "the tion specific allegation failed to the defendant pre- security personnel,”19 provide not and should Harper establishing from at trial clude Scott "safety measures” not did Recreation provide. agreed to
VI properly rule, as a matter cannot This Court per- provided security law, that Recreation pres- security guard simply was because sonnel may have the lot Scott arrived ent at when shot, if him after he been there "assist” duty guard security not, fact, in the on during way his from the Scott made interim which building shot. That is and was automobile guard security say had, as a matter that the every say, It is to law, to on second. however, of the the whereabouts during guard whether, in the the interim —and important safety majority, mea- "an words entirely promised specifically [was] [was] sure questions prop- that cannot factual absent”20—are erly of law this Court as a matter be resolved on them at the trial focus without level._ 1. See n 19Ante, p 453. Ante, p n 16. *16 444 Mich Dissenting Opinion Levin, J.
VII procedures decision is violative of the Today’s in that requiring established the court rules (C)(10) a motion under subrule party filing genuine —assert there is "no issue as to any material Recreation did not so fact” — assert;
—"specifically identify the issues to which as moving there is party genuine believes issue” (subrule [G][4]) Harper spe- Recreation did not so — cifically identify issue; an "affidavits,
—support deposi- motion with tions, admissions, documentary other evi- [or] (subrule -Harper dence” Recreation did not [G][5]>— support motion; so its all did was state it’s (0(10) motion based on was subrule as well as (0(8) nothing more. decision is
Today’s only violative procedures established in the court rules. The decision an deprives Scott of opportunity re- spond argument, to the forth put for the first time circulated, when this curiam per opinion was on deposition admission that a security guard was at the lot Scott when arrived and was shot, bars, there to assist him he after as a law, matter of any response through factual testimony or might witness witnesses tend to establish that the security guard had been absent for a period considerable of time before the was, assault reality, absent.” "entirely Ante, n p 452, 16. opinion
Footnote 9 the majority states: "there is no testimony guard the record that absent, improperly engaged, derelict otherwise A question his duties.” different pre- would be sented if Harper Recreation had "specifically” (0(10) identified, requires, as subrule as issue Harper Recreation, Dissenting Opinion Levin, J. *17 genuine there was it believed which about issue, security guard "was whether the issue engaged, improperly or otherwise derelict absent, Harper did not Recreation Because duties.” specifically identify issue, Scott cannot so properly faulted, cannot Recreation testimony prevail, in the there is "no because regard. in that record”
VIII
plenary
disposition,
Peremptory
without
consid-
argument,
oppor-
briefing,
eration,
and an
full
oral
profession
tunity
to file briefs as amici
for the
for
in which the
curiae,
reserved
cases
should be
is not re-
factual assessment
is settled and
law
quired.21
case,
as indicated in the
In
instant
21
(1992) (Levin,
914,
J.,
People Wright, 439 Mich
914-915
dissent
v
Ed,
322;
314,
ing);
Chippewa Valley
422
Bd of
430 Mich
NW2d
Roek v
(1988)
J.,
Co,
(Levin,
opinion);
separate
Ins
Grames v Amerisure
680
434
434
(1990) (Levin,
Little,
867,
J., dissenting); People v
Mich
Mich
868-875
(1990) (Levin, J.,
752,
dissenting);
769-770; 456
237
NW2d
(1990) (Levin, J.,
Wrenn,
885,
dissenting);
People v
434 Mich
885-886
896,
(1990)
Center, Inc,
Activity
434 Mich
899
Northwest
Harkins v
(Levin, J., dissenting); Dep’t
v
Commer
of Social Services American
(1990) (Levin,
Co,
508, 515;
Liability
435 Mich
Ins
cial
J., separate opinion);
(1990) (Levin, J.,
Garcia,
Leave to should be denied. Hansen, 785, 791; 1468; See Schweiker v 450 US 101 S Ct L67 Ed (1981) ("A J., (Marshall, dissenting) 2d reversal is a rare disposition, usually reserved this Court for situations which the stable, dispute, is law settled and the facts are not in and the decision error”); 438, clearly Flynt, 457-458; below Leis v 439 US 99 S Ct (1979) 698; (Stevens, J., dissenting) 58 L ("Summary Ed 2d 717 palpably reversal 'should be reserved clear cases of . . . error.’ Tulsa, (1974)] Eaton v 39 L US S Ct Ed 2d 693 [94 J., [Rehnquist, dissenting]”).