*1 186 WAGNER v REGENCY INN CORPORATION 116216, 17, 1990, Docket Nos. April 116217. Submitted at Detroit. 5, 1990, appeal sought. Decided November at 9:25 a.m. Leave to Wagner raped Gail was robbed and in the lot of the Regency Inn in Detroit while she was on the to rent a Systems vehicle from Americar Rental which maintained a lobby Regency Thereafter, rental office in the of the Inn. she brought damages Wayne Court, an action for Circuit nuisance, against based on Regency the maintenance of a Inn Corporation, Patel, Patel, Jetendra B. A.J. and Rashmi B. Desai, individually doing Regency Corpora- business as Inn tion, Corporation, doing and Consolidex business as Americar Systems, alleging permitted Rental the defendants had activity place premises, criminal thereby to take creat- ing public ultimately injuries. a nuisance which resulted her Regency brought indemnity against Inn a cross-claim for Amer- Regency icar. Both Inn and Americar moved for disposition plaintiffs Regency of the nuisance claims. Inn also summary disposition moved for of its indemnification claim against court, Finch, J., Americar. The trial Sharon Tevis summary disposition plaintiffs claims, denied holding plaintiff upon that the had stated a claim which relief granted pled adequate support could be had facts to claim, granted Regency summary disposition but of its Americar, indemnity, holding claim for as a holdover tenant, indemnity provision was bound contained in the predecessor Regency lease entered into with a Inn. Americar appealed by granted, appealed. leave Inn cross Appeals The Court of held: damages public 1. An action for based on the maintaince a who, against possessor by allowing nuisance lies of land upon known criminal to be activities committed permits atmosphere criminality the creation of an poses significant public safety thereby risk leads to the References 2d, 45, 33-37; Liability Am Jur Parking Nuisances Premises §§ §§ proprietor’s liability facility patron. for criminal attack on 49 ALR4th 1257. public. against member act of a criminal commission documentary to raise presented evidence plaintiff sufficient question regarding created whether the defendants of fact per upon in fact their se and *2 a nuisance and maintained damages. led which to her question properly found that there no 2. trial court The signed by Regency the lease indemnitee under that was the Americar, properly as held that The trial court also Americar. tenant, prior by provision of the the a holdover was bound Americar, clearly provision, The drafted written lease. lease place provides indemnity in or about for acts which take for portions of the those leased indemnity only provision that the trial court ruled The enforceable, finding regarding the but made no was valid and scope liability. the that the trial court’s Americar’s To extent of ruling may render liable for indemni- be construed to wrongdoing, Regency it is acts of intentional fication of Inn for language indemnity the con- void The of and unenforceable. indemnify may liable to tract be construed to render Americar arising liability Inn for out its sole and concurrent of negligence. Affirmed. C.J., concurring part dissenting part, Danhof, and indemnity, agreed majority question the but with the adequately plaintiff failed a claim would hold that to state grant upon granted. relief reverse which can be He would and disposition the defendants. for — 1. Nuisance Public Nuisance. public right A nuisance is an unreasonable interference with a general may public; to the sustain common circumstances right hоlding public a that an with a is unreason- interference public significantly able include interferes whether it with health, comfort, convenience; safety, peace, or it is whether law, proscribed continuing it is nature or or whether effect, and, produced permanent long-lasting has or as the know, significant upon actor knows or has effect reason has a rights. public — — 2. Nuisance Possessors of Land Acts of Third Persons. possessоr upon person an of land which a third conducts liability subject activity that causes nuisance is where possessor activity knows or has reason know being it causes or involves unreasonable conducted possessor activity risk of nuisance consents to prevent fails to care to the nuisance. exercise reasonable Opinion op the Court Liability — — 3. Nuisance Premises Criminal Activities. against possessor An action for nuisance was held to lie who, by allowing land known criminal activities to be commit- upon premises, permitted atmosphere ted the creation of an criminality posed significant public safety; risk to person injured activity as the result of that criminal under damages injuries those circumstances recover for those possessor from the of the land. Materna, Hires & Custer T. (by Michael Ma- terna Custer), and Fred A. for the plaintiff.
John F. Sopt, for Corporation. Consolidex Lizza & P.C. Mulcаhy, (by David M. Lawson James H. Mulcahy), Corporation. Murphy Danhof, C.J.,
Before: and T. M. Burns,* JJ.
Murphy, J. Defendant Consolidex Corporation, doing business as Americar Rental Systems, ap- peals leave granted from the trial court’s denial of its motion for summary disposition under MCR 2.116(C)(8) (C)(10), and on plaintiffs claims for nuisance per se and nuisance in fact. Americar also appeals from the trial grant court’s of sum- mary disposition in favor of defendant Regency Inn Corporatiоn on its against cross-claim Ameri- car for indemnification. Defendant Regency appeals cross from the trial court’s denial of sum- mary disposition plaintiffs on nuisance claims. We affirm. 25,
On October plaintiff, a resident of the Grand Rapids area, traveled to Grosse Pointe to attend a garage sale. After deciding purchase furniture, some plaintiff telephoned defendant to arrange for a rental vehicle in order * Appeals judge, sitting Former Court Appeals by on the Court of assignment. Opinion of the Court Plaintiff was advised the furniture. to move garage sale was closest to Americar office off the Interstate Inn situated at the expressway Harper Conner and
on the corner City of Detroit. Regency Inn and entered to the Plaintiff drove building lobby Ameri- defendant where the hotel car was located. While standing
plaintiff at arranging truck, men rent a twо the counter came out of tiff men then left the plain- behind
the hotel bar and stood suggestive harassing manner. The in a her building, plaintiff completed and transaction. her rental plaintiff
Shortly thereafter, out to the ho- went parking her checkbook from her lot to retrieve tel plaintiff car, heard her she walked toward car. As open. She turned around door of a van slam standing lobby hotel the men from the see one of holding shotgun. The door of the van at other man pushed plaintiff grabbed and behind After the men shut into the van. her raped plaintiff. They they door, robbed and van lot drove the van out of then plaintiff, only partially dropped clothed, out onto plaintiff expressway. passer-by A rescued hospital. her to a took appeal, Americar,
Defendant appeal, Regency Inn, on cross contend erroneously denied their motions trial court 2.116(C)(8) disposition under MCR (0(10). plaintiffs nui- contend that Defendants her maintained because claims cannot be sance *4 proximate injuries solely re- the direct and were parties. intervening of other criminal acts sult of Defendants alleges plaintiff merely argue that guise negligence of nuisance claim under the they judgment as a entitled to were conclude is based law. Defendants’ conclusion matter of 186 Mich Opinion of the Court Supreme holding our Court’s a merchant has duty, care, no protect exercise of reasonable
its customers from the criminal acts of
parties merely
third
their
lo-
because
business is
high-crime
Cunning-
cated
area. Williams v
Drug Stores, Inc,
ham
495;
429 Mich
418 NW2d
(1988).
Activity
See also Harkins v Northwest
(1990),
Center, Inc,
434 Mich
Papadimas Mykonos Lounge,
176 Mich
(1989),
40;
A motion for under MCR 2.116(C)(8), for failure to state a claim on which granted, legal only relief can be tests suffi- ciency pleadings. of the claim as stated motion should be denied unless the claim is so clearly unenforceable as a matter of law that no development possible justify factual ery. could recov- Systems, Inc, Mills v White Castle App 202, 205; 421 NW2d correctly Supreme note, As defendants our duty Court has stated that of reasonable care by occupiers owed inviteеs does not owners and of land to their
extend conditions from which anticipated an unreasonable risk cannot be or to dangers apparent so obvious and the invitee expected be to discover them himself. Wil- supra, Accordingly, duty liams, a merchant’s providing of reasonable care does not include guards security armed, visible to deter criminal parties. Id., acts Moreover, third 500-504. anticipate duty landowner no has the hazards arising from a defective condition on its fence, such as a criminal hole that could facilitate parties. supra. Harkins, acts third holdings Nevertheless, we do not read these to bar claims of nuisance under facts such as those present perceive case. We a valid distinction be- *5 163 Opinion of the Court protect limiting duty to his landowner’s a tween imposing third-party crime and lia- invitees creating allowing bility or lаndowner on a patterns activity continuing premises on his criminal endanger invitees. his which progeny focus whether on Williams relationship and an between a landowner-invitor part duty gives of the to a rise invitee invitor for By contrast, invitee. benefit liability theory, on is based a nuisance under dangerous, offensive, condition of the hazardous or characteristics or on activities similar land which are conducted the land. Stevens v Drе- on App 273, 277; 401 kich, 443 NW2d (1989). the nuisance A defendant held liable for possession Id., the land. or control of must have plaintiffs is that nuisance claims The essence defendants, or who owned controlled intentionally negligently created or dangerous phys- of certain or allowed existence protracted criminal activities conditions and ical on their to constitute which combined public public A is an unreason- nuisance nuisance. right to with a common interference able p general public. Torts, 2d, § 821B, 4 Restatement App 194, 199; 371 Detroit, 87; Sanford v Mich term "unreasonable inter- The NW2d ference” includes: (1) significantly conduct peace, public safety, health, com- interferes with (2) prescribed convenience; is fort, or conduct that (3) continuing nature that law; conduct of a permanent long-lasting produces effect, and, know, to knows or has reason has the actor as significant public rights. Id., 199-200. effect possessor upon the third of land activity person that causes a conducts (1) liability subject if: he or has reason knows is 186 Opinion of the Court being activity know conducted and it that causing causes or involves an unreasonable risk of (2) nuisance, he consents activity or fails to exercise reasonable care to prevent Torts, 2d, the nuisance. 4 Restatement p § 838, 157. *6 per occupation, act,
A nuisance
se is an
or
structure which is a
at
nuisance
all
times and
any
Eyde
Development
under
circumstances.
Bros
Co
Comm’rs,
v
Bd
Roscommon Co
of Rd
161 Mich
App 654, 669;
Moreover, evi- after record, the trial we conclude that on the dence correctly motions for denied defendants’ court also summary 2.116(C)(10), disposition under MCR be- genuine sufficiently plaintiff raised is- had cause testimony by Deposition of material fact. sues employee Americar and affidavit of defendant security guard employed at defendant Re- of a prevailing gency conditions on the Inn detailed the shootings, cars, and calls at Stolеn issue. daily police Prosti- almost occurrences. to the were daily hotel on a rooms in the tutes maintained trafficking problem Drug a constant basis. drug trafficking Young Boys, Inc., a notorious with gang, renting from which entire floors of the hotel enterings, Breakings operations. to run their robberies, assaults, car thefts were armed premises. frequent A fire bomb- occurrences *7 ing an floor of the hotel. out” entire once "took agents employees were Defendants and their occurrences. aware of these expert presented report by a Plaintiff also frequent opined that, of the on the basis who premises physi- and the occurrence of crime privacy a such as condition of the cal premises parking lot, was a the the fence around magnet,” place is, crimes a where "crime that likely in the sur- occur than even morе to were high-crime physical rounding The condition area. conveyed message "any- premises that of the propri- thing goes” no be that there would etary intervention.
According lease, of terms to the space lobby controlled office Americar hotel and was portions lot. repair. good premises obligated keep in to 158 Mich of Court finding genuine Courts are liberal in issue of St material fact. Paul Fire & Marine Ins Cо v App 719, Quintana, (1988). Summary disposition proper only is when impossible court it is satisfied that is supported claim asserted to be at trial. Peterfish v Frantz, 48-49; NW2d 25 (1988). Giving the of benefit reasonable doubt plaintiff, inference to it is reasonable infer defendants at least tolerated conditions amounting to and at a nuisance worst or condoned imagina created them. One not need stretch the tion far to infer that defendants Inn and portion Americar derived a substantial of their illegal on-premises income from the activities. One they infer that knew or should have known physical of condition and- high degree on-premises crime created an atmo sphere posed significant criminality risk public safety substantially and was certain types activity result such as that which plaintiff’s injury. Contrary caused to defendants’ they regularly contentions, evidence that called police conclusively for assistance does not show they steps took reasonable to abate nui only question regarding It sance. creates a of fact defendants’ intent and exercise of due care. per proved by existence a nuisance se is Eyde, supra, evidence of the act which it. created 669. The existence of a fact is a question for the trier of fact. Id. nui- Whether a negligent sance faсt intentional is also a question plaintiff pre- of fact. We conclude that documentary sented sufficient evidence to raise *8 question concerning of fact whether defendants per created and maintained a nuisance se fact on their and that the trial court the of Court properly for denied defendants’ motions disposition. trial also contends the
Defendant Americar erroneously of material determinations court made granted summary disposition in favor it fact when cross-plaintiff Regency defendant, on of express indemnity provision contained basis disagree. parties’ agreement. lease We operat- August 9, Patel, then On ing "Quality Detroit,” Inn of the name under space agreement to into an lease entered Corpora- premises to hotel defendant Consolidex doing tion, The as defendant Americar. business provision by lease, Americar, contained drafted agreed "indemnify and hold which Americar any liability damages Quality from harmless prem- any person property in, on or said about any also cause whatsoever.” lease ises provided expiration that a Americar after the holdover term constitute a lease would tenancy in the of a writ- month-to-month absence agreement contrary. The effective term ten August thrоugh July 1, 1984, of the was from lease 31, 1985. expired, did, the term defendant Americar
When fact, Therefore, as a holdover tenant. continue plaintiff’s injury, Americar was at month-to-month tenant. time ques- Defendant Americar now contends liability concerning existed under tions the ment Inn, fact agree- agreement original lease because the Quality Inn than with rather longer were no the terms of lease because during tenancy, and month-to-month in effect provision scope indemnity did because lot. We occurrences not agree include contentions the trial court that these with are without merit. *9 App
168
186
158
Mich
Opinion op the Court
correctly
First, the trial court
found that
there
question concerning
identity
was no
the
person,
Patel,
indemnitee. The same
signed
original
Quality
lease,
Inn,
the
on behalf of
acting
lease,
and a later
Regency
on behalf of defendant
Seсond,
Inn.
when a tenant under a valid
years
implies
over,
lease for
holds
the law
a con-
tenancy
tract to renew the
on the same terms for
year.
Whitehurst,
477,
another
Kokalis v
334 Mich
(1952);
480;
Mich
Moran,
in, on, or around the Although indemnity cause whatsoever. contracts strictly against they indemnitee, are construed against are also construed the drafter. Pritts v J I Co, Case (1981). Defendant Americar drafted the lease and
indemnity agreement.
plain
unambiguous
language
particular
agreement
indemnity
of this
only
applicable
so broad.it can
be construed as
plaintiffs
Hyster Co,
claim. Calladine v
155 Mich
plain
175, 182;
T.M. concurred. dissenting (concurring part Danhof, C.J. agree part). majority’s I conclu- While with regarding by Amer- sion icar, indemnification agree
I cannot
with its conclusion
186 Danhop, C.J.
properly
motion for
denied defendant’s
trial court
plaintiffs’s
disposition regarding
nui
mаy not be
claims. Because a nuisance
sance
predicated upon
act, Hobrla
an act or a failure to
Glass,
616, 630;
143 Mich
372 NW2d
v
(1985), plaintiffs
insufficient
claims are
claims
I
find that the nuisance
their face. would
negligence
simply
as an
restated
are
claims
negligence
fail,
And,
would
other tort.
a claim
given
Supreme
ruling
defendants
our
Court’s
protect plaintiff
duty
have the
did not
criminal assaults
parties.
v Cun
third
Williams
ningham Drug
Inc,
495, 499; 418
Stores,
429 Mich
(1988).
activity, by
Moreover,
criminal
NW2d
normally
nature,
is
unforesee
virtue of its deviant
applied
higher
duty
able,
no
standard of
"high
than to a
a business
crime” area
Papadimas Mykonos
in other areas.
business
(1989),
Lounge,
App 40;
lv
den
Regardless, plaintiffs cannot lie. nuisance claim tendency It the natural cannot be said danger defendants’ conduct was to create *11 plain- injury upon person property. By inflict facts, statement of defendants neither tiffs own permitted acquiesced illegal use of their nor premises by persons. Accordingly, I third would grant judgment of the trial court and reverse disposition. defendants’