Green v. SHELL OIL COMPANY

450 N.W.2d 50, 181 Mich. App. 439
CourtMichigan Court of Appeals
DecidedDecember 18, 1989
DocketDocket 100880
StatusPublished
Cited by11 cases

This text of 450 N.W.2d 50 (Green v. SHELL OIL COMPANY) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Green v. SHELL OIL COMPANY, 450 N.W.2d 50, 181 Mich. App. 439 (Mich. Ct. App. 1989).

Opinions

J. W. Fitzgerald, J.

Defendants appeal by leave granted from an order of the Oakland Circuit Court reversing a grant of summary disposition in their favor by the district court. We affirm in part, reverse in part and remand.

At approximately 6:00 p.m. on December 21, 1981, plaintiff drove into a Shell service station owned and operated by defendant Lanford and leased from defendant Shell Oil Company. Plaintiff filled his gas tank and, as he walked from the self-service island to the station’s office to pay for the gasoline, was struck by a slow-moving vehicle plaintiff alleges was driven by Monica Gottwald. Plaintiff slapped the hood of the vehicle with his hand and yelled for Gottwald to stop and to be more careful. Immediately thereafter, Leslie Salgado, an occupant of the Gottwald vehicle and employee of the station, exited from the vehicle and began striking plaintiff. An unidentified station attendant joined Salgado in his attack on plaintiff.

On January 2, 1982, plaintiff filed a complaint in Oakland Circuit Court against defendants and Salgado, as well as others no longer parties to the instant action, alleging assault and battery by Salgado and an unidentified station attendant, vicarious liability of defendants for the alleged assault and battery, and negligence by defendants in failing to provide a safe place for doing business. The case was remanded to district court after mediation._

[442]*442Defendants moved for and were granted summary disposition. The district court held that defendants could not be held liable for an intentional tort committed by the service station attendant. The court also held that the attendant owed no duty to stop an assault by a third party. Plaintiffs motion to amend his complaint was denied.

Plaintiff appealed both orders to circuit court. The circuit court reversed the district court’s grant of summary disposition, finding that the service station attendant owed a duty to take some sort of action to mitigate or alleviate injury to plaintiff and that the attendant also owed a duty to refrain from increasing plaintiffs injuries through his participation in the battery and that such a breach of this duty could be attributable to the employer under a theory of vicarious liability. It also reversed the district court’s denial of plaintiffs motion to amend.

Thereafter plaintiff amended his complaint to allege liability arising out of the attendant’s failure to intervene on plaintiffs behalf.

Defendants argue that the station attendant owed no duty to intervene in the assault on plaintiff’s behalf and, therefore, absent such a duty, they cannot be held liable for the injuries sustained by plaintiff. In support of their argument defendants rely on Williams v Cunningham Drug Stores, Inc, 429 Mich 495; 418 NW2d 381 (1988). We believe that their reliance is misplaced.

In Williams, supra at 497, the plaintiff shopper was shot when he inadvertently ran out of the defendant’s drug store on the heels of a fleeing robber. The plaintiff alleged in his complaint that the defendant had breached its duty to exercise reasonable care for its patrons’ safety by failing to provide armed, visible security guards and failing to intercede after having noticed the armed rob[443]*443bery in progress. Williams, supra. Our Supreme Court declined to extend a merchant’s duty that far:

We conclude as a matter of law that the duty of reasonable care a merchant owes his invitees does not extend to providing armed, visible security guards to protect customers from the criminal acts of third parties. The merchant is not an insurer of the safety of his invitees, and for reasons of public policy he does not have the responsibility for providing police protection on his premises. [Williams, supra at 504.]

In reaching that conclusion, the Court considered the degree of control in a merchant’s relationship with his invitees, the nature of the harm involved, and the public interest in imposing such a duty. Williams, supra at 501.

We do not believe that the instant case is controlled by Williams. Plaintiffs complaint does not allege a duty to provide armed, visible security guards, or a duty essentially to provide police protection. Instead, plaintiff alleges that defendants breached the well-recognized duty to provide a reasonably safe premises that arises from the "special relationship” that exists between the business invitor and his invitee. Nor do we believe the Williams rationale to be applicable in the instant case. The attack on plaintiff was not perpetrated by an unknown "third party” as in Williams, but by defendant Lanford’s own employees. Williams, supra at 502, held that a merchant cannot shoulder a duty to control "the incidents of crime in the community.” We believe, however, that defendant Lanford’s degree of control clearly encompasses the situation presented here.

In Mills v White Castle Systems, Inc, 167 Mich App 202, 203-204; 421 NW2d 631 (1988), lv den 431 [444]*444Mich 880 (1988), the plaintiffs and their two companions parked their vehicle in the parking lot of defendant’s restaurant. As they crossed the lot and entered defendant’s restaurant, they observed a group of disorderly persons loitering in the parking lot, drinking alcohol and speaking obscenities. The plaintiffs and their friends left the restaurant forty minutes later and were accosted by the unruly group. One of the plaintiffs’ companions reentered defendant’s restaurant and asked the manager to summon the police. The manager refused. He also refused the companion’s request to use the telephone to summon the police. Instead, the companion was told to telephone the police from a public telephone located across the street from the restaurant. Id. at 204. A panel of this Court held that the plaintiffs’ complaint had stated a cause of action because the defendant had or should have had knowledge of the unruly patrons’ presence on its premises and was in the position to control the unruly patrons’ actions or to eject them from its premises. Id. at 208.

We believe that under Mills defendant Lanford’s employees were in a position to control the unruly situation, to eject the instigator from the premises and to refrain from increasing plaintiffs injuries. On these facts, a jury could find that defendant Lanford failed to exercise reasonable care for his invitees’ protection. See Dumka v Quaderer, 151 Mich App 68, 73; 390 NW2d 200 (1986), lv den 426 Mich 861 (1986).

The question now becomes whether Shell Oil had apparent authority over the service station so as to make it liable for the assault on plaintiff. In Johnston v American Oil Co, 51 Mich App 646, 647-648; 215 NW2d 719 (1974), the plaintiffs decedent was shot during an altercation with the proprietor of a Standard service station, who re[445]*445fused to serve him and his companions. The trial court granted defendant American Oil Company’s summary judgment motion based on the proprietor’s status as an independent contractor. Id. at 648. The plaintiff had pointed to the service station’s use of American Oil’s trademark and its sale of supplies and products obtained from American Oil. Id. at 649. On appeal, the panel concluded:

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Weinstein v. Siemens
673 F. Supp. 2d 533 (E.D. Michigan, 2009)
Davey Ex Rel. Johnston v. Health
522 F. Supp. 2d 838 (E.D. Michigan, 2007)
McMullen v. Duddles
405 F. Supp. 2d 826 (W.D. Michigan, 2005)
Allison v. Gay
50 F. App'x 719 (Sixth Circuit, 2002)
Mason v. Royal Dequindre, Inc.
566 N.W.2d 199 (Michigan Supreme Court, 1997)
Weatherholt v. Meijer Inc.
922 F. Supp. 1227 (E.D. Michigan, 1996)
Bahrle v. Exxon Corp.
652 A.2d 178 (New Jersey Superior Court App Division, 1995)
Goldsworthy v. McCausland
466 N.W.2d 286 (Michigan Court of Appeals, 1991)
Green v. SHELL OIL COMPANY
450 N.W.2d 50 (Michigan Court of Appeals, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
450 N.W.2d 50, 181 Mich. App. 439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-shell-oil-company-michctapp-1989.