Stephen L Lowry v. Cellar Door Productions of Mich Inc

• Court: Michigan Supreme Court
• Decided: June 26, 2001
• Docket: 115322
• Status: Published

Opinion

Michigan Supreme Court Lansing, Michigan 48909 ____________________________________________________________________________________________ C hief Justice Justices Maura D. Cor rigan

Opinion Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman ____________________________________________________________________________________________________________________________

FILED JUNE 26, 2001

MOLLY MACDONALD,

Plaintiff-Appellee,

v No. 114039

PKT, INC, known as PINE KNOB MUSIC

THEATER, and ARENA ASSOCIATES,

jointly and severally,

Defendants-Appellants,

and

CAPITAL CITIES/ABC, INC,

Defendant.

STEPHEN L. LOWRY,

Plaintiff-Appellant,

v No. 115322

CELLAR DOOR PRODUCTIONS OF MICHIGAN,

INC, a Michigan corporation, and

ARENA ASSOCIATES INC, d/b/a PINE

KNOB MUSIC THEATER, jointly and

severally,

Defendants-Appellees.

BEFORE THE ENTIRE BENCH

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 foreseeable harm to identifiable invitees. We

hold today that the duty to respond is limited to reasonably

expediting the involvement of the police and that there is no

duty to otherwise anticipate and prevent the criminal acts of

third parties. Finally, consistent with Williams v Cunningham

Drug Stores, Inc, 429 Mich 495; 418 NW2d 381 (1988), and Scott

v Harper Recreation, Inc, 444 Mich 441; 506 NW2d 857 (1993),

we reaffirm that merchants are not required to provide

security personnel or otherwise resort to self help in order

to deter or quell such occurrences.

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 unless the sod

throwing stopped, the concert would not continue. The crowd

complied with the band’s request, and several individuals were

ejected from Pine Knob for throwing sod.

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 disposition,

arguing that it did not have a duty to protect plaintiff from

the criminal acts of third parties. Meanwhile, plaintiff

moved to amend her complaint to add certain theories including

design defect, nuisance, and third-party beneficiary claims

and to more specifically set forth her negligence claim.

The trial court granted summary disposition for Pine Knob

pursuant to MCR 2.116(C)(8) and (10), but the Court of Appeals

reversed.3 The Court of Appeals held that the trial court

erred in granting summary disposition in favor of Pine Knob

because there were fact questions for the jury regarding

whether the sod throwing incident created a foreseeable risk

of harm and whether the security measures taken by Pine Knob

1 The 1994 sod-throwing incident resulted in the lawsuit

at issue in Lowry.

2 Although not fully explained by the parties, apparently

Pine Knob Music Theater and Arena Associates is one entity.

Capital Cities/ABC, Inc., the owner of the radio station that

sponsored the concert, was dismissed as a party defendant from

the case early on and is not a party to this appeal.

3 233 Mich App 395; 593 NW2d 176 (1999).

4 were reasonable. The Court of Appeals reasoned that plaintiff

submitted evidence that there had been incidents of sod

throwing at previous concerts, that Pine Knob was aware of

those instances, and that it had formulated policies to deal

with sod throwing incidents before the concert. Regarding the

question whether security measures taken by Pine Knob were

reasonable, the Court of Appeals stated that plaintiff

presented evidence sufficient to survive summary disposition

by submitting the affidavit of an expert witness who stated

that Pine Knob was negligent by (1) failing to have adequately

trained security personnel properly positioned at the

concert,4 (2) failing to summon the police to eject or arrest

those throwing sod, (3) failing to have a clear, written

policy regarding the sod throwing, (4) allowing the concert to

continue after the first incident, and (5) serving alcohol.

Finally, the Court of Appeals held that the trial court

abused its discretion in denying plaintiff’s motion to amend

her complaint pursuant to MCR 2.116(I)(5). The Court of

Appeals stated that the proposed claims were legally

sufficient and were justified by the evidence. This Court

granted Pine Knob’s application for leave to appeal.5

B. LOWRY

In Lowry, plaintiff and a friend attended a Suicidal

Tendencies/Danzig/Metallica concert at Pine Knob on June 22,

4 Approximately forty security officers and eleven

officers from the Oakland County Sheriff’s Department were

working at the concert.

5 461 Mich 987 (2000).

5 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 Michigan, Inc., the

producer of the concert, alleging that defendants failed to

protect plaintiff from the foreseeable dangers of sod throwing

by patrons. Plaintiff also alleged that defendants violated

his rights under the Michigan Handicapper’s Civil Rights Act

(MHCRA), (now: Persons With Disabilities Civil Rights Act),

MCL 37.1101 et seq., by failing to adequately accommodate his

disability.

Defendants moved for summary disposition under MCR

2.116(C)(8) and (10), arguing that they owed no duty to

protect plaintiff from the criminal acts of third parties, and

that plaintiff’s handicap was fully accommodated. With regard

6 Approximately seventy crowd control personnel, as well

as officers from the Oakland County Sheriff’s Department, were

present at the concert.

to plaintiff’s premises liability claim, the trial court

granted summary disposition for defendants on the ground that

the sod throwing was unforeseeable and that defendants took

reasonable measures to protect their patrons. The trial court

also granted summary disposition for defendants on plaintiff’s

handicapper discrimination claim, holding that defendants

provided plaintiff with full and equal utilization of the

facilities.

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 Appeals

held that it owed no duty to protect plaintiff because it was

unforeseeable as a matter of law that the crowd would throw

sod at plaintiff during the concert. In that respect, the

Court of Appeals found that the instant case was factually

distinguishable from MacDonald because (1) unlike MacDonald,

in the instant case there was no evidence whatsoever that

defendants had formulated a specific policy to deal with sod

throwing incidents, (2) the sod throwing incident in this case

7 Issued June 8, 1999 (Docket No. 206875).

8 Plaintiff does not challenge this aspect of the Court of

Appeals decision. Accordingly, we deem plaintiff to have

abandoned his claims against Cellar Door.

occurred before the incident in MacDonald, and (3) in

MacDonald, the plaintiff was injured during the second

occurrence of sod throwing during the same concert, whereas in

this case, there were no incidents of sod throwing during the

prior evening’s performance that involved the same bands. The

Court of Appeals also held that Pine Knob fully accommodated

plaintiff’s disability.

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

III. STANDARD OF REVIEW

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 MCR 2.116(C)(8) tests the legal sufficiency

of the complaint and allows consideration of only the

9 461 Mich 987 (2000).

8 pleadings. Wade v Dep’t of Corrections, 439 Mich 158, 162;

483 NW2d 26 (1992). The motion should be granted only when

the claim is so clearly unenforceable as a matter of law that

no factual development could possibly justify a right of

recovery. Id. at 163.

A motion for summary disposition pursuant to MCR 2.116

(C)(10) tests the factual support of a claim. Smith v Globe

Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). The

motion should be granted if the evidence demonstrates that no

genuine issue of material fact exists, and that the moving

party is entitled to judgment as a matter of law. Id. at 454­ 455, quoting Quinto v Cross & Peters Co, 451 Mich 358, 362­ 363; 547 NW2d 314 (1996).

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

instant cases, we are called upon to further clarify the duty

that we articulated in Mason.

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 were waiting out in the parking

lot, yelling at the plaintiff and threatening to kill him.

There was evidence that the bouncers standing at the door

could undoubtedly hear the commotion. One of Lewis’ friends

eventually shot the plaintiff in the chest. Id. at 395-396.

We upheld a jury verdict in the plaintiff’s favor on the

ground that a reasonable jury could find that the harm to the

plaintiff was foreseeable. We also held that a reasonable

jury could find that the defendant did not take reasonable

steps to prevent the plaintiff’s injury. Id. at 404-405.

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 now disavow

that analysis as being flatly inconsistent with Williams and

Scott.

10 Mason cited § 344 of 2 Restatement of Torts, 2nd, and

comment f to § 344, which indicate that a merchant has a duty

to take precautions against the criminal conduct of third

persons that may be reasonably anticipated. We overrule that

portion of Mason as conflicting with Williams and Scott.

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); Buzckowski 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.

Having established that a merchant’s duty is to respond

reasonably to criminal acts occurring on the premises, the

next question is what is a reasonable response? Ordinarily,

this would be a question for the factfinder. However, in cases

in which overriding public policy concerns arise, this Court

may determine what constitutes reasonable care. See Williams,

supra at 501, citing Moning v Alfono, 400 Mich 425, 438; 254

NW2d 759 (1977). Because such overriding public policy

concerns exist in the instant cases, the question of

reasonable care is one that we will determine as a matter of

law. Williams, supra at 501. We now make clear that, as a

matter of law, fulfilling the duty to respond requires only

that a merchant make reasonable efforts to contact the police.

We believe this limitation is consistent with the public

policy concerns discussed in Williams.

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.

11 A merchant may voluntarily do more than reasonably

attempt to notify the police. However, we hold today, that a

merchant is under no legal obligation to do so.

12 In most instances, other than merely being the owner of

the business being victimized, the merchant and invitee will

be situated in roughly the same position in terms of their

vulnerability to the violent criminal predator.

In Scott, supra at 452, we expanded on this theme by

holding that, even where a merchant voluntarily takes safety

precautions in an effort to prevent criminal activity, "[s]uit

may not be maintained on the theory that the safety measures

are less effective than they could or should have been."

Consequently, in any case in which a factfinder, be it the

trial court or a jury, will be assessing the reasonableness of

the measures taken by a merchant in responding to an

occurrence on the premises, a plaintiff may not present

evidence concerning the presence or absence of security

personnel, or the failure to otherwise resort to self-help, as

a basis for establishing a breach of the merchant’s duty. A

jury thus must be specifically instructed in accordance with

the principles of Williams and Scott as we have outlined them

here.

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.

V. APPLICATION

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 MCR 2.116(C)(8) and (10).

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-party beneficiary

claims and to more specifically set forth her negligence

claim. We conclude that plaintiff’s amendment would have been

futile.

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 . . . .” Slip op, pp 4-5. We

disagree.

The principal difference between the dissent and the

majority lies in our respective attempts to reconcile our

several premises liability cases and the policies that

undergird them. The dissent seeks in effect to limit or

ignore the holdings of Williams and Scott. The majority

refuses to do so.

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 that section and comment of the restatement, the Mason

majority did not “recognize” the imposition of a duty on a

merchant to protect its invitees from criminal conduct of

third parties as being “contingent upon whether the character

of his business, or past experience . . . gives the merchant

knowledge or reason to know that those acts may occur again.”

Slip op, p 4. Other than in the text of the restatement, the

“character of the merchant’s business” is not even discussed

13 The dissent cannot seriously suggest that the mere

quotation of comment f of the Restatement in Mason constituted

an adoption of it. Comment f explicitly provided that a

premises owner’s duty encompasses the responsibility to

"provide a reasonably sufficient number of servants to afford

a reasonable protection" against the criminal acts of third

parties. This proposition was flatly rejected in both

Williams and Scott. See Williams at 502-503 and Scott, supra.

Nevertheless, “this Court is not, nor is any other court,

bound to follow any of the rules set out in the Restatement.”

Rowe v Montgomery Ward, 437 Mich 627, 652; 473 NW2d 268

(1991). “[T]he application of a common-law rule to a

particular set of facts does not turn on whether those facts

can be characterized in the language of the Restatement.”

Smith v Allendale Mutual Ins Co, 410 Mich 685, 712-13; 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.

in Mason. Nor did we “implicitly note” in Mason that a

careful consideration of the facts in each case, namely, the

nature of the harm, etc., is essential in determining whether

a § 344 analysis is justified. Thus, the dissent ingeniously

injects concepts into Mason that clearly were not adopted by

the Mason court.

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", slip op, p 8, 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

“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 unfortunate pervasiveness, a plausible

argument that the criminal being drawn to the business

enterprise at all makes it “related” in such a way as to

trigger liability.15 Surely after one crime has occurred on

the premises, or even in a similar business, with the criminal

14 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 slip op, pp 11-13.

15 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. Slip op, p 8.

21 having been arguably drawn to that business, the “relatedness”

test will be met. Indeed, probably even more attenuated

linkages (the crime rate in the area comes to mind) will

suffice, as the law develops, to establish “relatedness.”

This will all mean, and it was this the Williams and Scott

courts understood, that urban merchants will be exposed to

crippling tort liability.

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 cannot be gainsaid that businesses in

urban and high-crime areas do foresee that criminals may

attack their establishments—opportunistically or with

premeditation. Indeed, the fact that many businesses in our

16 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 Rev 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.

urban and high-crime areas erect barriers to protect their

employees is ample proof that they actually anticipate crime

occurring in their establishments. Plainly stated, their

precautions give proof that they understand that criminal acts

in their establishments are not “random” as the dissent would

understand it, but rather are foreseeable risks related to the

business.

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 resort to

self-help in order to deter or quell such occurrences.

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.

S T A T E O F M I C H I G A N

SUPREME COURT

PKT, INC, known as PINE KNOB MUSIC THEATER, and ARENA ASSOCIATES, jointly and severally,

CAPITAL CITIES/ABC, INC, Defendant. ________________________________ STEPHEN L. LOWRY, Plaintiff-Appellant,

v No. 115322 CELLAR DOOR PRODUCTIONS OF MICHIGAN, INC, a Michigan corporation, and ARENA ASSOCIATES INC, d/b/a PINE KNOB MUSIC THEATER, jointly and severally, Defendants-Appellees. ________________________________

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. Slip op at 2. 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 endangered by a third party’s conduct.

Generally, a person has no duty to protect another person

endangered by a third party’s conduct unless there is a

special relationship between those persons. The reason for

this exception to the general no-duty rule when a special

relationship is present is based on control. As we explained,

“In each situation one person entrusts himself to the control

and protection of another, with a consequent loss of control

to protect himself. The duty to protect is imposed upon the

person in control because he is best able to provide a place

of safety.” Mason at 398. Thus, while merchants are not

insurer’s of their invitees’ safety, we recognized that courts

will impose a duty on a merchant to protect its invitees, like

the duty imposed when a special relationship is present, when

they are “readily identifiable as [being] foreseeably

endangered.” Id. at 398, quoting Murdock v Higgins, 454 Mich

46, 58; 559 NW2d 639 (1997).

After exploring the basis for imposing a duty on a

merchant to protect its invitees, we explained that these same

principles are embodied in 2 Restatement Torts, 2d, § 344,

pp 224-225, and comment f to § 344, pp 225-226. The

Restatement further explains how control and foreseeability

govern a landowner’s liability to its invitees. Section 344

provides:

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 premised on tort principles that require

a look into the character of the merchant’s business and prior

similar occurrences to determine whether the harm is

foreseeable.

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. Slip op at 13, 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

that a merchant only has a duty to “respond reasonably to such

a situation.” Slip op at 12-13. Furthermore, the majority

concludes that the duty entails only making an effort to

contact the police because Williams prevents the imposition of

any further act. The majority fails to recognize, however,

that a new formulation of the Mason duty is not necessary in

light of Williams because we distinguished Williams when we

decided Mason.

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 explained

that, although no invitor is automatically liable for criminal

acts of third parties on the invitor’s property, an invitor

has a duty to act reasonably to protect invitees from

foreseeable hazards. Alexander at 879-880. Distinguishing

Williams on its facts, Justice Levin explained that the

merchant in Williams was not faced with a foreseeable

altercation because the merchant had no control over the

random, spontaneous nature of the harm. Thus, Williams

addressed “the random assault bearing no relation to the

merchant’s business, and did not address the merchant’s

liability for risks created by the merchant’s business.” Id.

at 882. Noting that this distinction is relevant, Justice

Levin stated that although we have held that “a merchant is

not ordinarily required to protect customers from the criminal

acts of third persons, . . . [i]f one assumes that a situation

created by the defendant will be classified as extraordinary,

the distinction then becomes relevant.” Id. at 881 (emphasis

added). Thus, if the merchant created the situation that led

to the harm, the situation can be treated as extraordinary and

a merchant can be liable for the criminal acts that harmed its

patrons, if the acts were foreseeable. Justice Levin noted

that the facts in Alexander created such an extraordinary

situation because the scuffle between the patrons waiting in

line “was foreseeable in light of the owner’s considerable

experience with crowd control in general, and handling and

organizing the pretheater crowd in particular.” Id.

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 the nature of the harm, the

foreseeability of the harm, and the control a merchant has

over the harm. We implicitly noted that a careful

consideration of the facts in each case is essential to

determine whether a § 344 analysis is justified. 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. Accordingly, we concluded that “merchants have a

invitees from the foreseeable criminal acts of third parties.”

Mason at 405. Our decision in Mason was therefore clearly

based on a careful consideration of the common-law tort

principles of control and foreseeability, as articulated in

§ 344, and how they coexist with the holding in Williams.

Thus, clarification of the Mason duty is not necessary, as

that decision clearly acknowledged how the control and

foreseeability origins of § 344 may apply to certain factual

scenarios without violating our holding in Williams.

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 principles have distinguishing

characteristics that allow them to exist without conflict in

three separate categories.

(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 believe, from what he has observed or from past

experience, that the conduct of others on the land will be

dangerous to other invitees, but not when the landowner cannot

anticipate the harm).

(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 cases under the hybrid category,

and thus justifies applying the control and foreseeability

origins of § 344.

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

1 The record indicates that some 100 sod-throwing patrons

were ejected from the premises, pursuant to Pine Knob’s

policy.

2 In Lowry, the sod throwing occurred once before at the

same festival-type music concert, and in MacDonald it occurred

twice in one night.

the premises and the nature of Pine Knob’s business, to watch

concerts at such a venue, I would find this an “extraordinary”

situation, unlike that in Williams. These factors justify

imposing a duty on Pine Knob. Pine Knob not only created the

risk of harm to its invitees, but it had reason to know that

such sod throwing may occur again, on the basis of its prior

experience with such activity. This act is therefore unlike

the random, spontaneous criminal act that occurred in

Williams, which had nothing to do with the nature of the store

owner’s business, and the concerns of applying the control and

foreseeability concepts do not arise. It thus becomes clear

that the majority’s overstated concern for subjecting

merchants in high crime areas to increased liability is

misplaced. Random crimes in the community are unique to the

community, not to the businesses present in that community.

Hence, the initial analysis, as proposed by Justice Levin and

further explained in § 344, focuses on whether the act that

injured the patron is unique to the merchant’s business, not

the location of the merchant’s business. If the act 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. Thus, retaining the control

and foreseeability origins of § 344 in this situation does not

vitiate the Williams holding, and Pine Knob should be held

liable if a jury finds that the sod throwing was a foreseeable

act and Pine Knob failed to take reasonable measures to

protect its invitees from such foreseeable harm.

IV

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

3 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.

business and the invitee’s purpose on the premises. Because

this was clearly not intended when we created the Mason duty,

I dissent.

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.