Aisner v. Lafayette Towers

• Decision Date: 15 December 1983
• Docket Number: Docket No. 66146
• Citation: 129 Mich.App. 642,341 N.W.2d 852
• Parties: Celina AISNER, Plaintiff-Appellant, v. LAFAYETTE TOWERS, a Limited Partnership and Daniel E. Levin and Robert E. Johnson, Jointly and Severally, Defendants-Appellees. 129 Mich.App. 642, 341 N.W.2d 852
• Court: Court of Appeal of Michigan — District of US

Page 852

341 N.W.2d 852

Celina AISNER, Plaintiff-Appellant, v. LAFAYETTE TOWERS, a Limited Partnership and Daniel E. Levin and Robert E. Johnson, Jointly and Severally Defendants-Appellees.

Docket No. 66146.

129 Mich.App. 642, 341 N.W.2d 852

Court of Appeals of Michigan.

Submitted June 15, 1983.

Decided Oct. 11, 1983.

Released for Publication Dec. 15, 1983.

[129 MICHAPP 644] Norman R. Robiner, Detroit, for plaintiff-appellant.

Holahan, Malloy, Maybaugh and Monnich by John R. Monnich, Troy, for defendants-appellees.

Before BRONSON, P.J., and T.M. BURNS and DEMING ^*, JJ.

PER CURIAM.

Plaintiff appeals as of right from the trial court's order granting summary judgment in favor of defendants pursuant to GCR 1963, 117.2(1) and (3).

Plaintiff was robbed and sexually assaulted in the parking lot of the Lafayette Towers apartment building on August 30, 1976, at approximately 9:30 p.m. At the time of the incident, plaintiff was on her way to visit a friend who was a tenant in the Lafayette Towers. Plaintiff commenced this negligence action alleging that defendants breached their duty to keep the premises, including the parking lot, in a reasonably safe condition and, specifically, that defendants were negligent in failing to provide sufficient lighting and security guards in the area of the parking lot. The complaint further alleged that defendants knew stringent security measures were required because (1) the apartment building was located in a high [129 MICHAPP 645] crime area, (2) two separate attacks on women had occurred in the immediate vicinity of the apartment building within the five days previous to the incident, and (3), prior to the incident, tenants of the Lafayette Towers had held meetings for the purpose of requesting better security measures in and around the building. The trial court granted summary judgment, finding, in effect, that defendants owed no duty because the Lafayette Towers was not a high crime area and, therefore, the risk to plaintiff was not foreseeable.

The Michigan Supreme Court has held that a landlord owes a duty to his tenants to protect them from unreasonable risks of harm resulting from the foreseeable criminal activities of third parties within the common areas of the landlord's premises. Johnston v. Harris, 387 Mich. 569, 198 N.W.2d 409 (1972); Samson v. Saginaw Professional Building, Inc., 393 Mich. 393, 224 N.W.2d 843 (1975). Stated otherwise, the landlord's duty to act arises where the risk of harm is foreseeable and the perceived risk is unreasonable. Ordinarily, the element of duty in a negligence action is one of law for the court to decide. However, where there are factual circumstances which give rise to a duty, the existence or nonexistence of those facts must be decided by a jury. Farwell v. Keaton, 396 Mich. 281, 286-287, 240 N.W.2d 217 (1976); Graham v. Ryerson, 96 Mich.App. 480, 488, 292 N.W.2d 704 (1980); Samson, supra, 393 Mich.App. at p. 409, 224 N.W.2d 843.

We now turn to the trial court's ruling in the instant case. As noted previously, the order of summary judgment was based on both GCR 1963, 117.2(1) and (3). In reviewing a grant of summary judgment under subrule (1), this Court assumes that the factual allegations in the plaintiff's complaint are true and determines whether [129 MICHAPP 646] the claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can permit recovery. Hill v. Houghton Twp., 109 Mich.App. 614, 616, 311 N.W.2d 429 (1981). In this case, plaintiff's complaint did allege the requisite elements of a negligence action. Summary judgment was improperly granted under subrule (1).

It appears that the trial court's ruling was based primarily on subrule (3). In ruling on a motion grounded upon GCR 1963, 117.2(3), the trial court must examine the pleadings, admissions, depositions, affidavits and other documentary evidence to determine whether a genuine...