Bailey v. Schaaf

• Decision Date: 18 August 2011
• Docket Number: Docket No. 295801.
• Citation: 810 N.W.2d 641,293 Mich.App. 611
• Parties: BAILEY v. SCHAAF.
• Court: Court of Appeal of Michigan — District of US

293 Mich.App. 611

810 N.W.2d 641

BAILEY

v.SCHAAF.

Docket No. 295801.

Court of Appeals of Michigan.

Submitted April 13, 2011, at Detroit.Decided Aug. 18, 2011, at 9:05 a.m.

Donald M. Fulkerson, Westland, and Robinson & Associates, P.C. (by David A. Robinson and Racine Michelle Miller), Southfield, for Devon S. Bailey.

Pedersen, Keenan, King, Wachsberg & Andrzejak, P.C. (by Thomas E. Keenan), Commerce Township, for Evergreen Regency Townhomes, Ltd, T.J. Realty, Inc. doing business as Hi–Tech Protection, Radney Management & Investments, Timothy Johnson, William B. Baker, and Christopher L. Campbell.

Before: BECKERING, P.J., and WHITBECK and M.J. KELLY, JJ.

PER CURIAM.

In this suit seeking damages for injuries sustained in a shooting, plaintiff, Devon Scott Bailey, appeals as of right the trial court's final order entering a default judgment against defendant Steven Gerome Schaaf. We affirm in part and reverse in part the trial court's order and remand for further proceedings.

I. OVERVIEW

There are three separate issues on appeal. The first is whether the trial court abused its discretion when it allowed defendant Evergreen Regency Townhomes, Ltd., the owner of the premises in question, and defendant Radney Management & Investments, the manager of the premises, to amend their responses to Bailey's requests for admissions. We conclude that the trial court's decision was not an abuse of discretion.

The second issue is whether the trial court abused its discretion when it dismissed Bailey's claim that he was a third-party beneficiary of a contract between Evergreen and defendant T.J. Realty, Inc., doing business as Hi–Tech Protection, Inc., the company that provided “courtesy patrolling services” to the premises. We conclude that the trial court did not abuse its discretion because the evidence does not establish a question of fact regarding whether there was an agreement in effect on August 4, 2006 (the date on which Bailey was shot on the Evergreen premises), that imposed any obligation on Hi–Tech with respect to guests of Evergreen's tenants.

The third issue concerns the extent to which a premises possessor has a duty to respond to criminal acts. Relying on MacDonald v. PKT, Inc.,¹ we conclude that a premises possessor has a duty to take reasonable measures in response to an ongoing situation that is occurring on the premises, which means expediting the involvement of, or reasonably attempting to notify, the police. Our basic premise is that public safety is the business of the government, ² and we emphasize that under the circumstances at issue, the only duty the owners and managers of apartment complexes have is to summon the police when, either directly or through their agents, they observe criminal acts in progress that pose a risk of imminent harm to identifiable invitees, whether tenants or guests, who are lawfully on their premises.

II. BASIC FACTS

Evergreen owns the apartment complex where the shooting at issue occurred. In February 2003, Radney entered into a written agreement with Hi–Tech on behalf of Evergreen (the 2003 Contract). In the 2003 Contract, Hi–Tech agreed to provide Evergreen with “courtesy patrolling services.” The 2003 Contract provided that it would “run for an initial period of one year from the date of this contract.” Defendant, Timothy Johnson, the owner of Hi–Tech, signed on his company's behalf, John Barineau III signed on behalf of Evergreen and Radney, and Barbara Warren signed as the district supervisor for Radney.

In 2006, Johnson began to negotiate a new contract for security services with Mark Barineau, who was the vice president of Evergreen's general partner, Barineau GP, Inc. On August 21, 2006, and August 22, 2006, respectively, Barineau and Johnson signed a new agreement for security services with an effective date of August 28, 2006 (the 2006 Contract).

On August 4, 2006, before the date the 2006 contract was signed Bailey went to a gathering at a friend's apartment in a complex owned by Evergreen. Defendants William Baker and Christopher Campbell were the Hi–Tech security guards on duty that day. Evergreen resident Laura Green went to Baker and Campbell and informed them that there was a man on the premises with a gun. She told them that he was waving the gun and threatening to shoot the guests and asserted later that she pointed to the area of the gathering and identified the man with the gun. Despite Green's warning Baker and Campbell chose instead to drive an intoxicated resident back to his apartment. However, they stated that they looked for a person fitting the description given by Green. Approximately 10 or 15 minutes after they dropped off the intoxicated resident, Campbell and Baker heard two gunshots. They then drove to the gathering, where they observed a man, later identified as Bailey, lying face down with two gunshot wounds in his upper back. Bailey suffered severe injuries, including a spinal cord injury, a pulmonary contusion, and paraplegia.

Bailey sued Schaaf (the shooter), Hi–Tech, Johnson, and two unknown security guards in November 2007. Bailey alleged that defendants were liable for the shooting under theories of negligence, premises liability, and vicarious liability. Bailey later amended his complaint to specifically identify Campbell and Baker as the guards and state negligence claims against Evergreen and Radney. Bailey also added a third-party beneficiary contract claim against Hi–Tech, Radney, and Evergreen.

In February 2009, defendants ³ moved for partial summary disposition under MCR 2.116(C)(8). They argued that, with respect to the negligence claims, Bailey had failed to state a claim upon which relief could be granted because defendants did not owe him the legal duties identified in the complaint. Defendants argued that Campbell, Baker, and Johnson owed no legal duty to aid or protect Bailey; Evergreen owed no duty to provide security guards and did not voluntarily assume any duties to Bailey by hiring security guards; and Hi–Tech and Radney had no legal relationship to Bailey on which to premise a duty and did not have a derivative duty through Evergreen because Evergreen had no duty to a guest on its premises.

In March 2009, Bailey moved for partial summary disposition under MCR 2.116(C)(10). He asked the trial court to determine, as a matter of law, that Evergreen, Radney, and Hi–Tech owed him a duty on August 4, 2006. Bailey acknowledged that, under the 2003 Contract, it was clear that Hi–Tech had no duty to a tenant's guests. However, he argued that in July 2006, “there was a clear shift in position as to a specific duty or responsibility owed to the guest of a tenant.” Bailey presented evidence that on July 26, 2006, Barineau sent a final draft contract, to be effective on July 28, 2006, that indicated the parties' intent to implement an “enhanced property protection plan.” Barineau also included a signed authorization for Hi–Tech to increase its patrol hours. Bailey claimed that by virtue of these modifications, which were later incorporated into the 2006 Contract, Evergreen, Radney, and Hi–Tech voluntarily assumed duties to guests. Bailey also responded to defendants' motion under MCR 2.116(C)(8) by arguing that a landowner has a duty of reasonable care to protect identifiable invitees from the foreseeable criminal acts of third parties; the duty is triggered by specific acts occurring on the premises that pose a risk of imminent foreseeable harm to an identifiable invitee.

Following arguments on the motions in March 2009, the trial court dismissed the individual defendants after Bailey essentially declined to argue that there was any basis for holding them individually liable. The trial court also concluded that a landlord is under no duty to provide security guards. It further reasoned that if a landlord provides security guards who handle an emergent situation deficiently, liability does not arise from their actions because the voluntary provision of security does not create a greater responsibility on the part of the landlord. Thus, the trial court granted defendants' motion under MCR 2.116(C)(8). Without hearing arguments on the issue, the trial court also concluded that there was no contract in existence at the time of the shooting that extended Hi–Tech's responsibility to guests because only an unsigned draft existed at the relevant time. For these reasons, the trial court granted defendants' countermotion for summary disposition under MCR 2.116(C)(10) and (I)(2) and denied Bailey's motion.

In May 2009, the trial court granted summary disposition in favor of defendants and ordered the dismissal of Bailey's negligence claims—counts 1 to 8—under MCR 2.116(C)(8). The trial court also denied Bailey's motion for partial summary disposition and granted defendants' motion with respect to count 9, Bailey's final claim, which involved a claim for breach of contract. The trial court noted that the order dismissed the case with respect to all defendants except Schaaf, to whom the order did not apply.

Bailey moved for reconsideration, arguing that the trial court had erred because defendants owed him a duty as a matter of law. He also argued that summary disposition on his contract claim was improper because defendants' “counter-motion,” included with their response to Bailey's, was really a new motion that was not properly filed as such. Bailey asked the trial court to order defendants to refile their motion. The trial court denied Bailey's motion for reconsideration, but vacated the portion of its May 2009 order that dismissed Bailey's contract claim and ordered defendants to file a motion for summary disposition of that claim. Over defendants' objection, the trial court also subsequently reopened discovery to permit Bailey to depose Barineau.

In November 2009, defendants moved for summary disposition of Bailey's contract claim under MCR 2.116(C)(10). They argued that Bailey was unable to demonstrate that...