Blake v. Consolidated Rail Corp.

• Decision Date: 15 December 1983
• Docket Number: Docket No. 64948
• Citation: 342 N.W.2d 599,129 Mich.App. 535
• Parties: Joan BLAKE, administratrix of the estate and personal representative of Robert Blake, Deceased; Virginia Burton, administratrix of the estate and personal representative of Charles Burton, Deceased; Plaintiffs-Appellants, v. CONSOLIDATED RAIL CORPORATION, a foreign corporation; and National Rail Passenger Corporation, a federal corporation created by an act of Congress, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 599

342 N.W.2d 599

129 Mich.App. 535

Joan BLAKE, administratrix of the estate and personal representative of Robert Blake, Deceased; Virginia Burton administratrix of the estate and personal representative of Charles Burton, Deceased; Plaintiffs-Appellants, v. CONSOLIDATED RAIL CORPORATION, a foreign corporation; and National Rail Passenger Corporation, a federal corporation created by an act of Congress, Defendants-Appellees.

Docket No. 64948.

Court of Appeals of Michigan.

Submitted April 6, 1983.

Decided Oct. 10, 1983.

Released for Publication Dec. 15, 1983.

Zabner & Associates, P.C. by Jeffrey M. Zabner, Southfield, for plaintiffs-appellants.

Frasko, Hackett & Durkin by T. Patrick Durkin, Joseph J. McDonnell and William J. Richards, Detroit, for defendants-appellees.

Before HOLBROOK, P.J., and HOOD and GREEN ^*, JJ.

HOOD, Judge.

Plaintiffs appeal as of right from the trial court's May 24, 1982, orders granting defendants' motion for summary judgment. GCR 1963, 117.2(1).

In their first amended complaint, filed October 13, 1981, plaintiffs alleged that Robert Blake and Charles Burton, employees of defendant Consolidated Rail Corporation (Conrail), were shot and killed by Rudy Bladel ¹ while working on December 31, 1978, at defendant National Rail Passenger Corporation's (NRPC) Jackson, Michigan, depot. The murders took place in an area of the depot restricted to employees and authorized personnel.

Plaintiffs' first cause of action was an allegation of negligence brought under the Federal Employers' Liability Act (FELA), 45 U.S.C. 51 et seq., against defendant Conrail. Plaintiffs alleged that Conrail owed decedents the duty to provide them with a safe place to work and breached that duty by, among other things, (1) failing to protect its employees from assaults by others, (2) failing to properly secure the restricted area in which plaintiffs' decedents were shot, (3) failing to hire sufficient security personnel to protect employees such as Blake and Burton against known assailants such as Bladel, and (4) failing to warn employees of unsafe and unguarded conditions at the Jackson depot.

Plaintiffs' second negligence count was brought under the Michigan wrongful death act, M.C.L. Sec. 600.2922; M.S.A. Sec. 27A.2922, against defendant as NRPC owner or controller of the Jackson depot. In that count, plaintiffs alleged that the restricted area in which Blake and Burton were shot was defective and presented an unreasonable risk of harm to decedents. Plaintiffs alleged that NRPChad a duty to provide security to Blake and Burton, including a duty to protect them against criminal attacks by known assailants such as Bladel. Plaintiffs said NRPC breached that duty by, among other things, (1) failing to provide adequate security at the Jackson depot, (2) failing to warn both Conrail and plaintiffs' decedents of the lack of security and risks of harm from known assailants such as Bladel, and (3) negligently entrusting security functions to Conrail to protect Blake and Burton from such known and foreseeable risks.

Following extensive discovery by plaintiffs, by which plaintiffs acquired police documents and defendants' internal security documents, defendants moved in limine to exclude all evidence at trial of any alleged activities of Rudy Bladel, criminal or otherwise, that occurred or may have occurred prior to December 31, 1978, outside the City of Jackson. This motion did not specify particular documents or witnesses but referred generally to any written documents or testimony that plaintiffs might present regarding prior crimes or suspected assaults committed by Bladel against Conrail or Conrail's employees.

At the hearing on the motion in limine, plaintiffs' counsel argued that the evidence that defendants wished excluded went to the core of plaintiffs' theory that defendants knew of Rudy Bladel's violent propensities and vendetta against Conrail's Michigan branch employees. Proof of this knowledge was necessary to show that Bladel's assault against Blake and Burton was foreseeable by defendants.

Included in the evidence plaintiffs intended to present were documents and testimony regarding Bladel's 1971 conviction for assault of a Michigan branch Conrail employee in Indiana and a federal weapons possession conviction in 1978, stemming from Bladel's purchase of a gun in Elkhart, Indiana. Besides these actual criminal convictions plaintiffs intended to introduce at trial evidence showing that defendants knew that Bladel was strongly suspected of the 1963, 1968, and 1976 murders of other Michigan branch Conrail employees in Hammond and Elkhart, Indiana. Plaintiffs also intended to present evidence that defendants had in their possession, or knew of, a threatening letter written by Bladel in 1977 to a Niles, Michigan, Conrail employee, outlining his vendetta against Michigan branch employees. Lastly, plaintiffs intended to introduce documents and testimony regarding defendants' knowledge of Bladel's trespasses on railroad property in Elkhart, Indiana, and Niles and Porter, Michigan.

On February 18, 1982, the trial court filed its amended opinion granting defendants' motion in limine. In that opinion, the trial court stated that none of the evidentiary material outlined above involved events which occurred closer geographically than approximately 100 miles west of Jackson. The court said that:

"No case has been cited which would place upon an employer-defendant a duty to foresee danger to its employees from third persons, including ex-employees, at a location so remote from the site of the nearest previous incident indicating the possibility of danger to employees."

While the trial court noted that FELA case law recognized an employer's duty to warn employees about dangerous conditions or areas of employment, the court said defendants did not have a duty to warn or notify employees of a potentially dangerous person.

In the same opinion granting defendants' motion in limine, the trial court sua sponte excluded the testimony of plaintiffs' expert witness, Jan Reber. According to Mr. Reber's affidavit, he was an expert and consultant in the area of security analysis for corporations engaged in industrial, transportation, and technological activities. He stated he had reviewed plaintiffs' discovery materials and, based upon the facts known to defendants, would express his opinion regarding the foreseeability of the Jackson murders and what reasonable security measures defendants could have taken to prevent those murders.

The trial court noted that Mr. Reber's conclusions would embrace ultimate issues to be decided by the jury, but such was permissible under MRE 704. However, the trial court excluded Mr. Reber's testimony on a finding that his opinion was not necessary because the jury could decide what a reasonably prudent railroad would, or should, have done in this case.

On the date trial was to commence, March 15, 1982, plaintiffs moved for a stay of proceedings so that they could pursue an interlocutory appeal of the court's grant of defendants' motion in limine or, in the alternative, for a dismissal without prejudice. The trial court denied both motions. Plaintiffs argued that exclusion of all evidence of Bladel's conduct prior to December 31, 1978, eviscerated their cause of action and was, in effect, a grant of summary judgment. Defendants agreed to move for summary judgment because plaintiffs conceded that they could not present a prima facie case without the excluded evidence. The trial court granted defendants' motion for summary judgment.

Plaintiffs argue in this appeal that the trial court erred by granting defendants' motion for summary judgment and abused its discretion by granting the defendants' motion in limine excluding all evidence of Bladel's suspected and criminal activities prior to December 31, 1978, the defendants' knowledge of such activities, and expert Jan Reber's testimony.

We agree that procedurally the trial court should properly have granted plaintiffs' motion to stay or dismiss. However, we also agree that the trial court, in essence, granted a summary judgment to defendants in its opinion and order granting defendants' motion in limine because it found, as a matter of law, that defendants had no duty to protect Blake and Burton from Rudy Bladel's criminal assault at the Jackson, Michigan, depot.

While we review an issue involving a trial court's exclusion of evidence under an abuse of discretion standard, Anderson v. Harry's Army Surplus, Inc., 117 Mich.App. 601, 608, 324 N.W.2d 96 (1982), where the issue involves a review of a trial court's order finding no legal duty, we generally review that finding as a grant of summary judgment for failure to state a claim. GCR 1963, 117.2(1). See Metheny v. Coy-Magee Custom Builder, Inc., 121 Mich.App. 580, 582, 329 N.W.2d 428 (1982).

A grant or denial of a motion for summary judgment for failure to state a claim, GCR 1963, 117.2(1), tests the legal basis of the complaint, not its factual support. The reviewing court must rely on the pleadings alone and assume that the factual allegations in the complaint are true, along with any inferences or conclusions which may be drawn from those facts. The motion should be granted only when the claim is so unenforceable as a matter of law that no factual development could possibly justify a right to recovery. Partrich v. Muscat, 84 Mich.App. 724, 729-730, 270 N.W.2d 506 (1978); Metheny v. Coy-Magee Custom Builder, Inc., supra.

We find that, although plaintiffs asserted that Conrail's legal duty was to provide Blake and Burton with a safe workplace, a reader could infer from the plaintiffs' complaint that plaintiffs' alleged that Conrail also had a duty to protect Blake and Burton from Bladel's criminal assault against them during the course of their employment. Such a claim is a cognizable FELA action. Therefore, the trial court erred as a matter of law by finding that d...