Brown v. Brown

• Decision Date: 11 July 2007
• Docket Number: Docket No. 131358.
• Citation: 478 Mich. 545,739 N.W.2d 313
• Parties: Lisa BROWN Plaintiff-Appellee, v. Michael BROWN, Lumberman's Mutual Casualty Insurance Company, and Harlan Gardner, Defendants, and SAMUEL-WHITTAR STEEL, INC. Defendant-Appellant.
• Court: Michigan Supreme Court

739 N.W.2d 313

478 Mich. 545

Lisa BROWN Plaintiff-Appellee, v. Michael BROWN, Lumberman's Mutual Casualty Insurance Company, and Harlan Gardner, Defendants, and SAMUEL-WHITTAR STEEL, INC. Defendant-Appellant.

Docket No. 131358.

Supreme Court of Michigan.

July 11, 2007.

Weaver & Young, P.C. (by Gregory T. Young), Franklin, for the plaintiff.

Plunkett & Cooney, P.C. (by Christine D. Oldani and Thomas P. Vincent), Detroit, for Samuel Whittar Steel, Inc.

YOUNG, J.

Plaintiff Lisa Brown was a security guard who had been assigned by her employer, Burns International Security (Burns), to provide security for defendant Samuel-Whittar Steel, Inc.¹ Michael Brown (Brown), an employee of defendant and no relation to plaintiff, raped plaintiff at defendant's Detroit facility. Brown had no prior criminal record, no history of violent behavior, and certainly no history indicating that he harbored a propensity to commit rape. However, plaintiff alleges that Brown routinely made crude, sexually explicit comments to her when they interacted at defendant's facility. We are asked to consider whether defendant's knowledge of these comments created a basis for holding defendant, Brown's employer, liable for the rape committed by Brown.

We hold that where an employee has no prior criminal record or history of violent behavior indicating a propensity to rape, an employer is not liable solely on the basis of the employee's lewd comments for a rape perpetrated by that employee if those comments failed to convey an unmistakable, particularized threat of rape. The Court of Appeals reliance on this Court's decision in Hersh v. Kentfield Builders, Inc., 385 Mich. 410, 189 N.W.2d 286 (1971), was misplaced. Because Brown did not commit prior acts that would have put his employer on notice of Brown's propensity to commit rape and Brown's workplace speech was not predictive of this criminal act, defendant cannot be held liable for the rape.

We reverse the judgment of the Court of Appeals, reinstate the trial court's order granting summary disposition in favor of defendant, and remand this case to the trial court for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

Beginning in early 2000, plaintiff Lisa Brown worked for Burns as a security guard.² During this time, Burns assigned plaintiff to work the night shift at defendant's Detroit plant. Plaintiff's duties during the night shift included answering and transferring telephone calls, inspecting employees and truck drivers as they left the facility, and making nightly rounds through the plant.

Michael Brown worked for defendant as a foreman. The record does not disclose anything remarkable about Brown or his tenure with defendant. Brown did not have a criminal record until he pleaded no contest to attempted third-degree criminal sexual conduct arising out of his attack of plaintiff. At the time of the incident, Brown also worked the night shift.

Although it is unclear when the comments began, plaintiff alleges that Brown routinely made very crude, offensive sexual remarks to her.³ Plaintiff testified that on at least three occasions she complained about Brown's offensive comments to one of defendant's plant managers, Harlan Gardner.⁴ According to plaintiff, she last complained about Brown's language in August or September 2000. Plaintiff also testified that she told another Burns security guard, Kim Avalon, about Brown's lewd statements and that Avalon had been present during such an exchange between Brown and plaintiff. Plaintiff claims that the verbal harassment continued until the rape occurred in November 2000.⁵

On November 17, 2000, plaintiff was raped by Brown. As plaintiff made her nightly rounds through the plant, she noticed that a door leading into the administrative offices was ajar. As she walked toward that part of the office building, plaintiff met Brown. Brown followed her into the offices and helped her turn off the lights and close the doors of the individual offices. After the office area was secured, Brown forced plaintiff into a nearby women's restroom inside the building and raped her. Plaintiff immediately reported the incident to the police, who arrested Brown. Brown later pleaded no contest to a charge of attempted third-degree criminal sexual conduct. Understandably, plaintiff has testified that she suffered psychological trauma as a result of the rape and, as a result of this trauma, cannot return to work.

Plaintiff filed suit against defendant, Brown, and Harlan Gardner, seeking to recover damages caused by the rape, including damages for physical and psychological injury, lost wages, and medical expenses. She asserted two theories of liability against defendant: first, that defendant was vicariously liable for Brown's actions under the doctrine of respondeat superior; and, second, that because she had complained about Brown's lewd comments, defendant had notice of Brown's propensity to commit violent acts and therefore defendant was negligent in failing to take reasonable steps to prevent the rape.

Defendant moved for summary disposition, which the trial court denied. After the parties conducted further discovery, defendant renewed its motion for summary disposition. The trial court granted this motion, ruling that there was no genuine issue of material fact concerning whether defendant was liable for the unforeseen criminal acts of Brown.

Plaintiff appealed to the Court of Appeals, challenging the dismissal of her negligence claim.⁶ In a published opinion, deciding what it labeled a case of first impression, the panel reversed the trial court's order and held that plaintiff had presented a genuine issue of material fact that defendant knew or should have known of Brown's criminal sexual propensities and, therefore, was liable under a negligence theory.⁷ The panel cited in support this Court's decision in Hersh and its own decisions in Samson v. Saginaw Professional Bldg., Inc.,⁸ and Tyus v. Booth,⁹ although it conceded that all of those cases involved individuals who had had a history of engaging in prior violent acts. It also recognized that those cases did not consider "whether sexually aggressive and predatory words are sufficient to put an employer on notice of its employee's propensity for violence."¹⁰ Nevertheless, the Court of Appeals determined that "the language and the circumstances were sufficient to create a jury question regarding whether Whittar knew or should have known of Michael Brown's violent propensities."¹¹

Defendant sought leave to appeal in this Court. We heard oral argument on the application. In lieu of granting leave to appeal, pursuant to MCR 7.302(G)(1), we reverse the judgment of the Court of Appeals.

II. STANDARD OF REVIEW

This Court reviews de novo a decision to grant a motion for summary disposition.¹² We review a motion brought under MCR 2.116(C)(10) by considering the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to the nonmoving party.¹³ Summary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law.¹⁴ Whether one party owes a duty to another is a question of law reviewed de novo.¹⁵

III. ANALYSIS

a. Defendant owed no duty to plaintiff to prevent the rape because defendant had no notice of Brown's propensity to rape

Defendant argues that the Court of Appeals erred because Brown's words alone could not have put defendant on notice of Brown's propensity to rape. Therefore, defendant argues that it owed no duty to plaintiff in this case. We agree.

In order to make out a prima facie case of negligence, the plaintiff must prove the four elements of duty, breach of that duty, causation, and damages.¹⁶ "The threshold question in a negligence action is whether the defendant owed a duty to the plaintiff."¹⁷ "Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor's part for the benefit of the injured person."¹⁸ This Court has elsewhere defined "duty" as

a "`question of whether the defendant is under any obligation for the benefit of the particular plaintiff' and

concerns `the problem of the relation between individuals which imposes upon one a legal obligation for the benefit of the other.'" "`Duty' is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." [Buczkowski v. McKay, 441 Mich. 96, 100-101, 490 N.W.2d 330 (1992) (citations omitted).]

In Valcaniant v. Detroit Edison Co.,¹⁹ this Court described the factors that are relevant "[i]n determining whether a legal duty exists," such as the

"foreseeability of the harm, degree of certainty of injury, closeness of connection between the conduct and injury, moral blame attached to the conduct, policy of preventing future harm, and . . . the burdens and consequences of imposing a duty and the resulting liability for breach." [Id., quoting Buczkowski, 441 Mich. at 101 n. 4 (citing Prosser & Keaton, Torts [5th ed.], § 53, p. 359 n. 24).]

When performing an analysis of whether a duty existed, this Court considers the foreseeability of harm to the plaintiff, although the "`mere fact that an event is foreseeable does not impose a duty'" on the defendant.²⁰

This case involves the initial question whether an employee's criminal activity is foreseeable by his employer and whether the employer is liable for that criminal activity. In MacDonald v. PKT, Inc.,²¹ this Court dealt with the foreseeability of criminal acts committed by invitees and limited the duty owed by an invitor. We stated:

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...