Bryant v. Brannen

• Decision Date: 26 October 1989
• Docket Number: Docket No. 111708
• Citation: 446 N.W.2d 847,180 Mich.App. 87
• Parties: Dale A. BRYANT, Sr., and Sharon Bryant, individually and as next friend of Dale A. Bryant, Jr., Plaintiffs-Appellees, v. C.J. BRANNEN, Defendant-Appellant, and Gene Blakely, Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 847

446 N.W.2d 847

180 Mich.App. 87

Dale A. BRYANT, Sr., and Sharon Bryant, individually and as next friend of Dale A. Bryant, Jr., Plaintiffs-Appellees, v. C.J. BRANNEN, Defendant-Appellant and Gene Blakely, Defendant.

Docket No. 111708.

Court of Appeals of Michigan.

Submitted Sept. 20, 1988.

Decided Sept. 5, 1989.

Released for Publication Oct. 26, 1989.

Becker & Van Cleef, P.C. by Frank G. Becker, Southfield, for plaintiffs.

Berkley, Rudick & Chernikov by Stuart M. Rudick, Detroit, for defendant.

Before HOLBROOK, P.J., and J.H. GILLIS and GRIBBS, JJ.

J.H. GILLIS, Judge.

Plaintiff Dale A. Bryant, Sr. (hereinafter plaintiff), testified that on Sunday evening, May 30, 1982, he was working on his own door while standing in his apartment. Plaintiff was making noise and defendant Blakely, the apartment manager, who lived directly across the hall from plaintiff, opened his apartment door and said: "Don't mess with that door." Plaintiff asked: "What door?" Blakely repeated: "Don't mess with that door." Plaintiff believed that Blakely was talking about the fire escape door, which was locked and boarded up. Plaintiff continued to work on his own door. Blakely then said: "I'm not scared of you." Plaintiff did not know what Blakely was talking about. Blakely then said: "Wait a minute." Blakely then went into his apartment and returned to his doorway with a rifle at his side. Plaintiff retreated into his apartment, but realized that he had left the door open. When plaintiff went to close the door he was shot in his own apartment's hallway which led to the door. Plaintiff was paralyzed from the chest down and eventually his legs were amputated.

Plaintiff testified:

I don't think the guy [Blakely] was in his right mind. I don't think he was sober. I think he was drunk or high.... I haven't [sic] provoked the guy before.

Plaintiff denied having a gun.

Plaintiff also testified that numerous criminal activities had occurred in the building, including a prior shooting, drug dealing, and breakings and enterings.

Two unidentified witnesses carried plaintiff into his living room after the shooting. Only Blakely's rifle was recovered by the police.

Blakely told police that he was nailing the fire escape door closed and that plaintiff kept removing the nails. They got into an argument. Plaintiff threatened Blakely and then plaintiff went into his apartment. Fearing plaintiff was retrieving a weapon, Blakely got his rifle and shot plaintiff. The officers testified that Blakely did not appear intoxicated. While Blakely reported the incident and later turned himself in, he subsequently fled the jurisdiction.

On the other hand, defendant-appellant Brannen's witnesses testified that Blakely was fixing the fire escape door and told plaintiff not to remove the lock thereon. Plaintiff then threatened to kill Blakely. Plaintiff returned with a pistol in his hand and Blakely shot plaintiff.

Defendant Brannen (hereinafter defendant), the apartment building owner, testified that Blakely was a handyman and noted that many tenants, including plaintiff and his wife, had performed tasks in the building for pay. Defendant did not know that Blakely had a rifle and there was no evidence that Blakely was authorized to carry a rifle or had carried a rifle while performing his duties.

Plaintiff sued defendant, claiming that he should have provided security guards to protect plaintiff from the assault by Blakely, defendant's employee and plaintiff's fellow tenant, and that defendant was liable for Blakely's assault under the doctrine of respondent superior.

The trial court denied defendant's motion for a directed verdict on these theories. The jury returned a verdict in favor of plaintiff for $2,500,000, finding that defendant was negligent in failing to provide security guards and that Blakely was acting within the scope of his employment when he assaulted plaintiff. The jury awarded plaintiff's wife $12,500 and his son $50,000. The trial court denied defendant's subsequent motions for remittitur, a judgment notwithstanding the verdict, or a new trial.

Defendant then appealed as of right, claiming the trial court should have granted his motion for a directed verdict. This Court affirmed. Bryant v Brannen, unpublished opinion per curiam of the Court of Appeals, decided February 19, 1988 (Docket No. 93843). Defendant then appealed to our Supreme Court, which remanded for reconsideration in light of Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 418 N.W.2d 381 (1988). Bryant v. Brannen, 431 Mich. 865, 428 N.W.2d 346 (1988). In its order, our Supreme Court stated:

This order should not be understood as precluding reconsideration of the issue involving the doctrine of respondeat superior should the Court of Appeals desire to do so. [Id. at 864-865, 428 N.W.2d 346.]

In reviewing the trial court's denial of a motion for a directed verdict, this Court examines the testimony and all legitimate inferences that may be drawn therefrom in the light most favorable to the nonmoving party. Butt v. Giammariner, 173 Mich.App. 319, 323, 433 N.W.2d 360 (1988). If there are material issues of fact upon which reasonable minds could differ, the matter is properly submitted to the jury. Id.

Plaintiffs' first theory of recovery was that defendant as a landlord had a duty to provide security guards to protect plaintiff from the assault by Blakely, plaintiff's fellow tenant and defendant's employee.

In Johnston v. Harris, 387 Mich. 569, 198 N.W.2d 409 (1972), our Supreme Court held that the defendant landlord was not entitled to a directed verdict where the tenant plaintiff presented evidence that he was robbed and assaulted by a youth who was lurking in the poorly lit, unlocked vestibule of the defendant's apartment building. The plaintiff presented expert testimony linking poor lighting and night crime. The Court ruled that while an intentional crime is a superseding cause of harm where a person's negligence created a situation which afforded a third person the opportunity to commit the crime, such a crime is not a superseding cause of the plaintiff's harm if the negligent actor at the time of his conduct realized or should have realized the likelihood that such a situation might be created and that a third person might avail himself of the opportunity to commit such a crime. Id. at 574, 198 N.W.2d 409 (quoting 2 Restatement Torts, 2d, Sec. 448, p 480).

Justice T.E. Brennan dissented, noting:

Public safety is the business of government.

Today's decision concedes the failure of government to make the streets and homes of certain areas reasonably safe and, in effect, transfers the governmental function of public protection to the unfortunate owners of real property in such places.

Already overburdened by taxes largely laid to pay for public safety, these owners will now be required to maintain additional lighting, guards, enclosures, alarms, locks and take every other precaution to avoid reasonably foreseeable conditions which attract criminals to carry out their nefarious deeds. [Id. at 576, 198 N.W.2d 409.]

In Samson v. Saginaw Professional Building, Inc., 393 Mich. 393, 224 N.W.2d 843 (1975), the plaintiff worked for a lawyer who leased an office on the fifth floor of the defendant's building. The Saginaw Mental Health Clinic also leased space in the defendant's building, but on the fourth floor. The clinic treated mental health patients, including those from Traverse City State Hospital and from Ionia State Prison. Tenants in the defendant's building told defendant's representatives that they were afraid of the clinic's patients who had to use the stairs and elevators to reach the clinic. The defendant took no action. The plaintiff was attacked by one of the clinic's patients in an elevator.

Our Supreme Court held:

Whether or not the landlord retains any responsibility for actions which occur within the confines of the now leased premises is not now before this Court and need not be answered. It would appear, however, that he would not retain any responsibility for such actions except in the most unusual circumstances. However, the landlord has retained his responsibility for the common areas of the building which are not leased to his tenants. The common areas such as the halls, lobby, stairs, elevators, etc., are leased to no individual tenant and remain the responsibility of the landlord. It is his responsibility to insure that these areas are kept in good repair and reasonably safe for the use of his tenants and invitees.

The existence of this relationship between the defendant and its tenants and invitees placed a duty upon the landlord to protect them from unreasonable risk of physical harm. [Id. at 407, 224 N.W.2d 843. Emphasis supplied.]

In an addendum to its opinion, our Supreme Court noted the following reasonable actions which the defendant could have taken:

An ordinarily prudent person might have rented to the state only office space on the first floor so that mental patients would have no need to use elevators, stairwells, or other common areas of the building. He might have placed a guard on the elevators to protect people lawfully using them. [Id. at 410, 224 N.W.2d 843.]

Justice Levin, dissenting, noted that the defendant's building contained no unremedied physical defects in the common areas which would allow the clinic's patients to commit a crime. Samson, supra at 414-415, 420-421, 224 N.W.2d 843. Two other justices agreed.

Then, in Williams, supra, our Supreme 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. In Williams, the plaintiff was a store patron. The defendant store was robbed and the plaintiff inadvertently ran out behind the robber, who shot him. Our Supreme Court noted that owners and occupiers of land are in a special relationship with their invitees and have a duty to exercise...