Harkins v. Northwest Activity Center, Inc., 86638

• Decision Date: 13 April 1990
• Docket Number: No. 106879,No. 86638,86638,106879
• Parties: Lisa HARKINS, Plaintiff-Appellee, v. NORTHWEST ACTIVITY CENTER, INC., a Non-Profit Michigan Corporation, Defendant-Appellant. COA
• Court: Michigan Supreme Court

Page 677

453 N.W.2d 677

434 Mich. 896

Lisa HARKINS, Plaintiff-Appellee, v. NORTHWEST ACTIVITY CENTER, INC., a Non-Profit Michigan

Corporation, Defendant-Appellant.

No. 86638.

COA No. 106879.

Supreme Court of Michigan.

April 13, 1990.

ORDER

On order of the Court, the application for leave to appeal is considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals and REINSTATE the judgment of the Wayne Circuit Court granting summary disposition to defendant.

In Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 418 N.W.2d 381 (1988), we held, for reasons of public policy, that a landowner/occupier's duty to exercise reasonable care for the safety of its invitees does not extend to anticipating and providing protection against the criminal acts of third parties.

Here, defendant's exposure to liability for a criminal assault on its property has been premised upon a defective condition--a hole in the boundary fence that facilitated the assailant's entry, notwithstanding that the facility was open to the public and the assailant could have entered by other means. Plaintiff and the Court of Appeals have not identified any foreseeable hazard presented by the hole in the fence, other than the possibility that it could be acted upon by a third party in carrying out a criminal act.

We perceive no distinction between requiring defendant to anticipate this hazard and requiring defendant to anticipate and protect against the general hazard of crime in the community. Plaintiff's present cause of action is precluded for reasons expressed in Williams. See also, Moning v. Alfono, 400 Mich. 425, 438, 254 N.W.2d 759 (1977), reh. den. 401 Mich. 951 (1977).

BOYLE, J., would grant leave to appeal.

LEVIN, J., would deny leave to appeal and states as follows:

I

The opinion of the Court of Appeals sets forth the facts and its reasoning:

"Plaintiff appeals by right from the Wayne Circuit Court order granting defendant's motion for summary disposition, MCR 2.116(C)(10). We reverse.

"Plaintiff brought this action to recover for injuries sustained when she was shot while lawfully on the premises of defendant Northwest Activity Center, a nonprofit organization which provides community activities. Plaintiff alleged in her complaint that defendant failed to maintain the boundary fence and, as a result, that the assailant gained access to the premises through a hole in the fence. Plaintiff also alleged that defendant failed to provide adequate security and that defendant knew or should have known of the propensity of criminal activity on the premises because of similar prior incidents. Plaintiff also submitted interrogatories to defendant. Defendant denied plaintiff's allegations and gave limited answers to only a few of plaintiff's interrogatories.

"Defendant filed a motion for summary disposition and plaintiff filed a motion to compel answers to interrogatories. At the motion hearing, in reliance on Williams v. Cunningham Drug Stores, 429 Mich. 495, 418 N.W.2d 381 (1988), the trial court granted defendant's motion, rendering moot plaintiff's motion to compel. While we agree that Williams is dispositive as to plaintiff's allegation of a duty to provide security, we remand for further discovery on plaintiff's negligence claim.

"Summary disposition is premature where discovery on a disputed issue is incomplete.... The standard of review is whether discovery stands a fair chance of uncovering factual support for the opposing party's position....

"Here, plaintiff alleged that defendant negligently failed to maintain its premises and allowed the boundary fence to deteriorate, that the assailant gained entry through the defective fence and that the incident here was foreseeable because of prior similar incidents.

"As a general rule, a business invitor owes a duty to invitees to maintain its premises in a reasonably safe condition and to exercise ordinary care and prudence to keep the premises reasonably safe. Foreseeability of the harm is an important consideration in determining whether a duty exists....

"This is not a case where plaintiff alleges that defendant had a duty to provide security measure or to equip its premises with fences, locks or lighting. See generally Williams, 429 Mich. 501, 504, 418 N.W.2d 381.... In this case, the fence was already in existence and, while defendant could not control the incidence of crime in the community, it was clearly within defendant's ability to control the condition of its premises by correcting physical defects. Williams, 429 Mich. 502, 418 N.W.2d 381.

"In determining whether defendant breached a duty in this case and whether the hole in the fence was a proximate cause of plaintiff's injury, it is necessary to consider whether an unreasonable risk of harm could have been anticipated, or whether the dangers here were 'so obvious and apparent that an invitee may be expected to discover them himself.' Williams, 429 Mich. 500, 418 N.W.2d 381.... Since it appears that further discovery could uncover factual support for plaintiff's negligence claim, summary disposition was prematurely granted." Harkins v. Northwest Activity Center, Inc., unpublished opinion per curiam of the Court of Appeals decided June 27, 1989 (Docket No. 106879).

II

The assertion in the peremptory order of reversal that the plaintiff did not identify a "hazard presented by the hole in the fence, other than the possibility that it could be acted upon by a third party in carrying out a criminal act," ignores plaintiff's assertions that the hole in the fence affirmatively aided the assailant to gain entry to the premises and approach the plaintiff without detection by defendant, the plaintiff, or other patrons, and that had there been no hole in the fence, the assailant might have been seen approaching before the assault. It...