Jones v. Williams

• Decision Date: 17 July 1987
• Docket Number: Docket No. 90273
• Parties: Jonathan R. JONES, Plaintiff-Appellant, v. Samuel WILLIAMS, Individually and d/b/a Williams Private Patrol Services, Inc., and White Castle System, Inc., A Delaware corporation, Jointly and Severally, Defendants- Appellees. 160 Mich.App. 681, 408 N.W.2d 426
• Court: Court of Appeal of Michigan — District of US

Page 426

408 N.W.2d 426

Jonathan R. JONES, Plaintiff-Appellant, v. Samuel WILLIAMS, Individually and d/b/a Williams Private Patrol Services, Inc., and White Castle System Inc., A Delaware corporation, Jointly and Severally Defendants- Appellees.

Docket No. 90273.

160 Mich.App. 681, 408 N.W.2d 426

Court of Appeals of Michigan.

Submitted March 11, 1987.

Decided April 14, 1987.

Released for Publication July 17, 1987.

[160 MICHAPP 682] Stern & Field by S. Randall Field, Southfield, for plaintiff-appellant.

Martin, Bacon & Martin, P.C. by John W. Crimando, Mount Clemens, for Samuel Williams.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton by Michael L. Updike, Farmington Hills, for White Castle System, Inc.

Before CYNAR, P.J., and WEAVER and CHERRY ^*, JJ.

PER CURIAM.

Plaintiff Jonathan R. Jones appeals as of right from an order of the Wayne Circuit Court granting summary disposition in favor of all defendants. MCR 2.116(C)(8) and (10). We affirm.

I

At approximately 1:30 a.m. on October 31, 1980--so-called "Devil's Night"--plaintiff was wounded in a gunshot assault which occurred in the parking lot adjacent to a restaurant operated by defendant White Castle System, Inc. (defendant restaurant). The restaurant was located at the intersection of Fenkell (Five Mile Road) and the Southfield Expressway Service Drive in Detroit.

Defendant Samuel Williams, doing business as Williams Private Patrol Services, Inc. (defendant security guard) was under contract with defendant restaurant. The contract provided for "uniformed police and guard service at the White Castle restaurants located in the Greater Detroit Metropolitan Area, as instructed by the White Castle Detroit[160 MICHAPP 683] Area Management." The contract further provided that: "Contractor shall maintain order on said premises both inside ... and on its parking lot, and shall direct traffic on said parking lot, at such times as shall be specified by White Castle."

Plaintiff had gone inside the restaurant to order food for takeout and was returning to his car at approximately the same time as another patron, Mr. Ibrahim Ameen Barakat. While the two men were walking to their cars, a Thunderbird backed up toward them at a high rate of speed. The Thunderbird, containing three or four men, had been waiting in the parking lot. The car stopped near plaintiff and Mr. Barakat, and one of the occupants got out and pulled a shotgun from the trunk of the car. Mr. Barakat reached his car; plaintiff ran toward his, apparently trying to distance himself from the man with the shotgun. The Thunderbird moved back and forth, as did plaintiff. When Mr. Barakat finally found himself in a direct line of fire between plaintiff and the man with the shotgun, he threw himself on the ground and attempted to roll underneath his car. The man with the shotgun then fired at plaintiff, wounding him, and after returning the shotgun to the trunk, he closed the lid, got back into the Thunderbird and sped off. Mr. Barakat then ran to the White Castle and had the security guard call the police, who arrived promptly but were unable to apprehend the assailants.

Defendant restaurant moved in the trial court for summary disposition on the basis of failure to state a claim upon which relief can be granted. MCR 2.116(C)(8). Defendant security guard filed a similar motion under MCR 2.116(C)(10), asserting that, except as to damages, plaintiff had presented no genuine issue of material fact, thereby entitling defendant to judgment as a matter of law. The [160 MICHAPP 684] trial court granted both motions, finding that neither defendant was under a legal duty to prevent plaintiff's injuries and that defendants' actions were not the proximate cause of plaintiff's injuries.

On appeal, plaintiff argues that the defendants owed a duty to protect him from the unknown assailant and that failure to comply with that duty resulted in his injuries. Plaintiff urges that a security guard should have been present in the parking lot; alternatively, he argues that defendants could have taken other protective measures such as installation of a driveup window for evening customers. He asserts that the trial court erred when deciding the questions of duty and proximate cause by way of summary disposition.

II

We cannot adopt plaintiff's position. We are unable to find the existence of any genuine fact issue which would have allowed plaintiff to recover and which should have been tried to a factfinder. Motions under MCR 2.116(C)(8) are tested on the basis of the pleadings and should not be granted unless there is no possible factual development which would allow the plaintiff to recover. Harrison Twp v. Calisi, 121 Mich.App. 777, 781-782, 329 N.W.2d 488 (1982). Motions under MCR 2.116(C)(10) should not be granted if there exists any genuine issue of material fact for trial. Brooks v. Reed, 93 Mich.App. 166, 170, 286 N.W.2d 81 (1979).

The question of duty turns on the relationship existing between the actor and the injured person. Moning v. Alfono, 400 Mich. 425, 438-439, 254 N.W.2d 759 (1977), reh. den. 401 Mich. 951 (1977), supplemental order 402 Mich. 958 (1978). Duty and proximate cause are interrelated concepts because both depend in part on foreseeability--whether [160 MICHAPP 685] the actor's harmful conduct, its result and intervening causes were foreseeable. Id. Because duty and proximate cause are often indistinguishable, both questions may be determined by the court. 400 Mich. 440, 254 N.W.2d 759.

We are persuaded by the trial court's reasoning that defendant restaurant was not under a legal duty to secure the parking lot. Defendant restaurant did not even own the lot, but shared it with other businesses and a nearby church at the time of the shooting. ¹ Even had defendant restaurant been the sole owner, it still would not have borne a duty to provide security guards for the lot. Williams v. Cunningham Drug Stores, Inc, 146 Mich.App. 23, 26-27, 379 N.W.2d 458 (1985), lv....