Krass v. Tri-County Sec., Inc.

• Decision Date: 02 February 1999
• Docket Number: Docket No. 204413,TRI-COUNTY
• Parties: Dennis M. KRASS, as Personal Representative of the Estate of Steven G. Krass, Deceased, Plaintiff-Appellant, v. Joliet, Inc., d/b/a/ Harper Food Center, J & E, Inc., d/b/a Harpos Concert Theater, Baldini, Inc., and Allstate Insurance Company, Defendants, andSECURITY, INC., Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 578

593 N.W.2d 578

233 Mich.App. 661

Dennis M. KRASS, as Personal Representative of the Estate of Steven G. Krass, Deceased, Plaintiff-Appellant, v. Joliet, Inc., d/b/a/ Harper Food Center, J & E, Inc., d/b/a

Harpos Concert Theater, Baldini, Inc., and

Allstate Insurance Company, Defendants,

and

TRI-COUNTY SECURITY, INC., Defendant-Appellee.

Docket No. 204413.

Court of Appeals of Michigan.

Submitted Dec. 10, 1998, at Detroit.

Decided Feb. 2, 1999, at 9:25 a.m.

Released for Publication April 21, 1999.

Paskin, Nagi & Baxter, P.C. (by David R. Baxter and Daniel J. Seymour ), for Dennis M. Krass. Detroit.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton (by Janet C. Barnes ), for Tri-County Security, Inc. Farmington Hills.

Before: HOLBROOK, Jr., P.J., and O'CONNELL and WHITBECK, JJ.

WHITBECK, J.

Plaintiff, Dennis M. Krass, personal representative of the estate of Steven G. Krass, appeals as of right an order granting summary disposition in favor of defendant Tri-County Security, Inc., pursuant to MCR 2.116(C)(10). The basic issue is whether a merchant (and, derivatively, the security company that it hires) that takes security precautions by hiring the security company to provide parking lot patrol and serve as a deterrent to crime can be sued on the theory that the safety precautions were less effective than they could have been or should have been. We hold that as a matter of law such a suit is precluded and affirm.

I. Basic Facts And Procedural History

On January 13, 1996, a security guard from Tri-County directed plaintiff's decedent Steven G. Krass, to park his car in a parking lot owned by defendant Joliet, Inc., doing business as Harper Food Center. Steven G. Krass was attending a concert at Harpo's Concert Theatre, which was owned by defendant Baldini, Inc. Tri-County provided security guard services, pursuant to a July 22, 1994, contract with Baldini, Inc. ¹ The contract under the heading of "Specific Duties," stated the following: "Parking Lot Patrol Deterrant (sic) to Crime in parking lots." Attached to the contract, and presumably incorporated therein, was a printed set of terms and conditions. Of direct relevance is Paragraph 9 of these terms and conditions, which stated:

The Client (Baldini, Inc.) understands and agrees that the Security Officers provided by the Company (Tri-County) under this agreement are only a deterrant (sic) to crime, fire and vandalism and that the Company does not claim or guarantee that security may not be circumvented or compromised; that the officer(s) will prevent any and all loss from burglary, hold-up, vandalism, larceny, fire or otherwise. The Company is not itself an insurer. The Client assumes all risk for loss or damage to Client's premises and contents and will maintain his/her own insurance coverage thereon. Client property shall at no time be deemed in the care, custody or control of the Company. The amounts payable to the Company are not sufficient to warrant the Company assuming any risk of consequental (sic) or any other damages which are sustained through burglary, hold-up, fire, larceny vandalism or any other cause or liability by virtue of this Agreement, or because of the relationship because of negligence or otherwise....

Steven G. Krass returned to his car in the early morning of January 14, 1996, and was assaulted by three men. Steven G. Krass was shot in the head and died of that gunshot wound on January 17, 1996. Thereafter, plaintiff brought suit, alleging, among other things, that Tri-County failed to properly protect Steven G. Krass or to control the premises. Plaintiff also alleged that at no time before, during, or after the assault did Tri-County's security guard try to evict, warn, signal, or communicate his presence to the unknown assailants and failed to take any affirmative steps to protect Steven G. Krass from harm. Plaintiff further alleged that, as a result of Tri-County's negligence, Steven G. Krass sustained the injuries that caused his death. The trial court granted Tri-County's motion for summary disposition, finding that Tri-County owed no duty to Steven G. Krass to protect him from the criminal acts of third parties and that he was not a third-party beneficiary of the contract. Plaintiff thereafter brought this appeal. ²

II. Standard Of Review

Tri-County brought its motion pursuant to MCR 2.116(C)(8) and (C)(10). Where the record is unclear with regard to which section of MCR 2.116 the trial court based its ruling, and both the defendant and the trial court relied on documentary evidence beyond the pleadings in support of the defendant's motion for summary disposition, this Court must construe the defendant's motion as being granted pursuant to MCR 2.116(C)(10). Osman v. Summer Green Lawn Care, Inc., 209 Mich.App. 703, 705, 532 N.W.2d 186 (1995). This Court reviews the trial court's grant of summary disposition de novo. Pinckney Community Schools v. Continental Casualty Co., 213 Mich.App. 521, 525, 540 N.W.2d 748 (1995). This Court must review the trial court record to determine if the movant was entitled to judgment as a matter of law. Phillips v. Deihm, 213 Mich.App. 389, 398, 541 N.W.2d 566 (1995). All reasonable inferences are to be drawn in favor of the nonmoving party. Paul v. Lee, 455 Mich. 204, 210, 568 N.W.2d 510 (1997).

III. Third-Party Beneficiary

Plaintiff argues that Steven G. Krass was a third-party beneficiary of the contract between Tri-County and Baldini, Inc. We can dispose of this argument summarily. "For a plaintiff to sue on a contract to which he is not a party, it must be determined that the plaintiff was an intended third-party beneficiary of the contract which suit is brought on." Rhodes v. United Jewish Charities of Detroit, 184 Mich.App. 740, 744, 459 N.W.2d 44 (1990). Pursuant to M.C.L. § 600.1405(1); MSA 27A.1405(1), a promise will be construed to have been made for the benefit of a person when the promisor undertook to give or to do or refrain from doing something directly to or for that person. An objective standard must be used by the court in determining the plaintiff's status. Rhodes, supra at 744, 459 N.W.2d 44. "The contract itself reveals the party's intentions." Id. As noted above, the contract stated: "Parking Lot Patrol Deterrant (sic) to Crime in parking lots." There was no provision in this contract relating to the safety of patrons, employees, or anyone else. Steven G. Krass was not a third-party beneficiary because the contract did not provide for something to be done directly to or for him, or any other patron. The case cited by plaintiff in the reply brief, Koenig v. South Haven, 221 Mich.App. 711, 562 N.W.2d 509 (1997), does not persuade us to the contrary.

IV. Duty

A. Introduction

Plaintiff argues that the trial court erred in granting summary disposition because plaintiff submitted documentary evidence that demonstrated a genuine issue of material fact regarding whether Tri-County's security guard was negligent. We disagree and we note, as outlined more fully below, that in making this argument plaintiff elides the initial question whether a duty existed as a matter of law. "The issue of duty is one of law for the court, which must assess competing policy considerations to determine whether the relationship between the parties will occasion a legal obligation to the injured party." Tame v. A L Damman Co., 177 Mich.App. 453, 455, 442 N.W.2d 679 (1989), citing Madley v. Evening News Ass'n, 167 Mich.App. 338, 341, 421 N.W.2d 682 (1988).

B. The Geographic Extent Of Duty

This case presents an interesting factual anomaly that, fortunately, is unnecessary for us to decide. Tri-County notes that the Harper Food Center parking lot to which the security guard directed Steven G. Krass was not owned by Baldini, Inc., and, therefore, the premises in which he was assaulted and killed were arguably not covered by the contract. ³ Plaintiff, however, points out that there is deposition testimony to the effect that Baldini, Inc., actually owned no parking lots. Therefore, plaintiff argues, Baldini, Inc., depended on its customers parking in lots owned by others. There is conflicting deposition testimony regarding whether Baldini, Inc., ever directed Tri-County to patrol or place guards at or in the Harper Food Center parking lot and whether Tri-County ever actually patrolled or placed guards at or in that parking lot. Nevertheless, it is clear that Tri-County's security guard directed Steven G. Krass to the Harper Food Center parking lot. We therefore assume without deciding that, viewing the facts in a light most favorable to plaintiff, ⁴ Baldini, Inc., and its agent Tri-County had possession and control of the Harper Food Center parking lot, at least to the extent that Steven G. Krass was directed to park there. Because we decide the case on other grounds, we do not need to consider the geographic extent of any duty.

C. A Prima Facie Case Of Negligence And The General Concept Of Duty

To establish a prima facie case of negligence, the plaintiff must prove: (1) that the defendant owed a duty to the plaintiff; (2) that the defendant breached that duty; (3) that the defendant's breach of duty was a proximate cause of the plaintiff's damages; and (4) that the plaintiff suffered damages. Babula v. Robertson, 212 Mich.App. 45, 48, 536 N.W.2d 834 (1995).

Despite plaintiff's emphasis on the alleged negligence of Tri-County's security guard, this case essentially revolves around the existence of a duty, rather than whether Tri-County negligently performed any such duty, if it existed. Generally, duty is any obligation that the defendant has to the plaintiff to avoid negligent conduct. Simko v. Blake, 448 Mich. 648, 655, 532 N.W.2d 842 (1995). As a general rule, there is no legal duty that obligates one person to aid or protect another. 2 Restatement Torts, 2d, § 314, p. 116; Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 498-499, 418 N.W.2d 381 (1988); Johnson v. Bobbie's...