MacDonald v. PKT, INC.

Decision Date26 June 2001
Docket NumberDocket No. 5-6.,Docket No. 115322,Docket No. Calendar,Docket No. 114039
Citation464 Mich. 322,628 N.W.2d 33
PartiesMolly MacDONALD, Plaintiff-Appellee, v. PKT, INC., known as Pine Knob Music Theater, and Arena Associates, jointly and severally, Defendants-Appellants, and Capital Cities/ABC, Inc, Defendant. Stephen L. Lowry, Plaintiff-Appellant, v. Cellar Door Productions of Michigan, Inc, a Michigan corporation, and Arena Associates Inc, d/b/a Pine Knob Music Theater, jointly and severally, Defendants-Appellees.
CourtMichigan Supreme Court

Lopatin, Miller, Freedman, Bluestone, Herskovic & Domol (by Richard E. Shaw), Southfield, MI, for plaintiff-appellee in MacDonald.

Marc S. Morse, Farmington Hills, MI, for plaintiff-appellant in Lowry.

Dykema Gossett, P.L.L.C. (by Kathleen McCree Lewis, Kevin P. Fularczyk, and Katherine M. White), Detroit, MI, for defendants-appellants in MacDonald.

Secrest, Wardle, Lynch, Hampton, Truex & Morley (by Janet Callahan Barnes and Jeff Matis), Farmington Hills, MI, for defendants-appellees in Lowry.

Kirk, Huth & Davis, P.C. (by Robert S. Huth, Jr.), Mt. Clemens, MI, and Madden & Patton, L.L.C. (by Turner D. Madden), Washington, DC, for amicus curiae International Assembly of Managers.

YOUNG, J.

I. INTRODUCTION

In these consolidated premises liability cases, plaintiffs seek to recover for injuries they suffered when fellow concertgoers at the Pine Knob Music Theater (Pine Knob), an outdoor amphitheater that offered seating on a grass-covered hill, began pulling up and throwing pieces of sod. We granted leave to address the duty of premises owners concerning the criminal acts of third parties.

Under Mason v. Royal Dequindre, Inc., 455 Mich. 391, 566 N.W.2d 199 (1997), merchants have a duty to respond reasonably to situations occurring on the premises that pose a risk of imminent and foreseeable harm to identifiable invitees. We hold today that the duty to respond is limited to reasonably expediting the involvement of the police and that there is no duty to otherwise anticipate and prevent the criminal acts of third parties. Finally, consistent with Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 418 N.W.2d 381 (1988), and Scott v. Harper Recreation, Inc., 444 Mich. 441, 506 N.W.2d 857 (1993), we reaffirm that merchants are not required to provide security personnel or otherwise resort to self help in order to deter or quell such occurrences.

II. FACTUAL AND PROCEDURAL BACKGROUND
A. MACDONALD

In MacDonald, plaintiff Molly MacDonald attended a concert on May 4, 1995, at Pine Knob at which several bands were performing. Pine Knob offers seating on a grass-covered hill, as well as seating in a pavilion. Plaintiff received the tickets to the concert as part of a promotional giveaway by a local radio station sponsoring the concert. When plaintiff arrived at Pine Knob, she and a friend found a spot to sit on the hill. While a band called Bush was performing, some patrons began pulling up sod and throwing it.

Before the concert, the event coordinator had asked the bands to stop performing in the event that the audience members began throwing sod, and announce that the sod throwing must stop. There were also flyers posted in the dressing rooms of the bands requesting the bands to make an announcement to the audience to stop throwing sod. Pursuant to that request, the band finished the song and stopped performing, making an announcement that unless the sod throwing stopped, the concert would not continue. The crowd complied with the band's request, and several individuals were ejected from Pine Knob for throwing sod.

While the next band, the Ramones, was performing, the sod throwing resumed. After that band refused to make an announcement to stop throwing sod, the event coordinator turned on the house lights. When the sod throwing continued, the band made an additional announcement demanding that it stop. Once again, several individuals who were involved in throwing sod were ejected from the theater. During the second incident of sod throwing, plaintiff fractured her ankle when she fell while attempting to avoid being struck by a piece of sod. Discovery materials indicated that there had been two sod-throwing incidents at previous concerts at Pine Knob, one incident in 1991, at a Lollapalooza concert, and another incident in 1994, at a Metallica concert.1

Plaintiff filed a complaint against, among others, PKT, Inc., also known as Pine Knob Music Theater and Arena Associates.2 Plaintiff alleged that Pine Knob was negligent in failing to provide proper security, failing to stop the performance when it should have known that continuing the performance would incite the crowd, failing to screen the crowd to eliminate intoxicated individuals, and by selling alcoholic beverages. Pine Knob moved for summary disposition, arguing that it did not have a duty to protect plaintiff from the criminal acts of third parties. Meanwhile, plaintiff moved to amend her complaint to add certain theories including design defect, nuisance, and third-party beneficiary claims and to more specifically set forth her negligence claim. The trial court granted summary disposition for Pine Knob pursuant to MCR 2.116(C)(8) and (10), but the Court of Appeals reversed.3 The Court of Appeals held that the trial court erred in granting summary disposition in favor of Pine Knob because there were fact questions for the jury regarding whether the sodthrowing incident created a foreseeable risk of harm and whether the security measures taken by Pine Knob were reasonable. The Court of Appeals reasoned that plaintiff submitted evidence that there had been incidents of sod throwing at previous concerts, that Pine Knob was aware of those instances, and that it had formulated policies to deal with sod throwing incidents before the concert. Regarding the question whether security measures taken by Pine Knob were reasonable, the Court of Appeals stated that plaintiff presented evidence sufficient to survive summary disposition by submitting the affidavit of an expert witness who stated that Pine Knob was negligent by (1) failing to have adequately trained security personnel properly positioned at the concert,4 (2) failing to summon the police to eject or arrest those throwing sod, (3) failing to have a clear, written policy regarding the sod throwing, (4) allowing the concert to continue after the first incident, and (5) serving alcohol.

Finally, the Court of Appeals held that the trial court abused its discretion in denying plaintiff's motion to amend her complaint pursuant to MCR 2.116(I)(5). The Court of Appeals stated that the proposed claims were legally sufficient and were justified by the evidence. This Court granted Pine Knob's application for leave to appeal.5

B. LOWRY

In Lowry, plaintiff and a friend attended a Suicidal Tendencies/Danzig/Metallica concert at Pine Knob on June 22, 1994. Plaintiff suffers from multiple sclerosis and uses the aid of two canes or a wheelchair. Plaintiff was seated in the handicapped section at Pine Knob, which is located at the rear of the pavilion immediately adjacent to the grass seating. During the performance of Danzig, patrons seated on the lawn of Pine Knob began throwing sod. Plaintiff was allegedly struck with sod on the head and shoulders. Within a few minutes, the band stopped performing and an announcement was made requiring individuals to stop or the concert would not continue. Alcohol sales were cut off. Deposition testimony indicated that the sod throwing stopped within ten to fifteen minutes and numerous individuals were ejected from Pine Knob.6

Plaintiff brought a negligence action against Pine Knob, as well as Cellar Door Productions of Michigan, Inc., the producer of the concert, alleging that defendants failed to protect plaintiff from the foreseeable dangers of sod throwing by patrons. Plaintiff also alleged that defendants violated his rights under the Michigan Handicapper's Civil Rights Act (MHCRA), (now: Persons With Disabilities Civil Rights Act), M.C.L. § 37.1101 et seq., by failing to adequately accommodate his disability.

Defendants moved for summary disposition under MCR 2.116(C)(8) and (10), arguing that they owed no duty to protect plaintiff from the criminal acts of third parties, and that plaintiff's handicap was fully accommodated. With regard to plaintiff's premises liability claim, the trial court granted summary disposition for defendants on the ground that the sod throwing was unforeseeable and that defendants took reasonable measures to protect their patrons. The trial court also granted summary disposition for defendants on plaintiff's handicapper discrimination claim, holding that defendants provided plaintiff with full and equal utilization of the facilities.

The Court of Appeals affirmed in an unpublished per curiam decision.7 As an initial matter, the Court of Appeals noted that both the parties and the trial court had failed to recognize that because Cellar Door was not the owner of the premises, it could not have been negligent under a premises liability theory.8 By implication, the Court also held that Cellar Door could not have violated plaintiff's rights under the MHCRA. With regard to Pine Knob, the Court of Appeals held that it owed no duty to protect plaintiff because it was unforeseeable as a matter of law that the crowd would throw sod at plaintiff during the concert. In that respect, the Court of Appeals found that the instant case was factually distinguishable from MacDonald because (1) unlike MacDonald, in the instant case there was no evidence whatsoever that defendants had formulated a specific policy to deal with sod throwing incidents, (2) the sodthrowing incident in this case occurred before the incident in MacDonald, and (3) in MacDonald, the plaintiff was injured during the second occurrence of sod throwing during the same concert, whereas in this case, there were no incidents of sod...

To continue reading

Request your trial
63 cases
  • In re Flint Water Cases
    • United States
    • U.S. District Court — Eastern District of Michigan
    • January 10, 2022
    ...may well have been criminal conduct, which is ordinarily unforeseeable as a matter of law. See, e.g., MacDonald v. PKT, Inc. , 464 Mich. 322, 334-335, 628 N.W.2d 33 (2001). But Plaintiffs' expert witness opines that any reasonable engineer in VNA's position would have known that immediate c......
  • Bragan ex rel. Bragan v. Symanzik
    • United States
    • Court of Appeal of Michigan — District of US
    • October 13, 2004
    ...397, 605 N.W.2d 685 (1999). 5. Singer v. American States Ins., 245 Mich.App. 370, 374, 631 N.W.2d 34 (2001). 6. MacDonald v. PKT, Inc., 464 Mich. 322, 332, 628 N.W.2d 33 (2001). 7. SJI2d 10.06 (emphasis added). See also Fire Ins. Exch. v. Diehl, 450 Mich. 678, 688, 545 N.W.2d 602 (1996), ov......
  • Auto-Owners Ins. Co. v. Seils
    • United States
    • Court of Appeal of Michigan — District of US
    • March 26, 2015
    ...Id. at 488, 656 N.W.2d 195. The Court analyzed whether a duty of care existed under the standards discussed in MacDonald v. PKT, Inc., 464 Mich. 322, 628 N.W.2d 33 (2001), which addressed a merchant's duty to protect business invitees from the criminal acts of third parties. This Court held......
  • Bailey v. Schaaf
    • United States
    • Court of Appeal of Michigan — District of US
    • August 18, 2011
    ...tenants. The third issue concerns the extent to which a premises possessor has a duty to respond to criminal acts. Relying on MacDonald v. PKT, Inc.,1 we conclude that a premises possessor has a duty to take reasonable measures in response to an ongoing situation that is occurring on the pr......
  • Request a trial to view additional results
2 firm's commentaries
  • Michigan Supreme Court Decision Imposes New Duty On Landlords
    • United States
    • Mondaq United States
    • November 1, 2013
    ...the 2001 case of MacDonald v PKT, Inc, 464 Mich. 322 (2001), the Michigan Supreme Court ruled that merchants have a limited duty to contact the police in situations where there is a risk of imminent and foreseeable harm to an identifiable invitee. In a recent split decision, Bailey v Schaff......
  • Real Estate Legal News, October 2013 • Volume 4, Number 1
    • United States
    • Mondaq United States
    • November 1, 2013
    ...the family. MICHIGAN SUPREME COURT DECISION IMPOSES NEW DUTY ON LANDLORDS By Ryan C. Mitchell In the 2001 case of MacDonald v PKT, Inc, 464 Mich. 322 (2001), the Michigan Supreme Court ruled that merchants have a limited duty to contact the police in situations where there is a risk of immi......
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT