Marr v. Yousif

• Decision Date: 19 April 1988
• Docket Number: Docket No. 96932
• Citation: 422 N.W.2d 4,167 Mich.App. 358
• Parties: Dennis C. MARR and Cheryl E. Marr, Plaintiffs-Appellants, v. Salim YOUSIF, Zuhair Garmo, Edi Koza and the Estate of Faraj John, d/b/a Spot Lite Market, jointly and severally, Defendants-Appellees. 167 Mich.App. 358, 422 N.W.2d 4
• Court: Court of Appeal of Michigan — District of US

Page 4

422 N.W.2d 4

Dennis C. MARR and Cheryl E. Marr, Plaintiffs-Appellants, v. Salim YOUSIF, Zuhair Garmo, Edi Koza and the Estate of Faraj John, d/b/a Spot Lite Market, jointly and severally, Defendants-Appellees.

Docket No. 96932.

167 Mich.App. 358, 422 N.W.2d 4

Court of Appeals of Michigan.

Submitted Nov. 18, 1987.

Decided March 21, 1988.

Released for Publication April 19, 1988.

[167 MICHAPP 359] Benner & Bilicki by Mark E. Boegehold, Farmington Hills, for plaintiffs-appellants.

Vandeveer, Garzia, Tonkin, Kerr, Heaphy, Moore, Sills & Poling, P.C. by Robert D. Brignall, Detroit, for defendants-appellees.

Before WALSH, P.J., and SHEPHERD and DAVIS, ^* JJ.

SHEPHERD, Judge.

Plaintiffs filed a complaint arising out of a robbery of Dennis Marr (hereinafter plaintiff) by two unidentified persons while plaintiff was in the course of delivering merchandise to defendants' store. Defendants were granted summary disposition and plaintiff appeals.

On March 27, 1981, at approximately 2:30 p.m., plaintiff was delivering merchandise in the course of his employment to defendant Spot Lite Market located at 5555 Tireman in the City of Detroit. Plaintiff drove a truck with a cargo box accessible not from the truck cab but by doors in the rear of the truck which opened out. The store is set back [167 MICHAPP 360] from the road with parking between the road and the store. In the front of the building were two doors, one for customers on the right and one leading directly into the stockroom on the left.

Plaintiff asked to use the left door to deliver his goods out of concern for his safety, but the store manager did not permit him to use that door. Large poles surrounding the entrance to the right hand door (apparently to prevent customers from taking shopping carts to the parking lot) prevented plaintiff from making his delivery in one load but required him to make three trips. On his third trip to the vehicle he was robbed at gunpoint in the cargo area of the truck by two men.

On July 15, 1986, defendants filed a motion for summary disposition on the grounds that plaintiffs had failed to state a claim on which relief could be granted because defendants owed no duty to protect plaintiff from this robbery. MCR 2.116(C)(8). On July 28, 1986, plaintiffs filed an answer to defendants' motion and also filed their own cross-motion for summary disposition on the grounds that, except as to damages, there was no genuine issue of material fact. MCR 2.116(C)(10). At the close of oral argument on the cross-motion and at the close of oral argument following plaintiffs' motion for rehearing, the trial court concluded that defendants owed no duty to plaintiff as a matter of law. In its November 4, 1986, written order the court concluded that "there exists no genuine issue of any material fact as those facts relate to the issue of duty raised and alleged." We affirm the trial court's ruling and conclude that summary disposition was proper under either MCR 2.116(C)(8) or (C)(10).

A motion for summary disposition for failure to state a claim upon which relief can be granted [167 MICHAPP 361] challenges the legal sufficiency of a plaintiff's claim and should be considered by an examination of the pleadings alone. Harris v. Detroit, 160 Mich.App. 223, 226, 408 N.W.2d 82 (1987). Such a motion accepts as true all factual allegations well pled by the plaintiff. McNeal v. Henry, 82 Mich.App. 88, 89, 266 N.W.2d 469 (1978).

The general rule is that a business invitor owes a duty to its customers to maintain its premises in a reasonably safe condition and to exercise ordinary care and prudence to keep the premises reasonably safe. Dumka v. Quaderer, 151 Mich.App. 68, 73, 390 N.W.2d 200 (1986), lv. den. 426 Mich. 861 (1986). However, merely identifying the person injured as a business invitee does not mean that a duty is owed in all situations and circumstances. In a negligence action, the question of whether a duty exists is one of law for the court's resolution. Moning v. Alfono, 400 Mich. 425, 436-437, 254 N.W.2d 759 (1977), reh. den. 401 Mich. 951 (1977). Duty is essentially a question of whether the law will impose a legal obligation on one party for the benefit of another. Moning, at 437, 254 N.W.2d 759. While foreseeability of the harm is an important consideration in determining whether a duty exists, courts must also assess the competing public policy considerations for and against recognizing the asserted duty in any individual case. Friedman v. Dozorc, 412 Mich. 1, 22, 312 N.W.2d 585 (1981); Williams v. Cunningham Drug Stores, Inc, 429 Mich. 495, 418 N.W.2d 381 (1988). Where a court determines that no duty exists, then summary disposition for failure to state a claim is an appropriate remedy. See, e.g., McNeal, supra.

In Williams, plaintiff, a customer in defendant's store, was shot during a robbery attempt. The trial court directed a verdict in favor of defendant, holding that defendant had no duty as a matter of [167 MICHAPP 362] law. The Supreme Court ultimately affirmed. The Williams Court reasoned:

"In deciding this question, we note that the court and jury perform different functions in a negligence case. Among other things, the court decides the questions of duty and the general standard of care, and the jury determines what constitutes reasonable care under the circumstances. However, in cases in which overriding public policy concerns arise, the court determines what constitutes reasonable care. See Moning v Alfono, 400 Mich 425, 438; 254 NW2d 759 (1977), reh den 401 Mich 951 (1977). Such public policy concerns exist in the present case, and therefore the question whether defendant's conduct constituted reasonable care is one the court should determine as a matter of law.

"We agree with the Court of Appeals that a merchant's duty of reasonable care does not include providing armed, visible security guards to deter criminal acts of third parties. We decline to extend defendant's duty that far in light of the degree of control in a merchant's relationship with invitees, the nature of the harm involved, and the public interest in imposing such a duty." (Footnotes omitted.) Williams, 550-501, 418 N.W.2d 381.

The pertinent facts alleged in plaintiffs' complaint are that there had been a number of crimes, such as assaults and unarmed and armed robberies, at defendants' premises and that on March 27, 1981, plaintiff was delivering merchandise in the course of his employment at defendants' market and was assaulted ... and robbed by two unidentified persons. Plaintiffs' allegation of duty is general in nature. Plaintiffs alleged that defendants "owed plaintiff the duty to use ordinary care to have its common areas and premises in a reasonably safe condition for use in a matter consistent with the purpose of the invitation; not to lead the invitee [167 MICHAPP 363] into a dangerous trap, but instead to give adequate protection and/or timely notice and warning of latent or...