Roberts v. Pinkins

• Decision Date: 10 November 1988
• Docket Number: Docket No. 100737
• Citation: 171 Mich.App. 648,430 N.W.2d 808
• Parties: Derinda ROBERTS, Plaintiff-Appellant, v. Pollie PINKINS, Eugene Gilmer, Jr., and New Center Realty, Inc., a Michigan corporation, jointly and severally, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 808

430 N.W.2d 808

171 Mich.App. 648

Derinda ROBERTS, Plaintiff-Appellant, v.Pollie PINKINS, Eugene Gilmer, Jr., and New Center Realty Inc., a Michigan corporation, jointly and severally, Defendants-Appellees.

Docket No. 100737.

Court of Appeals of Michigan.

Submitted June 27, 1988.

Decided Sept. 20, 1988.

Released for Publication Nov. 10, 1988.

Richard A. Lenter, Southfield, for plaintiff-appellant.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. by Lamont E. Buffington and Rosalind Rochkind, Detroit, for defendants-appellees.

Before KELLY, P.J., and MAHER and WARSHAWSKY, ^* JJ.

PER CURIAM.

Plaintiff appeals as of right from the orders of the Wayne Circuit Court granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(8).The court's orders had the effect of dismissing plaintiff's damage claim for personal injuries she sustained after being criminally assaulted in a vacant building owned by defendantPollie Pinkins and managed by defendantsEugene Gilmore, Jr., and New Center Realty, Inc.We affirm.

On January 27, 1983, sometime between 8:00 and 9:00 a.m., plaintiff was approached by an unknown male while waiting at a bus stop in the City of Detroit.The man forced her, at gunpoint, across the street and eventually to the building in question where she was repeatedly raped, thrown down a stairwell, and shot four or five times.As a result of this assault, plaintiff was rendered a paraplegic and suffers extreme emotional distress.The building where this senseless tragedy occurred had been abandoned and was in a dilapidated condition.Entry was gained through an open doorway.

At the time of the offense, defendant Pinkins was out of the country, working as a teacher in Nigeria.Before leaving, she entered into a management agreement with defendant Gilmer who, plaintiff alleged, was an agent of defendant New Center Realty.Under the terms of the agreement, Gilmer was to lease the property to others and collect the rent therefrom.Plaintiff also alleged that Gilmer agreed to "care for and manage" the property.

Plaintiff commenced suit in the Wayne Circuit Court on March 16, 1984, initially naming only Pinkins as a defendant and alleging claims sounding in negligence and nuisance.Later, plaintiff filed an amended complaint, adding Gilmer and New Center Realty as defendants and averring that they"were negligent in managing of said property in that said property became open and dangerous, a haven for vandals and transients."

On April 9, 1987, Gilmer and New Center Realty submitted a motion for summary disposition pursuant to MCR 2.116(C)(8).A hearing was held on May 6, 1987, at which time Pinkins joined the other defendants' motion.

At the hearing, plaintiff conceded that this was not a nuisance claim but claimed that the management agreement, coupled with certain voluntary protective measures taken by Gilmer and New Center Realty, created a duty in defendants to secure the property so as not to harbor criminal activity.Defendants, on the other hand, argued that no "special relationship" existed with plaintiff which gave rise to a duty to protect her from the criminal acts of third persons.The trial court agreed with the defendants and granted their motion in separate orders dated May 6, 1987(as to Gilmer and New Center Realty), and May 15, 1987(as to Pinkins).It is from those orders that plaintiff brings this appeal as of right.

A motion for summary disposition brought under MCR 2.116(C)(8), failure to state a claim upon which relief can be granted, is tested by the pleadings alone and examines only the legal basis of the complaint.The factual allegations in the complaint must be accepted as true, together with any inferences which can reasonably be drawn therefrom.Unless the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery, the motion should be denied.Beaudin v. Michigan Bell Telephone Co, 157 Mich.App. 185, 187, 403 N.W.2d 76(1986).However, the mere statement of the pleader's conclusions, unsupported by allegations of fact upon which they may be based, will not suffice to state a cause of action.NuVision v. Dunscombe, 163 Mich.App. 674, 681, 415 N.W.2d 234(1988), lv. den.430 Mich. 875(1988).

The question of whether or not a defendant owes an actionable legal duty to a plaintiff is one of law for the courts to decide after assessing the competing policy considerations for and against recognizing the asserted duty.Friedman v. Dozorc, 412 Mich. 1, 22, 312 N.W.2d 585(1981);Moning v. Alfono, 400 Mich. 425, 436-438, 254 N.W.2d 759(1977)."Only if the law recognizes a duty to act with due care arising from the relationship of the parties does it subject the defendant to liability for negligent conduct."Friedman, supra, 412 Mich. at p 22, 312 N.W.2d 585.If a trial court determines that, as a matter of law, the defendant owed no duty to the plaintiff, summary disposition is properly granted in the former's favor under MCR 2.116(C)(8).Locklear v. Stinson, 161 Mich.App. 713, 716, 411 N.W.2d 834(1987).

As a general rule, a private person has no duty to protect another from a criminal attack by a third person in the absence of some special relationship or circumstance.SeeWilliams v. Cunningham Drug Stores, Inc, 429 Mich. 495, 418 N.W.2d 381(1988); Anno: Comment note--private person's duty and liability for failure to protect another against criminal attack by third person, 10 A.L.R.3d 619, Sec. 3.This rule is equally applicable to property owners who are being sued for the criminal attack of a third person committed on their property.Thomason v. Olive Branch Masonic Temple, 156 Mich.App. 736, 744-745, 401 N.W.2d 911(1986);62 Am Jur 2d, Premises Liability, Sec. 26, pp 257-258.But see, Sanford v. Detroit, 143 Mich.App. 194, 371 N.W.2d 904(1985).In determining whether there exists a "special relationship or circumstance," and thus a legal duty to act, the court must balance the societal interests involved, the severity of the risk, the burden upon the defendant, the likelihood of occurrence, and the relationship between the parties.SeeSierocki v. Hieber, 168 Mich.App. 429, 434, 425 N.W.2d 477(1988).Other factors which may give rise to a duty include the foreseeability of the criminal activity, the defendant's ability to comply with the proposed duty, the victim's inability to protect himself from the criminal activity, the costs of providing protection, and whether the plaintiff had bestowed some economic benefit on the defendant.See Anno: Private person's duty and liability, supra, Sec. 2, pp 624-625.¹

In the instant case, we find that plaintiff failed to allege sufficient facts in her complaint which would give rise to a duty in defendants to protect her against the criminal attack.It is undisputed that plaintiff does not enjoy a "special relationship" with defendants of the types generally recognized under Michigan law, e.g., landlord-tenant, Samson v. Saginaw Professional Bldg., Inc., 393 Mich. 393, 224 N.W.2d 843(1975), proprietor-patron, Williams, supra, andAskew v. Parry, 131 Mich.App. 276, 345 N.W.2d 686(1983), employer-employee, Blake v. Consolidated Rail Corp, 129 Mich.App. 535, 342 N.W.2d 599(1983), or residential invitor-invitee, Kroll v. Katz, 374 Mich. 364, 132 N.W.2d 27(1965).Plaintiff contends that a special relationship existed by virtue of the management agreement between Pinkins and Gilmer.There is no allegation, though, that defendants ever intended that she, or a class of persons to which she belongs, be considered a third party beneficiary of that agreement.See17 Am Jur 2d, Contracts, Sec. 304, pp 727-730.

Plaintiff did aver that Pinkins owed her a duty of care because she"knew or should have known that said building was dangerous due to the fact that the building...