Schuster v. Sallay

• Citation: 181 Mich.App. 558,450 N.W.2d 81
• Decision Date: 22 January 1990
• Docket Number: Docket No. 110468
• Parties: Paul M. SCHUSTER and Rosemary Schuster, Plaintiffs-Appellants, v. David SALLAY and Garb-Ko, Inc., a Michigan Corporation, d/b/a 7-11 Stores, Defendants-Appellees. 181 Mich.App. 558, 450 N.W.2d 81
• Court: Court of Appeal of Michigan (US)

Page 81

450 N.W.2d 81

Paul M. SCHUSTER and Rosemary Schuster, Plaintiffs-Appellants, v. David SALLAY and Garb-Ko, Inc., a Michigan Corporation, d/b/a 7-11 Stores, Defendants-Appellees.

Docket No. 110468.

181 Mich.App. 558, 450 N.W.2d 81

Court of Appeals of Michigan.

Submitted Aug. 10, 1989.

Decided Dec. 19, 1989.

Released for Publication Jan. 22, 1990.

[181 MICHAPP 559] Ronald J. Brewer, P.C. by Ronald J. Brewer, Clio, for plaintiffs-appellants.

Plunkett & Cooney, P.C. by Christine D. Oldani and Michael S. Bogren, Detroit, for defendants-appellees.

Before MURPHY, P.J., and NEFF and ALLEN, ^* JJ.

PER CURIAM.

Plaintiffs appeal as of right from an order of the trial court dismissing their complaint for failing to state a claim on which relief could be granted, MCR 2.116(C)(8). We reverse and remand for further proceedings.

The facts are not in dispute. In the early morning hours of August 6, 1984, plaintiff Paul Schuster, in the course of his employment, was delivering milk and other dairy products on his route in [181 MICHAPP 560] Flint, Michigan. He stopped to make a delivery at defendants' 7-11 Store at approximately 4:30 a.m. Schuster apparently was required to unload his milk truck in the darkened side lot area where he was obscured from the view of both store personnel and customers as well as from the view of passersby. Schuster was not permitted to unload his milk truck in the parking area in the front of the store. Moreover, Schuster was required to make his deliveries to defendants' store in the early morning darkness instead of later in the day, during daylight.

As Schuster unloaded containers of milk from the cargo box at the rear of his truck, an unknown assailant approached his truck, demanded money and, after taking Schuster's money, shot him in the upper abdomen. The assailant then fled into the darkness.

Plaintiffs filed a complaint alleging that defendants had reasons to believe and knew or should have known that there existed a high propensity for criminal activity in the area surrounding the store. Moreover, plaintiffs alleged that defendants were negligent in the following regards:

(a) Failure to exercise reasonable care to maintain the aforesaid store premises in a safe condition for Plaintiff Paul M. Schuster.

(b) Causing or permitting the parking lot lighting to be inadequate to safely light the area.

(c) Failure to maintain and provide security for the premises.

(d) Failure to maintain constant control and surveillance over the premises.

(e) Failure to keep the premises clear of unauthorized persons who were not guests of the facilities or users of the facilities located upon said premises.

(f) Requiring Plaintiff Paul M. Schuster to unload[181 MICHAPP 561] his milk truck in the darkened side lot area where he was obscured from the view of the store personnel and customers as well as from the view of passers-by.

(g) Refusing to allow Paul M. Schuster to unload his milk truck in the parking area in front of the store which was lighted and was visible to store personnel, customers and passers-by.

(h) Requiring Plaintiff Paul M. Schuster to make his deliveries to Defendants' store in the early morning darkness instead of later in the day in the daylight.

Defendants moved for summary disposition pursuant to MCR 2.116(C)(8), claiming that plaintiffs' complaint failed to state a claim upon which relief could be granted. Specifically, defendants argued that plaintiffs had failed to state any valid duty owed by defendants. The trial court in ruling in defendants' favor stated in pertinent part:

I can't find under the case cited by the defendant any duty that was breached by the defendant or defendants and so it appears to the Court that summary disposition under Marr against Yousif[ ¹] and Williams against Cunningham[ ²] should be granted and I'll ask Mr. Bogren to prepare an order for my signature.

Plaintiffs now appeal as of right.

A motion for summary disposition pursuant to MCR 2.116(C)(8) tests only the legal sufficienty of the pleadings. The court must accept as true all well-pled factual allegations as well as any conclusions which can reasonably be drawn therefrom. The court may grant the motion only when the claim, on the pleadings alone, is so clearly unenforceable[181 MICHAPP 562] as a matter of law that no factual development could possibly justify the right to recovery. Abel v. Eli Lilly & Co., 418 Mich. 311, 323, 343 N.W.2d 164 (1984), reh. den. 419 Mich. 1201 (1984), cert. den. sub nom. E.R. Squibb & Sons, Inc. v. Abel, 469 U.S. 833, 105 S.Ct. 123, 83 L.Ed.2d 65 (1984); Stewart v. Isbell, 155 Mich.App. 65, 74, 399 N.W.2d 440 (1986).

This Court in Schanz v. New Hampshire Ins. Co., 165 Mich.App. 395, 402, 418 N.W.2d 478 (1988), stated the following regarding a negligence claim:

A prima facie case of negligence requires proof of four elements: (1) a duty owed to plaintiff by defendant; (2) breach of the duty; (3) causation; and (4) damages. The primary element which is in issue here, that of "duty," has been defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct towards another. Whether the law will impose such an obligation depends upon the relationship between the actor and the injured person.

It is for the court to determine, as a matter of law, what characteristics must be present for a relationship to give rise to a duty. Thereafter, the jury determines whether the evidence establishes the elements of that relationship. [Citations omitted.]

The question of whether a duty exists is one for the court to decide. Moning v. Alfono, 400 Mich. 425, 436-437, 254 N.W.2d 759 (1977). Our Supreme Court in Moning explained:

"Duty" comprehends whether the defendant is under any obligation to the plaintiff to avoid negligent conduct; it does not include--where there is an obligation--the nature of the obligation: the general standard of care and the specific standard of care. [Id., at p. 437, 254 N.W.2d 759.]

[181 MICHAPP 563] The question of duty depends in part on "foreseeability--whether it is foreseeable that the actor's conduct may create a risk of harm to the victim, and whether the result of that conduct and intervening causes were foreseeable." Id., at p. 439, 254 N.W.2d 759.

The lower court relied on Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 418 N.W.2d 381 (1988), and Marr v. Yousif, 167 Mich.App. 358, 422 N.W.2d 4 (1988), in granting defendants' motion for summary disposition. However, those cases are distinguishable from the instant case and do not stand as authority for granting summary disposition in defendants' favor.

First, in Williams, the sole issue before the Court was whether a merchant's duty to exercise reasonable care includes providing armed, visible security guards to protect invitees from the criminal acts of third parties. Williams, supra, 429 Mich. at p. 500, 418 N.W.2d 381. The Court held that no such duty should be imposed:

The duty advanced by plaintiffs is essentially a duty to provide police protection. That duty, however, is vested in the government by constitution and statute. We agree with the Court of Appeals in this case that neither the Legislature nor the constitution has established a policy requiring that the responsibility to provide police protection be extended to commercial businesses.

* * * * * *

We conclude as a matter of law that the duty of reasonable care a merchant owes his invitees does not extend to providing armed, visible security guards to protect customers from the criminal acts of third parties. The merchant is not an insurer of the safety of his invitees, and for reasons of public policy he does not have the responsibility for providing police protection on his premises. [Williams, supra, at pp. 501-504, 418 N.W.2d 381.]

[181 MICHAPP 564] In this case, plaintiff alleged various duties on the...