Tame v. A L Damman Co.

• Decision Date: 27 July 1989
• Docket Number: Docket No. 108600
• Citation: 442 N.W.2d 679,177 Mich.App. 453
• Parties: George TAME, personal representative of the Estate of Joseph Tame, Deceased, Plaintiff-Appellant, v. A. L. DAMMAN COMPANY, Defendant-Appellee, and Guardian Protective Services, Inc., a Michigan corporation, Defendant. 177 Mich.App. 453, 442 N.W.2d 679
• Court: Court of Appeal of Michigan — District of US

Page 679

442 N.W.2d 679

George TAME, personal representative of the Estate of Joseph Tame, Deceased, Plaintiff-Appellant, v. A. L. DAMMAN COMPANY, Defendant-Appellee and Guardian Protective Services, Inc., a Michigan corporation Defendant.

Docket No. 108600.

177 Mich.App. 453, 442 N.W.2d 679

Court of Appeals of Michigan.

Submitted March 16, 1989.

Decided June 6, 1989.

Released for Publication July 27, 1989.

[177 MICHAPP 454] O'Reilly, Rancilio, Nitz, Andrews & Turnbull, P.C. by Kenneth L. Rancilio, Sterling Heights, for plaintiff-appellant.

Somers, Schwartz, Silver & Schwartz, P.C. by Joseph E. Grinnan and Patrick Burkett, Southfield, for A. L. Damman Co.

Before HOLBROOK, P.J., and MICHAEL J. KELLY and CAVANAGH, JJ.

CAVANAGH, Judge.

Plaintiff appeals as of right from a Wayne Circuit Court order granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(8) and (10) on plaintiff's claim for wrongful death. The circuit court reviewed the documentary evidence and found that defendant A. L. Damman Company owed no duty to protect plaintiff's decedent from the criminal acts of a third party. We affirm.

Joseph Tame died on April 5, 1985, at 4:10 p.m., as a result of a shotgun wound inflicted by an unknown assailant in the south parking lot of a Damman Hardware Store in the City of Detroit. Plaintiff George Tame brought this negligence action alleging that Damman, the business invitor, failed to maintain its premises in a safe condition, failed to take reasonable security measures, failed to warn of dangerous conditions existing on the premises and otherwise failed to act in a reasonable and prudent manner. Plaintiff alleged that Guardian Protective Services, Inc., breached its duty to take reasonable precautions to protect the decedent from foreseeable danger and unreasonable risks of harm. Guardian was under contract to provide Damman with one uniformed, unarmed guard outside its premises during business hours. [177 MICHAPP 455] At the time of the assault, a guard was stationed on the premises.

On appeal, plaintiff argues that the trial court erred in finding that Damman owed no duty of care to plaintiff's decedent. A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of a claim by the pleadings alone. Formall, Inc. v. Community National Bank of Pontiac, 166 Mich.App. 772, 777, 421 N.W.2d 289 (1988). The motion should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a recovery. Id. A motion under MCR 2.116(C)(10) tests whether there is factual support for a claim. The trial court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence. Dumas v. Auto Club Ins. Ass'n, 168 Mich.App. 619, 626, 425 N.W.2d 480 (1988). Giving the benefit of a doubt to the nonmovant, the court must determine whether a record might be developed which will leave open an issue upon which reasonable minds could differ. Id. Before judgment may be granted, the court must be satisfied that it is impossible for the claim to be supported by evidence at trial. Peterfish v. Frantz, 168 Mich.App. 43, 48-49, 424 N.W.2d 25 (1988).

In order to overcome summary disposition, plaintiff is required to show that defendant owed decedent a duty to insure his safety; otherwise no liability arises. See Madley v. The Evening News Ass'n, 167 Mich.App. 338, 341, 421 N.W.2d 682 (1988). 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. Id. Generally, there is no duty to protect another from the criminal acts of a third party in the absence of special circumstances. [177 MICHAPP 456] Id., at p.p. 341-342, 421 N.W.2d 682. In Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 418 N.W.2d 381 (1988), our Supreme Court held that a store owner's reasonable duty of care, owed to business invitees, does not extend to providing armed, visible security guards to protect customers from the criminal acts of third parties. Id., at p. 501, 418 N.W.2d 381. The Court stated that the merchant is not an insurer of the safety of it's invitees. Id., at p.p. 499-500, 418 N.W.2d 381. Since Williams, this Court has affirmed trial court dismissals of such claims against business proprietors. See Papadimas v. Mykonos Lounge, 176 Mich.App. 40, 439 N.W.2d 280 (1989); Holland v. Delaware McDonald's Corp., 171 Mich.App. 707, 430 N.W.2d 766 (1988); Horn v. Arco Petroleum Co., 170 Mich.App. 390, 427 N.W.2d 582 (1988); Marr v. Yousif, 167 Mich.App. 358, 422 N.W.2d 4 (1988).

Here, plaintiff seeks to distinguish Williams v. Cunningham Drug Stores, Inc. Plaintiff claims that Damman recognized a need for security and, by voluntarily assuming that duty, was required to exercise reasonable care in the discharge of that duty. Specifically, plaintiff claims Damman failed to properly supervise the guard by having him follow certain "posting orders." The posting orders required the guard to make "constant patrols of both the north and south parking lots ... to deter persons from stealing or vandalizing both customer and employee vehicles." At the time of the incident in the south parking lot, the guard was stationed and had remained in the north lot for thirty to forty minutes. The assailant's suspicious activity during the twenty minutes before the shooting was noticed by several patrons.

This Court has declined the invitation to impose a duty only on the merchant who has taken some action to deter criminal activity but who has failed to deter a particular criminal assault. In Jones v. [177 MICHAPP 457] Williams, 160 Mich.App. 681, 686, 408 N.W.2d 426 (1987), lv. den., 430 Mich. 867 (1988), while a security guard was posted inside defendant's restaurant, this Court held the owner had no duty to provide a security guard for the parking lot over which it had control. In Pagano v. Mesirow, 147 Mich.App. 51, 53-55, 383 N.W.2d 103 (1985), lv. den., 424 Mich. 895 (1986), this...