Wagner v. Regency Inn Corp.

• Decision Date: 17 December 1990
• Docket Number: 116217,Docket Nos. 116216
• Citation: 463 N.W.2d 450,186 Mich.App. 158
• Parties: Gail WAGNER, Plaintiff-Appellee and Cross-Appellee, v. REGENCY INN CORPORATION, a Michigan corporation, and Jetendra B. Patel, individually and d/b/a Regency Inn Corporation, Defendants, Cross-Plaintiffs, Appellees and Cross-Appellants. A.J. PATEL and Rashmi B. Desai, individually and d/b/a Regency Inn Corporation, Defendants-Appellees and Cross-Appellants, v. CONSOLIDEX CORPORATION, d/b/a Americar Rental Systems, Defendant, Cross-Defendant, Appellant and Cross-Appellee. Gail WAGNER, Plaintiff-Appellee, v. REGENCY INN CORPORATION, a Michigan corporation, and Jetendra B. Patel, individually and d/b/a Regency Inn Corporation, Defendants, Cross-Plaintiffs and Appellees. A.J. PATEL and Rashmi B. Desai, individually and d/b/a Regency Inn Corporation, Defendant-Appellee, v. CONSOLIDEX CORPORATION, d/b/a Americar Rental Systems, Defendant, Cross-Defendant and Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 450

463 N.W.2d 450

186 Mich.App. 158

Gail WAGNER, Plaintiff-Appellee and Cross-Appellee, v. REGENCY INN CORPORATION, a Michigan corporation, and Jetendra B. Patel, individually and d/b/a Regency

Inn Corporation, Defendants,

Cross-Plaintiffs, Appellees

and Cross-Appellants.

A.J. PATEL and Rashmi B. Desai, individually and d/b/a

Regency Inn Corporation, Defendants-Appellees and Cross-Appellants, v. CONSOLIDEX CORPORATION, d/b/a Americar Rental Systems,

Defendant, Cross-Defendant, Appellant and Cross-Appellee.

Gail WAGNER, Plaintiff-Appellee, v. REGENCY INN CORPORATION, a Michigan corporation, and Jetendra B. Patel, individually and d/b/a Regency

Inn Corporation, Defendants,

Cross-Plaintiffs and Appellees.

A.J. PATEL and Rashmi B. Desai, individually and d/b/a

Regency Inn Corporation, Defendant-Appellee, v. CONSOLIDEX CORPORATION, d/b/a Americar Rental Systems,

Defendant, Cross-Defendant and Appellant.

Docket Nos. 116216, 116217.

Court of Appeals of Michigan.

Submitted April 17, 1990.

Decided Nov. 5, 1990

Released for Publication Dec. 17, 1990.

Materna, Hires & Custer by Michael T. Materna and Fred A. Custer, Southfield, for plaintiff-appellee.

John F. Sopt, Bloomfield Hills, for Consolidex Corp.

Lizza & Mulcahy, P.C. by David M. Lawson and James H. Mulcahy, Detroit, for Regency Inn Corp.

Before DANHOF, C.J., and MURPHY and T.M. BURNS, ^* JJ.

MURPHY, Judge.

Defendant Consolidex Corporation, doing business as Americar Rental Systems, appeals by leave granted from the trial court's denial of its motion for summary disposition under MCR 2.116(C)(8) and (C)(10), on plaintiff's claims for nuisance per se and nuisance in fact. Americar also appeals from the trial court's grant of summary disposition in favor of defendant Regency Inn Corporation on its cross-claim against Americar for indemnification. Defendant Regency Inn cross appeals from the trial court's denial of summary disposition on plaintiff's nuisance claims. We affirm.

On October 25, 1985, plaintiff, a resident of the Grand Rapids area, traveled to Grosse Pointe to attend a garage sale. After deciding to purchase some furniture, plaintiff telephoned defendant Americar to arrange for a rental vehicle in order to move the furniture. Plaintiff was advised that the Americar office closest to the garage sale was at the Regency Inn situated off the Interstate 94 expressway on the corner of Harper and Conner in the City of Detroit.

Plaintiff drove to the Regency Inn and entered the hotel building lobby where defendant Americar was located. While plaintiff was standing at the counter arranging to rent a truck, two men came out of the hotel bar and stood behind plaintiff harassing her in a suggestive manner. The men then left the building, and plaintiff completed her rental transaction.

Shortly thereafter, plaintiff went out to the hotel parking lot to retrieve her checkbook from her car. As she walked toward her car, plaintiff heard the door of a van slam open. She turned around to see one of the men from the hotel lobby standing at the door of the van holding a shotgun. The other man grabbed plaintiff from behind and pushed her into the van. After the men shut the van door, they robbed and raped plaintiff. They then drove the van out of the parking lot and dropped plaintiff, only partially clothed, out onto the expressway. A passerby rescued plaintiff and took her to a hospital.

Defendant Americar, on appeal, and defendant Regency Inn, on cross appeal, contend that the trial court erroneously denied their motions for summary disposition under MCR 2.116(C)(8) and (C)(10). Defendants contend that plaintiff's nuisance claims cannot be maintained because her injuries were solely the direct and proximate result of intervening criminal acts of other parties. Defendants argue that plaintiff merely alleges a negligence claim under the guise of nuisance and conclude that they were entitled to judgment as a matter of law. Defendant's conclusion is based on our Supreme Court's holding that a merchant has no duty, in the exercise of reasonable care, to protect its customers from the criminal acts of third parties merely because their business is located in a high-crime area. Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 418 N.W.2d 381 (1988). See also Harkins v. Northwest Activity Center, Inc., 434 Mich. 896, 453 N.W.2d 677 (1990), and Papadimas v. Mykonos Lounge, 176 Mich.App. 40, 439 N.W.2d 280 (1989), and cases cited therein. We disagree.

A motion for summary disposition under MCR 2.116(C)(8), for failure to state a claim on which relief can be granted, tests only the legal sufficiency of the claim as stated in the pleadings. The motion should be denied unless the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Mills v. White Castle Systems, Inc., 167 Mich.App. 202, 205, 421 N.W.2d 631 (1988).

As defendants correctly note, our Supreme Court has stated that the duty of reasonable care owed by owners and occupiers of land to their invitees does not extend to conditions from which an unreasonable risk cannot be anticipated or to dangers so obvious and apparent that the invitee may be expected to discover them himself. Williams, supra, 429 Mich. at 500, 418 N.W.2d 381. Accordingly, a merchant's duty of reasonable care does not include providing armed, visible security guards to deter criminal acts by third parties. Id., at 500-504, 418 N.W.2d 381. Moreover, a landowner has no duty to anticipate the hazards arising from a defective condition on its premises, such as a hole in a fence, that could facilitate criminal acts by third parties. Harkins, supra. Nevertheless, we do not read these holdings to bar claims of nuisance under facts such as those of the present case. We perceive a valid distinction between limiting a landowner's duty to protect his invitees from third-party crime and imposing liability on a landowner for creating or allowing continuing patterns of criminal activity on his premises which endanger his invitees.

Williams and its progeny focus on whether the relationship between a landowner-invitor and an invitee gives rise to a duty on the part of the invitor for the benefit of the invitee. By contrast, under a nuisance theory, liability is based on a dangerous, offensive, or hazardous condition of the land or on activities of similar characteristics which are conducted on the land. Stevens v. Drekich, 178 Mich.App. 273, 277, 443 N.W.2d 401 (1989). A defendant held liable for the nuisance must have possession or control of the land. Id., at 278, 443 N.W.2d 401.

The essence of plaintiff's nuisance claims is that defendants, who owned or controlled the Regency Inn premises, intentionally or negligently created or allowed the existence of certain dangerous physical conditions and protracted criminal activities on their premises which combined to constitute a public nuisance. A public nuisance is an unreasonable interference with a right common to the general public. 4 Restatement Torts, 2d, Sec. 821B, p 87; Sanford v. Detroit, 143 Mich.App. 194, 199, 371 N.W.2d 904 (1985). The term "unreasonable interference" includes: (1) conduct that significantly interferes with public health, safety, peace, comfort, or convenience ; (2) conduct that is prescribed by law; (3) conduct of a continuing nature that produces a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect on public rights. Id., at 199-200, 371 N.W.2d 904.

The possessor of land upon which the third person conducts an activity that causes a nuisance is subject to liability if: (1) he knows or has reason to know that the activity is being conducted and that it causes or involves an unreasonable risk of causing the nuisance, and (2) he consents to the activity or fails to exercise reasonable care to prevent the nuisance. 4 Restatement Torts, 2d, Sec. 838, p 157.

A nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances. Eyde Bros. Development Co. v. Roscommon Co. Bd. of Rd. Comm'rs, 161 Mich.App. 654, 669, 411 N.W.2d 814 (1987).

By contrast, a nuisance in fact is a nuisance by reason of circumstances and surroundings. An act may be found to be a nuisance in fact when its natural tendency is to create danger and inflict injury on person or property. Eyde, supra, at 669, 411 N.W.2d 814. A negligent nuisance in fact is one that is created by the landowner's negligent acts, that is, a violation of some duty owed to the plaintiff which results in a nuisance. Buckeye Union Fire Ins. Co. v. Michigan, 383 Mich. 630, 178 N.W.2d 476 (1970); Young v. Groenendal, 10 Mich.App. 112, 159 N.W.2d 158 (1968). A nuisance in fact is intentional if the creator intends to bring about the conditions which are in fact found to be a nuisance. To establish intent, the plaintiff must show that when the defendant created or continued the condition causing the nuisance, he knew or must have known that the injury was substantially certain to follow, in other words, deliberate conduct. McCracken v. Redford Twp., 176 Mich.App. 365, 371, 439 N.W.2d 374 (1989); Sanford, supra, 143 Mich.App. at 199, 371 N.W.2d 904. We have reviewed counts I through III of plaintiff's complaint and conclude that when the factual allegations are accepted as true, along with any inferences which may be fairly drawn therefrom, plaintiff stated sufficient claims for nuisance per se and nuisance in fact, both negligent and intentional. Mills, supra, 167 Mich.App. at 205, 421 N.W.2d 631.

Moreover, after reviewing the documentary evidence on the record, we conclude that the trial court also correctly denied defendants' motions for summary disposition under MCR 2.116(C)(10), because plaintiff had sufficiently raised genuine issues of material fact. Deposition testimony by an employee of defendant Americar and the affidavit of a security guard employed at d...