YOUNG, C.J.
Our common law has long imposed the same duty of care on landlords and merchants to remedy physical defects in premises over which they exert control. This consistency is premised on the similar degree of control both landlords and merchants exercise over the premises. Where third parties commit criminal acts against tenants and invitees in these controlled areas, landlords and merchants share a similar, albeit lesser, degree of control because of the inherent unpredictability of criminal conduct. Such unpredictability requires the imposition of a duty concomitant with the decreased amount of control. In MacDonald v. PKT, Inc.,
In this case, because the plaintiff alleged that the landlord's agents were informed of an imminent threat of criminal conduct against him and the landlord failed to contact the police after such notice, we affirm the judgment of the Court of Appeals in part and remand to the Court of Appeals for further proceedings consistent with this opinion.
Evergreen Regency Townhomes, LTD (Evergreen) is located in Flint, Michigan, and is owned and operated by Radney Management & Investments, Inc. (Radney). In 2003, Radney entered into a contract with Hi-Tech Protection (Hi-Tech) to provide Evergreen with security personnel to patrol the premises.
On August 4, 2006, plaintiff, Devon Bailey, attended an outdoor social gathering in the common area of Evergreen's apartment complex, where Hi-Tech's security guards William Baker and Christopher Campbell were patrolling the premises in a golf cart. At one point during the social event, Evergreen resident Laura Green informed the security guards that defendant Steven Schaaf was brandishing a revolver and threatening to kill someone. The security guards did not respond. Sometime after Green informed the security guards of Schaaf's behavior, the security guards heard two gunshots. Schaaf had shot plaintiff twice in his back, rendering plaintiff a paraplegic.
Plaintiff filed a civil suit against Schaaf,
The Court of Appeals affirmed in part and reversed in part the trial court's order.
We granted defendants' application for leave to appeal and asked the parties to address
A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of the claim on the basis of the pleadings alone and the ruling is reviewed de novo.
It is a basic principle of negligence law that, as a general rule, "there is no duty that obligates one person to aid or protect another."
The law of torts has historically conditioned the special relationship on the control that a possessor of premises — whether landlord or merchant — exerts over the premises. As a result, the law of torts has treated landlords and merchants the same in the context of their duties to maintain the physical premises over which they exercise control. In the landlord-tenant context, Justice COOLEY'S seminal treatise on torts provides that, "[i]n case of office and apartment buildings the landlord must exercise due care to keep the halls, stairs, passageways, and like appurtenances reasonably safe for the tenants and their families and servants and for those who come to visit or transact business with them."
This state's common law has likewise historically recognized the congruence between a landlord's and a merchant's duties of care concerning the physical maintenance of premises over which they exercise control. This Court has consistently imposed on both landlords and merchants a duty of care to keep the premises within their control reasonably safe from physical hazard. In Butler v. Watson, a poorly attached post situated on the rear porch of a residential apartment building fell and struck a small child.
Thus, the landlord owed his tenants and their guests the duty to repair and make reasonably safe the porch upon which plaintiff was injured because it was a common area used by all the tenants and its control was reserved to the landlord.
Similarly, in Goodman v. Theatre Parking, Inc., a man exited his car in defendant's parking lot and stepped on a cinder, spraining his ankle.
Siegel v. Detroit City Ice & Fuel Co. provides strong common-law support for concluding that a landlord and merchant have coextensive duties to protect invitees and tenants from physical hazards on the premises.
Providing further support for this principle is our opinion in Lipsitz v. Schechter, which continued to recognize that a landlord owes a duty to its residential tenants and their invitees to keep areas under its control reasonably safe from physical hazards.
These cases illustrate the consistency of our treatment of landlords and merchants as it pertains to the physical maintenance of the areas over which they retain control. Whether someone who controls a premises is a landlord or a merchant, the element of control forms the basis of imposing a duty to invitees. As illustrated in Butler, where "the landlord not having let the common portion of the property to any one tenant, he has reserved the control thereof to himself."
Traditionally, the duty imposed on a landlord or merchant had been limited to protect tenants and other invitees from physical defects in the property over which they retained control, not to protect tenants and other invitees from the criminal acts of others in those controlled areas.
Similarly, in Samson v. Saginaw Professional Building, Inc., this Court applied the same theory of liability to a commercial landlord that leased office space to an outpatient mental health clinic but that had failed "to provide some security measures or warnings for the safety of its tenants and visitors...."
Because "`any legal standard must, in
In Scott v. Harper Recreation, Inc., this Court reiterated the proposition that a merchant "ordinarily has no obligation to provide security guards or to protect customers against crimes committed by third persons" and explained that this principle remains in force "even where a merchant voluntarily takes safety precautions,"
In sum, MacDonald clarified the scope of a merchant's limited duty regarding the criminal acts of third parties:
While this duty has remained in place for merchants since clarified in MacDonald, we have not explicitly articulated the scope of the duty with regard to residential or commercial landlords. We do so today.
In keeping with the traditional common-law understanding that landlords and merchants share a similar level of control over common areas that are open to their tenants and other invitees, and thus assume the same duty of reasonable care with regard to those common areas, we hold that a landlord's duty regarding criminal acts of third parties is limited to and coextensive with the duty articulated in MacDonald. Thus, a landlord has a duty to respond by reasonably expediting police involvement where it is given notice of a "specific situation occur[ring] on the premises that would cause a reasonable person to recognize a risk of imminent harm to an identifiable invitee."
We wish to make clear, however, that just as a landlord does not owe a duty of repair within a tenant's leasehold,
If and when a landlord's duty is triggered, a reasonable response by the landlord is required. Typically, whether an actor proceeded reasonably is a question for the fact-finder. But, just as in MacDonald
Plaintiff's amended complaint alleges that plaintiff was attending a barbeque in a "common outdoor area" at Evergreen's apartment complex, where his brother was a tenant. Plaintiff alleges that during the barbeque, Schaaf entered the premises with a handgun and made threats "to kill somebody." Further, it is alleged that Laura Green, a tenant, informed the security guards, who were approximately 30 feet away from Schaaf, that "Schaaf was a non-resident, wielding a gun, [and] making threats to shoot people." It is also alleged that Green "pointed at Schaaf, identifying him" to security guards Baker and Campbell. Importantly, plaintiff alleges that the security guards failed to "notif[y] any police authorities of Schaaf's dangerous presence," even though Schaaf was "plainly observable in the immediate vicinity."
We have no doubt that plaintiff alleges sufficient facts that, if accepted as true, justify imposing a duty on defendants to notify police of the ongoing situation that was taking place at Evergreen. As the Court of Appeals accurately explained, plaintiff alleges facts indicating "the extreme nature of the ongoing situation at Evergreen," which involved "the most deadly circumstance of all" in the common area of the apartment complex: "a man brandishing a gun — apparently in full view of two security guards — who threatened to fire, and ultimately did fire, that gun with near fatal consequences."
In line with our consistent historical treatment of merchants and landlords in the context of their duty with regard to hazards in areas under their control, we apply the MacDonald framework to situations involving the landlord-tenant special relationship and, thereby, render consistent our treatment of landlords' and merchants' duties when faced with imminent criminal action. Because the plaintiff alleged that defendant's hired security guards failed to contact the police when clearly on notice of an imminent risk to him, we affirm this part of the Court of Appeals judgment.
However, we remand this case to the Court of Appeals for its consideration of Evergreen's and Radney's vicarious liability issues under Al-Shimmari,
KELLY, J., and ZAHRA, McCORMACK, and VIVIANO, JJ., concurred with YOUNG, C.J.
McCORMACK, J. (concurring).
I agree with the majority's analysis and join its opinion without qualification. I write separately only to emphasize one point in the majority's fine opinion. It is sometimes useful for courts to emphasize that common sense, as well as precedent, recommends a particular course of action.
The majority rightly shows how this Court's past precedent establishes that plaintiff states a valid claim against defendants. The principles of MacDonald v. PKT, Inc.,
Landlords and tenants are bound by a voluntary market relationship, where money is exchanged for the promise of shelter. Here, defendants Evergreen and Radney hired security guards for a practical purpose
But the security guards' failure to alert law enforcement when notified of the possibility of imminent danger is a failure the law recognizes. It constitutes a violation of the defendants' duty because the resulting harm is foreseeable. Indeed, under the facts of this case, Hi-Tech's security guards are in the best position to reduce the risk of harm presented by Schaaf. In other words, the security guards were the cheapest cost-avoiders of the harms that Bailey suffered.
MICHAEL F. CAVANAGH, J. (concurring in part, dissenting in part).
At issue in this case is whether an apartment complex landlord owes a duty to its tenants and invitees to respond to an imminent threat of a third party's criminal act in the common area of the premises by calling the police. Specifically, we must decide whether MacDonald v. PKT, Inc., 464 Mich. 322, 628 N.W.2d 33 (2001), applies to landlords. To the extent that the majority holds that landlords owe their tenants and invitees the duty established by a majority of this Court in MacDonald, I agree. However, I respectfully disagree with the majority's analysis, and its decision to limit the holding of Samson v. Saginaw Prof. Bldg., Inc., 393 Mich. 393, 409, 224 N.W.2d 843 (1975). In my judgment, the majority fails to sufficiently analyze the nature of the relationship between a landlord and the landlord's tenants and invitees, where that relationship defines the nature of a landlord's duty.
Generally, the law may recognize a tort duty where "the relationship between the actor and the injured person gives rise to [a] legal obligation on the actor's part for the benefit of the injured person." Moning v. Alfono, 400 Mich. 425, 438-439, 254 N.W.2d 759 (1977). In determining whether there is a legal obligation on the part of the actor that the law will recognize, often the question of duty will turn on a number of different factors, "including foreseeability of the harm, degree of certainty of injury, closeness of connection between the conduct and injury, moral blame attached to the conduct, policy of preventing future harm, and ... the burdens and consequences of imposing a duty and the resulting liability for breach." Valcaniant v. Detroit Edison Co., 470 Mich. 82,
As we stated in Williams, the duty to protect may impose liability from passive inaction, or nonfeasance, and "[t]he common law has been slow in recognizing liability for nonfeasance because the courts are reluctant to force persons to help one another and because such conduct does not create a new risk of harm to a potential plaintiff." Williams, 429 Mich. at 498, 418 N.W.2d 381. However, Williams further explained that "[s]ocial policy ... has led the courts to recognize an exception to [the general rule that there is no duty to protect another] where a special relationship exists between a plaintiff and a defendant." Id. at 499, 418 N.W.2d 381. This Court has also held that "[d]uty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." Buczkowski v. McKay, 441 Mich. 96, 100-101, 490 N.W.2d 330 (1992) (quotation marks omitted), quoting Prosser & Keeton, Torts (5th ed.), § 53, p. 358.
Despite the common law's reluctance to impose a duty to protect another, Williams noted that, in the past, the duty
It is true that "Michigan courts recognize a duty of care that arises solely from the possession of land...." Kessler v. Visteon Corp., 448 F.3d 326, 331 (C.A.6, 2006); see also Bertrand v. Alan Ford, Inc., 449 Mich. 606, 609, 537 N.W.2d 185 (1995) ("Essentially, social policy imposes on possessors of land a legal duty to protect their invitees on the basis of the special relationship that exists between them."). In fact, Williams explained that "[o]wners and occupiers of land are in a special relationship with their invitees and compromise the largest group upon whom an affirmative duty to protect is imposed." Williams, 429 Mich. at 499, 418 N.W.2d 381. Williams supported that assertion by explaining that landlords may be held liable for an unreasonable risk of harm caused by a dangerous condition of the land in the common areas of the premises, and merchants also have a duty to reasonably maintain the physical structures on their premises. Id. at 499-500, 418 N.W.2d 381, citing 2 Restatement Torts, 2d, §§ 343, 360, and Johnston v. Harris, 387 Mich. 569, 198 N.W.2d 409 (1972). Plaintiff, on the other hand, asserts that defendant landlords owed him a duty to protect against imminent third-party criminal conduct that was not the result of or facilitated by the landlord's failure to maintain the physical premises. Specifically, the duty that plaintiff seeks to impose on defendant landlords in this case is identical to the duty that a majority of this Court imposed on the defendant merchant in MacDonald.
Before Williams was decided, Samson recognized that a special relationship exists between a landlord and its tenants.
However, Samson's basis for upholding the landlord's duty is arguably unclear. Justice MARKMAN argues that Samson is distinguishable because it involved a commercial landlord, not a residential landlord, and Samson cited to § 314A(3) of the Restatement, which addresses premises owners who hold their land open to the public. Samson, 393 Mich. at 407, 224 N.W.2d 843. Also, commentators have surmised that the duty imposed in Samson may be characterized as arising out of the defendant's act of leasing the premises to a potentially dangerous tenant. Dobbs, The Law of Torts, § 325, p. 880 n. 5 (citing Samson and explaining that some jurisdictions impose
I would hold that landlords share a special relationship with their tenants and invitees, which implicates a landlord's duty to protect against the conduct of third parties that poses an imminent and foreseeable risk of harm within the common areas of the premises. Specifically, I would hold that the minimal duty that MacDonald imposed on merchants applies to landlords on the basis of the landlord-tenant relationship.
Historically, the general rule against imposing liability on a person for failing to protect another may have precluded the existence of a landlord's duty to protect in light of the original nature of leaseholds. See Trentacost v. Brussel, 82 N.J. 214, 225, 412 A.2d 436 (1980) ("Leases acquired the character of conveyances of real property when their primary function was to govern the relationship between landowners and farmers. Unlike the original, medieval tenant, the modern apartment dweller rents not for profit but for shelter."). Also, § 314A of the Restatement, which establishes a non-exhaustive list of special relationships that may serve the basis for the imposition of the duty to protect another, expressly includes the relationships between a merchant, or one who holds his land open to the public, and his invitees, and an innkeeper and his guests but is silent on the relationship between a landlord and tenant. 2 Restatement Torts, 2d., § 344(2), (3), and comment b, p. 118.
However, in my judgment, the modern landlord-tenant relationship shares characteristics of both an innkeeper and a premises owner who holds his land open to the public. Landlords, particularly those of larger multi-complex properties, are analogous to innkeepers as to the common areas of the premises because of the reasonable expectation that landlords will provide some degree of supervision and control over the activities occurring within the common areas. See Kline v. 1500 Mass. Avenue Apartment Corp., 439 F.2d 477, 482 (C.A.D.C., 1970) (comparing a modern landlord to an innkeeper and noting that liability in the innkeeper-guest relationship may be based on the "innkeeper's supervision, care, or control of the premises"), and id. at 481 ("The landlord is no insurer of his tenants' safety, but he certainly is no bystander."). Further, both residential and commercial landlords open their land for their own pecuniary benefit, similar to a merchant's use of its land. Moreover, while the common areas of a residential landlord's premises may be restricted as to who may enter the land comparative to the public areas of a merchant's premises, that restriction is minimal considering that any tenant may bring third parties within the common areas of the property. Because landlords share a special relationship with their tenants and invitees, just as merchants share with their invitees, I would
Notably, applying MacDonald to the landlord-tenant context does not contravene the central holding in Williams — that a premises proprietor does not have a duty to essentially provide police protection. Williams, 429 Mich. at 501-503, 418 N.W.2d 381. In Williams, we considered the question "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." Id. at 500, 418 N.W.2d 381. The plaintiff in Williams argued that because the defendant drug store owner had not provided a security guard, as it had routinely done in the past, the defendant had breached its duty of care by not intercepting the armed robbery that occurred at the store and resulted in the plaintiff's injuries. Id. at 497, 418 N.W.2d 381. Williams held that a merchant does not have a duty to provide visible guards as a crime deterrent because that duty would amount to a duty to provide police protection. Id. at 501, 418 N.W.2d 381. Williams reasoned that a merchant is not the "insurer of the safety of his invitees" and "cannot control the incidence of crime in the community." Id. at 502, 418 N.W.2d 381.
As MacDonald recognized, "[m]erchants do not have effective control over situations involving spontaneous and sudden incidents of criminal activity." MacDonald, 464 Mich. at 337, 628 N.W.2d 33 (emphasis added). However, when the facts of the case illustrate that the premises' proprietor has notice of a foreseeable risk to an identifiable tenant or invitee, the criminal activity is no longer random, as contemplated by Williams. See Williams, 429 Mich. at 501 n. 15, 418 N.W.2d 381 (explaining that the facts of Williams did not compel an application of a merchant's duty to protect its invitees against physical harm caused by the intentional acts of third parties under 2 Restatement Torts, 2d., § 344, pp. 223-224). Thus, applying MacDonald to defendants as landlords is consistent with Williams's holding, which declined to impose a general duty on a merchant to place security on the premises in the first instance to protect its invitees against any crime that may occur in the community. See also Mills v. White Castle Sys., Inc., 167 Mich.App. 202, 208, 421 N.W.2d 631 (1988) (holding that Williams's policy rationale did not preclude the plaintiff's negligence claim because the plaintiff argued that the defendant merchant should have summoned the police, not that the defendant should have provided police protection).
Additionally, assuming that Scott, 444 Mich. 441, 506 N.W.2d 857, is applicable in this case, applying MacDonald to the landlord-tenant context does not conflict with the underlying principles of Scott. The Scott plaintiff alleged that the defendant merchant voluntarily assumed the duty to protect the plaintiff against the criminal acts of a third party by advertising that that lot was "lighted" and "guarded" and that the defendant breached that duty by failing to provide adequate security, which resulted in the plaintiff's injuries from a criminal attack. Id. at 449, 506 N.W.2d 857. Scott held that "[s]uit may not be maintained on the theory that the safety measures are less effective than they could or should have been," reasoning that "`[s]uch a policy would penalize merchants who provide some measure of protection, as opposed to merchants who take no measures.'" Id. at 452, 506 N.W.2d 857, quoting Tame v. A L Damman Co., 177 Mich.App. 453, 457, 442 N.W.2d 679 (1989). Scott also "reject[ed] the notion that a merchant who makes property visibly safer has thereby `increased the risk of harm'
However, in this case, defendants' voluntary decision to employ security guards is not the basis for the imposition of the landlords' duty. Rather, the placement of the security guards on the premises simply serves as the means by which defendants acquired notice of Schaaf's impending criminal behavior. Indeed, if it is determined that defendants are vicariously liable for the security guards' inaction, it would be as if the defendants themselves were called on to notify the police of Schaaf's conduct.
I would hold that MacDonald applies to the landlord-tenant context, which simply required defendant-landlords to call the police if they were aware of an ongoing situation that posed an imminent risk of harm to defendants' tenants and invitees. To justify the imposition of that duty, I think that the nature of the landlord-tenant relationship must be analyzed because it is the critical factor to be considered when imposing a duty to protect another. Further, in my view, our caselaw regarding a merchant's duty to protect its invitees from the conduct of a third party has either been silent or expressly declined to opine as to whether a landlord has a similar duty to protect its tenants and invitees. Thus, while I agree with the majority to the extent that it holds that MacDonald applies to defendants in this case, I respectfully disagree with the majority's approach to this case.
MARKMAN, J. (dissenting).
In MacDonald v. PKT Inc., 464 Mich. 322, 628 N.W.2d 33 (2001), this Court held that a merchant has a common-law duty under limited circumstances to "aid or protect" a patron or invitee from third-party criminal conduct. At issue in the instant case is whether this Court should now alter the common law and impose a similar legal duty on a residential landlord to "aid or protect" tenants and their social guests from third-party criminal conduct. Because longstanding common-law rules should not be altered absent compelling reasons for such alteration, and because the majority opinion has provided no such reasons in this case, I would continue to
This Court has created exceptions to our common-law rule and thereby imposed legal accountability on someone other than the criminal perpetrator only in exceptional circumstances where there is some "special relationship" in which one person can fairly be said to have entrusted himself to the control and protection of another with a consequent loss of control to protect himself. But the majority opinion has not offered any persuasive argument that either tenants or their social guests bear the same "special relationship" to a residential landlord as an invitee or a patron does to a merchant, or that there is any similar entrustment of control to the landlord and consequent loss of control by tenants or their social guests to protect themselves against third-party criminal conduct. For these reasons, I respectfully dissent.
The common law develops through judicial decisions. Placek v. City of Sterling Hts., 405 Mich. 638, 657, 275 N.W.2d 511 (1979). Thus, it has been described as "judge-made-law." Id. In particular, "[t]he law of negligence was created by common-law judges and, therefore, it is unavoidably the Court's responsibility to continue to develop or limit the development of that body of law absent legislative directive." Moning v. Alfono, 400 Mich. 425, 436, 254 N.W.2d 759 (1977). As this Court explained in Bugbee v. Fowle, the common law "`is but the accumulated expressions of the various judicial tribunals in their efforts to ascertain what is right and just between individuals in respect to private disputes.'" Bugbee v. Fowle, 277 Mich. 485, 492, 269 N.W. 570 (1936), quoting Kansas v. Colorado, 206 U.S. 46, 97, 27 S.Ct. 655, 51 L.Ed. 956 (1907).
By its nature, the common law is not static; it adapts to changing circumstances. Price v. High Pointe Oil Co., Inc., 493 Mich. 238, 242, 828 N.W.2d 660 (2013). "The common law is always a work in progress and typically develops incrementally, i.e., gradually evolving as individuals disputes are decided and existing common-law rules are considered and sometimes adapted to current needs in light of changing times and circumstances." Id. at 243, 828 N.W.2d 660. As this Court stated in Beech Grove Investment Co. v. Civil Rights Comm.:
Nevertheless, although the common law evolves, "alteration of the common law should be approached cautiously with the fullest consideration of public policy and should not occur through sudden departure from longstanding legal rules." Price, 493 Mich. at 259, 828 N.W.2d 660. "[W]hen it comes to alteration of the common law, the traditional rule must prevail absent compelling reasons for change. This approach ensures continuity and stability in the law." Id. at 260, 828 N.W.2d 660 (emphasis added). Thus, because it is altering the common law, the majority bears the heavy burden to provide compelling reasons for its alteration and extension of the common law. In my judgment, the majority presents no compelling reasons to justify its alteration of the common law. Indeed, as set forth below, a number of persuasive reasons counsel against such a change. I would therefore continue to adhere to our present common-law rule, one that has endured from the outset of Michigan's statehood and that faithfully reflects what has always previously been recognized as the "`accumulated expressions of the various judicial tribunals in their efforts to ascertain what is right and just between individuals in respect to private disputes[.]'" Bugbee, 277 Mich. at 492, 269 N.W. 570, quoting Kansas, 206 U.S. at 97, 27 S.Ct. 655.
To state a cause of action for recovery under a negligence theory, certain elements must be present. These elements are: (1) that defendant owed the plaintiff a legal duty; (2) the defendant breached that legal duty; (3) that plaintiff suffered damages; and (4) that defendant's breach constituted a proximate cause of the plaintiff's damages. Hill v. Sears, Roebuck & Co., 492 Mich. 651, 660, 822 N.W.2d 190 (2012). If any element is absent, a defendant is entitled to summary disposition.
The specific issue in this case concerns duty. In the absence of any relevant statute, the question of whether a legal duty exists in a given type of relationship is a question answered by the common law.
The general common-law rule is that a person has no legal duty to aid or protect another from harm, especially where, as here, such harm is caused by third-party criminal conduct. Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 498-499, 418 N.W.2d 381 (1988). Rather, the criminal perpetrator himself is exclusively responsible for such conduct and for the harm caused.
Nonetheless, we have imposed a legal duty to affirmatively aid or protect another from harm in exceptional situations in which there is some special relationship. The justification for these exceptions is that in such a special relationship, one person has entrusted himself to the control and protection of another person, with a consequent loss of control to protect himself:
As the majority and concurring opinions recognize, Williams sets forth what has always comprised our common-law general rule concerning the duty to aid or protect another, Williams, 429 Mich. at 498-499,
As the majority and concurring opinions also recognize, our common law has long recognized that a special relationship exists between "[o]wners and occupiers of land," Williams, 429 Mich. at 499, 418 N.W.2d 381, and those who come onto the land. Accordingly, our common law imposes particular duties on the landowner that reflect the precise nature, and are a function, of this special relationship. That is, the duty imposed is tailored to the specific manner in which the person coming onto the land has entrusted himself to the control and protection of the landowner, and has consequently lost some aspect of his ability to protect himself.
The precise duty the landowner owes depends on the exact status of the other person on the land. Hoffner, 492 Mich. at 460 n. 8, 821 N.W.2d 88. There are "three common-law categories for persons who enter upon the land or premises of another: (1) trespasser, (2) licensee, or (3) invitee." Stitt v. Holland Abundant Life Fellowship, 462 Mich. 591, 596, 614 N.W.2d 88 (2000).
The landowner owes the following duty to licensees:
And finally, "[t]he landowner owes no duty to the trespasser except to refrain from injuring him by `wilful and wanton' misconduct." Id.
I agree with the majority that "the law of torts has treated landlords and merchants the same in the context of their [legal] duties to maintain the physical premises over which they exercise control." Ante at 419. It is correct that neither the "landlord" nor the "merchant" has ever been excepted from these duties. The legal duties to protect visitors from physical defects that apply generally to property-owners apply notwithstanding whether the person who owns the property happens to be a "merchant" or a "landlord." Indeed, I am unaware of any class of persons excepted by our common law from these legal duties in connection with their properties.
Drawn solely from this fact, i.e., that a merchant and landlord share a common legal duty to remedy physical defects, the majority undertakes the leap in logic that the particular duty this Court has imposed on a merchant concerning third-party criminal conduct should identically be imposed on a landlord. Ante at 427 ("In line with our consistent historical treatment of merchants and landlords in the context of their duty with regard to hazards in areas under their control, we apply the MacDonald framework to [landlords]...."). I respectfully disagree with such analysis because I do not see how this unremarkable and irrelevant historical "consistency" can have any logical bearing on the instant case. This "duty with regard to hazards in areas under their control" is universally applied to landowners, with all landowners being treated "consistently" in this regard. However, the fact that our common law has imposed this general and well-established duty regarding physical defects in property on both merchants and landlords tells us nothing about whether merchants and landlords should be treated equivalently when it comes to third-party criminal conduct. The absence of even a perfunctory analysis in this regard overlooks that the body of law that has developed concerning physical defects in property, which of course encompasses equally the property of a merchant-landowner and a landlord-landowner, has no obvious relevance in a case that concerns liability for third-party criminal conduct.
Again, the general common-law rule is that a person has no legal duty to aid or protect another from third-party criminal conduct and cannot be held liable for failing to render aid or protection. Rather, the criminal perpetrator himself is exclusively responsible for such conduct and for the harm caused.
Traditionally, courts have held that a merchant has no duty to aid or protect invitees from criminal conduct. The merchant simply had the common-law duties related to physical defects on the merchant's premises. Rather, the criminal perpetrator himself was exclusively responsible for his criminal conduct and for the harm caused.
However, as the majority correctly notes, in a line of cases beginning with Manuel v. Weitzman, 386 Mich. 157, 191 N.W.2d 474 (1971), overruled in part on other grounds Brewer v. Payless Stations, Inc., 412 Mich. 673, 316 N.W.2d 702 (1982), this Court began to gradually erode the general common-law rule by imposing new duties to aid or protect upon "merchants" and by holding such merchants liable for an increasing array of harms caused by third-party criminal conduct. Manuel was a common-law negligence case in which a patron sued a "tavern keeper" for the injuries sustained when assaulted by another patron. This Court proceeded for the first time to expand the traditional scope of common law premises liability for tavern-keeper merchants from a "duty to repair physical defects" to a "duty to protect patrons from third-party criminal conduct." Id. at 164, 191 N.W.2d 474. From
This duty to aid or protect applies to merchants: "A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose...." 2 Restatement Torts, 2d., § 344, pp. 223-224 (emphasis added).
As discussed below, the body of common law that developed for a possessor of land who holds it open to the public for entry is inapplicable to a possessor of land who does not open his land to the public for similar entry. Indeed, in Scott and Williams this Court expressly stated that its decision did not apply with regard to "the application, in the area of landlord-tenant law, of the principles discussed." Scott, 444 Mich. at 452 n. 15, 506 N.W.2d 857; see Williams, 429 Mich. at 502 n. 17, 418 N.W.2d 381. The majority opinion provides no convincing explanation as to why a common area that is not open to the public should be treated in the identical fashion as a merchant's property that is open to the public.
Similarly, and in accordance with the general common-law rule, courts have historically held that a landlord has no duty to aid or protect tenants or their social guests from criminal conduct. In its analysis, the majority relies on Samson v. Saginaw Prof. Bldg., Inc., 393 Mich. 393, 224 N.W.2d 843 (1975) as the (sole) basis of support for its conclusion that this Court has "expanded" our traditional common-law rule regarding the duty imposed on a landlord such that a landlord can be held liable for the third-party criminal conduct that occurred in this case. Ante at 422 ("[T]his Court expanded the duty of both landlords and merchants to protect their tenants and invitees from those criminal
Because the majority never explains what it believes to be the theory of liability in Manuel, it is unclear what exactly it believes to be the "theory of liability" this Court applied in Samson.
In Samson, a clinic that treated mental-health patients, including those from the Ionia State Prison, leased space on the fourth floor of a commercial office building from the defendant, the owner of the building. Tenants in the building told the defendant's representatives that they were afraid of the clinic's patients, who had to use the stairs and elevators to reach the clinic, but the defendant took no action. The plaintiff, a secretary employed by a lawyer who leased an office on the fifth floor, was attacked by one of the clinic's patients in an elevator while on her way to a coffee shop located on the first floor. The plaintiff claimed that the defendant was negligent by failing to take appropriate actions to ensure that the common area of the building were reasonably safe, and the jury awarded damages. The Court of Appeals affirmed. On appeal, this Court held that it was the responsibility of the defendant to ensure that the common area of the building were reasonably safe, and that a jury question had been presented as to whether the defendant's failure to undertake precautionary security measures in relation to the clinic constituted a breach of its legal duty to aid or protect the plaintiff.
Regarding the special relationship that provided the source of the defendant's duty, this Court explained:
As can be seen from the above quotation, this Court made it clear that its decision was based on 2 Restatement Torts, 2d., § 314A(3), p. 118, which provides:
As subsection (3) makes clear, the duty imposed on the owner of the commercial office building to aid or protect the attorney's secretary was not based on the owner being a "landlord" and leasing office space to commercial tenants, one of whom employed the plaintiff. Indeed, a "landlord-tenant" relationship could not have been the source of the defendant's legal duty to aid or protect the plaintiff because the plaintiff and the defendant did not even have a "landlord-tenant" relationship.
However, what is most obvious and pertinent about the Samson analysis is that the special relationship, and attendant legal duty to aid or protect, was a function of the defendant holding his land open to the public.
In contrast, and particularly relevant to this case, the common area of a residential apartment building is not open to the public, nor is the general public invited to gather there. Whether a residential common area lies within an expansive apartment complex or within a large house converted into apartments, the world is not invited into these areas. Rather, the common area of an apartment building is simply not a place of public use or gathering from which a landlord, in the same manner as a merchant or mall owner, profits from the presence of the very public that has been invited onto his property, and therefore must in fairness share in the legal risks to which public invitation may give rise. The common area of a residential apartment is by its nature private and open only to those persons invited onto the property. It is to all significant purposes the equivalent of a home, in which residents are generally responsible for their own protection from third-party criminal conduct. Absent some compelling explanation as to how the differences between a home and an apartment impose on residents of the latter some real diminution in the ability to protect oneself from such conduct, the legal duty to aid or protect that this Court recognized in very different circumstances in Samson on the basis of Restatement, § 314A(3) is inapplicable to this case, and there is no other decision of this Court that stands for the same proposition that the majority opinion erroneously attributes to Samson.
The majority fails to account for this Court's specific citation in Samson to Restatement, 2d., § 314A(3). By failing to recognize that the legal duty at issue in Samson was predicated on the special relationship set forth in § 314A(3), the majority is left free to determine at its own discretion that the legal duty there was predicated on some other special relationship. In other words, by not giving consideration to the exclusive reliance in Samson placed on Restatement, § 314A(3), the majority is able to characterize the special relationship in Samson as it sees fit and to assert that the legal duty identified in that case was imposed on the basis of that special relationship, rather than on the basis of the special relationship that, in fact, was expressly at the heart of Samson and that was grounded on Restatement, § 314A(3). Although in this case, the majority deems that a "landlord-tenant" relationship constituted the source of the legal duty to aid or protect imposed in Samson, in the next case it could just as easily identify such legal duty as reposing in a "building owner-elevator rider" special relationship, or a "building owner-lawyer's secretary" special relationship, as the source of a defendant's legal duty to aid and protect. Whatever check or constraint can reasonably be derived from Restatement, § 314A(3) on the scope that there is no legal duty to aid or protect another from the criminal conduct of third parties has been eroded by the free-form analysis of the majority opinion.
Given that Samson is inapplicable, the majority opinion lacks support for its assertion that the landlord here had a common-law duty to aid or protect a tenant's social guest from third-party criminal conduct under the existing common law.
After firstly concluding erroneously that defendants are subject under our common law to Samson, the majority then, secondly, proceeds to transform the Samson duty as a function of "clarifying" it, and then, thirdly, it effectively overrules Samson by "limiting" it. The majority states that although Samson "implied some duty for a landlord ... to take prophylactic measures to prevent third parties' criminal acts before they are imminent, it did not specifically articulate the measures that a landlord ... must take to obviate the hazard of third parties' criminal acts." Ante at 422. The majority states that the "implied" duty in Samson was "amorphous," ante at 422, and then "clarifie[s] ... the scope of the [Samson] duty," ante at 423, by imposing onto a landlord the entire body of common law that developed as to a merchant's liability for third-party criminal conduct. See ante at 425 ("the duty clarified today").
This "clarified" duty imposed from the line of common-law decisions concerning a merchant's liability for third-party criminal conduct has no bearing on the question of what duty, if any, should be imposed on the landlord, at least absent compelling justification. Indeed, the majority adopts this merchant's duty despite the fact that the landlord in this case bears little resemblance to a merchant, and despite the fact our common law has in no way treated a merchant and a landlord in an equivalent fashion when it comes to third-party criminal conduct. Even if one were to overlook that in this case there is no duty to be
Moreover, although the majority acknowledges that we have imposed a legal duty to affirmatively aid or protect only in exceptional circumstances in which there is some special relationship, it fails to explain how this test has been met here and how the "now-clarified" duty it imposes is designed to mitigate against the consequences of the particular entrustment and consequent loss of control that exists under these parties' special relationship. Before legal responsibility and accountability for third-party criminal conduct is apportioned and extended beyond the actual criminal perpetrator himself, this Court is obligated under its own "control and protect" standard to show clearly how: (a) a person can fairly be said to have entrusted himself to the control and protection of another; (b) such entrustment was reasonable; and (c) as a result of such entrustment, there has been a consequent loss of control by that person to protect himself. The majority opinion not only does none of these things before redefining the common-law legal duties in this case, but it also fails to answer what is invariably the ultimate and practical inquiry in a case in which the common law is to be altered — what has changed in our society, what has evolved in our customs and practices and values, what is different as to our expectations in terms of the law, that justifies imposition of a legal duty in 2013 on landlords to aid or protect tenants given that there has been no such legal duty in the past 176 years of Michigan's common law?
I have no doubt that this Court possesses the legal authority to undertake today's decision, and I can understand how reasonable people can differ from my own viewpoint as to the wisdom of the majority's course of action, but this Court today undertakes something that is significant and consequential when it redefines the legal consequences of criminal conduct
Although I certainly agree with the majority that a landlord has a substantially higher degree of control over the physical structures and architecture of the common area, I fail to follow how that higher degree of control, which is already accounted for by the duties imposed under traditional common-law premises liability principles, has any bearing on whether tenants or their social guests have entrusted themselves to the "control and protection" of the landlord and, in so doing, have diminished or compromised their own ability to protect themselves against third-party criminal conduct. According to the majority opinion, "as a matter of law, the duty to respond requires only that a landlord make reasonable efforts to expedite police involvement." Ante at 425-26. Making reasonable efforts to expedite police involvement is apparently all that is required by the majority's rule. Per the majority, the landlord is not required to modify or repair the common area in any way that makes criminal conduct less likely, he is not required to take control of these areas and actively root out criminal conduct that may be occurring or that is imminent, and he is not required to institute surveillance or any other particular security precaution. If he were required to do any of these things, I might agree with the majority opinion that the landlord would be in the better, if still not exclusive, position to undertake these measures as a function of his control over the common area. But by the majority's holding, the landlord is not obligated to do such things, because that is not what the MacDonald legal duty requires. Indeed, the landlord is not even required to make himself available to tenants so that he may become better aware that a third party's criminal conduct may be imminent. In light of the specific legal obligations, and nonobligations, imposed on the landlord via MacDonald, how precisely does the landlord's greater control over the common area place the landlord in a better position to "make reasonable efforts to expedite police involvement?" And how precisely does the landlord's greater control over the common area have any bearing whatsoever as to whether the landlord or tenants and their social guests are in a better position to undertake such efforts? Where a third-party criminal threat arises, and where the landlord becomes aware of that threat, what exactly is the relevance of the landlord's control over the common area of the property? How does this control assist the landlord, or hinder the tenant, in attempting to "expedite police involvement." The majority opinion does not say. To take into consideration only a single factor, would not the development of cellular-telephone technology over the past generation render tenants in 2013 even more capable of expediting such police involvement than tenants in 1983, 1903 or 1843?
Not only, I believe, has the majority opinion failed to present "compelling reasons" for altering the common law, but the status quo represents responsible and rational public policy, a consideration crucial to this Court's common-law decisionmaking. Indeed, extending the MacDonald duty advanced by the majority opinion is contrary to sound public policy, in my judgment, for several reasons.
Presence — First, to reemphasize a point made earlier, there is an important distinction between the merchant in MacDonald and the landlord in this case in that the merchant (or his employees and agents) almost always has to be physically present on the business premises to serve customers and otherwise conduct business. By contrast, the landlord (and his employees or agents) has no similar reason to be physically present. This is particularly true of landlords of more modest rental properties. Indeed, a landlord may have no reason at all to visit a common area of an apartment building for weeks or months on end, and even large rental properties may have their leasing and management offices off-site, far away from
As a result, imposing the MacDonald duty on landlords will almost certainly encourage at least some landlords to take greater care in avoiding the common area since it is their largely discretionary presence in such area that apparently constitutes the only means by which the landlord can gain the awareness of criminal conduct in the first place that would give rise to the MacDonald duty.
Disincentives — Second, imposing the MacDonald legal duty on landlords runs afoul of the policies underlying this Court's decision in Scott, in which this Court explicitly declined to adopt a policy that "would penalize merchants who provide some measure of protection, as opposed to merchants who take no such measures." Scott, 444 Mich. at 452, 506 N.W.2d 857 (quotation marks and citation omitted). Because only the landlords who provide security in the common area will face potential liability under MacDonald, the majority's new legal duty will penalize precisely those landlords who "provide some measure of protection." The landlords who do so will be held to a higher legal duty than those who do not, and those landlords who are the most compelled to undertake such protection as a result of high levels of criminal conduct within the neighborhoods in which their properties are located will be the hardest hit by potential lawsuits. Clearly in this case, the defendants' provision of security guards is the only thing that gives rise under the majority opinion to potential legal responsibility for third-party criminal conduct.
False Alarms — Third, imposing the MacDonald duty on landlords will result in a considerable increase of "false alarm"
Litigation — Fourth, imposing a new legal duty on landlords will give rise to more litigation. Concerning the specific legal duty to aid or protect, there will certainly be litigation concerning: (a) whether the landlord in a sufficiently timely manner recognized the arising of a "specific situation occurring on the premises that would cause a reasonable person to recognize a risk of imminent harm to an identifiable invitee[;]" (b) whether the landlord's efforts to expedite police involvement were reasonable; (c) whether the landlord informed the police of the specific situation in a sufficiently timely manner; (d) whether the landlord informed the police of the specific situation in a manner thoroughly describing its circumstances and communicating its urgency; (e) whether the landlord acted reasonably in his estimation of who constituted a potentially vulnerable "identifiable invitee;" (f) whether the landlord was sufficiently proactive in acquiring knowledge concerning the specific situation; (g) whether such security measures as were employed by the landlord, such as 24-hour surveillance videos, were thoroughly and conscientiously monitored; and (h) whether security guards employed by the landlord acted responsibly in all facets of their conduct. And, of course, inevitably over time, there will be the litigation to urge expansion of the MacDonald duty to contemplate security precautions the landlord should have undertaken that might have forestalled criminal conduct from occurring in the first place, requiring some evaluation of the probability of future criminal conduct on the basis of an analysis of past occurrences of such conduct within the relevant neighborhood. See MacDonald, 464 Mich. at 343-344, 628 N.W.2d 33 (discussing this "relatedness test"); id. at 351-352, 628 N.W.2d 33 (CAVANAGH, J., dissenting). Indeed, whereas MacDonald was the product of an evolution of merchant-liability cases occurring over the course of three decades, the majority's decision today, imposing for the first time the same legal duty on the landlord, may well represent merely the first stage in what will surely become a similar
Accountability — Finally, I simply do not believe that our common law is advanced when it is slowly, and step-by-step, transformed from a legal system grounded in traditional notions of personal responsibility, in which criminal perpetrators are fully and exclusively responsible for their own behavior, into a system in which "special relationships" are increasingly employed as vehicles by which to apportion to assorted classes of non-criminal actors-in this instance, a residential landlord-financial accountability for the consequences of criminal conduct.
The common-law analysis of the majority opinion is flawed, in my view, for the following reasons:
Furthermore, the majority opinion fails to satisfy its burden of demonstrating "compelling" reasons for why the common law that has always existed in this state should now be altered by further apportioning among those who have perpetrated no criminal conduct, legal accountability and responsibility for the harms caused by third parties who have perpetrated such conduct. Indeed, there are a number of compelling reasons in support of maintaining the present rule that there is no legal duty to aid or protect another from third-party criminal conduct unless a special relationship has been established in which a person can be said to have entrusted himself to the control and protection of another person with a consequent loss of control to protect himself. The majority has not offered any persuasive argument that either tenants or their social guests bear the same special relationship to a residential landlord as an invitee or a patron does to a merchant, or that there is any similar entrustment of control to the landlord, and consequent loss of control by tenants or their social guests to protect themselves against third-party criminal conduct. Accordingly, I would reverse the Court of Appeals and reinstate the trial court's judgment dismissing plaintiff's claim.
First, although Samson involved a commercial landlord, this Court made it clear that it was imposing a duty on the defendant not because he was a commercial landlord but because he held his land open to the public. Second, regarding the commentator's theory of Samson, this Court went out of its way to make it clear that this was not the basis for its decision, stating:
Even if we assume that some tenants or their social guests may "expect" the landlord to "provide some degree of supervision and control," no explanation is provided for why such an "expectation" is reasonable or would cause responsible persons to be diminished or compromised in their own ability to protect themselves. In fact, this Court has explicitly rejected liability on the basis of a person assertedly being "induced to relax his normal vigilance," Scott, 444 Mich. at 451, 506 N.W.2d 857, yet such speculation is exactly what underlies the tenant behavior that the majority presents as justification for imposing greater legal duties on the landlord. Indeed, although a property owner can always control the condition of his premises by correcting physical defects that may result in injuries, he cannot always affect, much less control, the incidences of crime within his community. The inability of government and law enforcement officials to abolish all violent crime does not justify transferring liability to a landlord or to the security company that the landlord hires. See Williams, 429 Mich. at 503, 418 N.W.2d 381.
Under MacDonald, there is no duty "until a specific situation occurs on the premises that would cause a reasonable person to recognize a risk of imminent harm to an identifiable invitee." Id. at 335, 628 N.W.2d 33. In my view, the "specific situation" here is not Schaaf brandishing a gun in the common area, but the tenant earlier informing the security guards that Schaaf was engaging in such conduct. The critical question thus is whether that "specific situation" — the tenant so-informing the security guards — would "cause a reasonable person to recognize a risk of imminent harm to an identifiable invitee." The majority opinion's conclusion that plaintiff constituted an "identifiable invitee" presupposes that the security guards immediately recognized a situation occurring in the common area that posed a risk of imminent and foreseeable harm to plaintiff. However, whether this is true or not would ordinarily pose a question of fact for the jury. Id. There is more than a little benefit-of-hindsight analysis in this regard.
