PER CURIAM.
In this suit seeking damages for injuries sustained in a shooting, plaintiff, Devon Scott Bailey, appeals as of right the trial court's final order entering a default judgment against defendant Steven Gerome Schaff. We affirm in part and reverse in part the trial court's order and remand for further proceedings.
There are three separate issues on appeal. The first is whether the trial court abused its discretion when it allowed defendant Evergreen Regency Townhomes, Ltd., the owner of the premises in question, and defendant Radney Management & Investments, the manager of the premises, to amend their responses to Bailey's requests for admissions. We conclude that the trial court's decision was not an abuse of discretion.
The second issue is whether the trial court abused its discretion when it dismissed Bailey's claim that he was a third-party beneficiary of a contract between Evergreen and defendant T.J. Realty, Inc., doing business as Hi-Tech Protection, Inc., the company that provided "courtesy patrolling services" to the premises. We conclude that the trial court did not abuse its discretion because the evidence does not establish a question of fact regarding whether there was an agreement in effect on August 4, 2006 (the date on which Bailey was shot on the Evergreen premises), that imposed any obligation on Hi-Tech with respect to guests of Evergreen's tenants.
The third issue concerns the extent to which a premises possessor has a duty to respond to criminal acts. Relying on MacDonald v. PKT, Inc.,
Evergreen owns the apartment complex where the shooting at issue occurred. In February 2003, Radney entered into a written agreement with Hi-Tech on behalf of Evergreen (the 2003 Contract). In the 2003 Contract, Hi-Tech agreed to provide Evergreen with "courtesy patrolling services." The 2003 Contract provided that it would "run for an initial period of one year from the date of this contract." Defendant, Timothy Johnson, the owner of Hi-Tech, signed on his company's behalf, John Barineau III signed on behalf of Evergreen and Radney, and Barbara Warren signed as the district supervisor for Radney.
In 2006, Johnson began to negotiate a new contract for security services with Mark Barineau, who was the vice president of Evergreen's general partner, Barineau GP, Inc. On August 21, 2006, and August 22, 2006, respectively, Barineau and Johnson signed a new agreement for security services with an effective date of August 28, 2006 (the 2006 Contract).
On August 4, 2006, before the date the 2006 contract was signed Bailey went to a gathering at a friend's apartment in a complex owned by Evergreen. Defendants William Baker and Christopher Campbell were the Hi-Tech security guards on duty that day. Evergreen resident Laura Green went to Baker and Campbell and informed them that there was a man on the premises with a gun. She told them that he was waving the gun and threatening to shoot the guests and asserted later that she pointed to the area of the gathering and identified the man with the gun. Despite Green's warning Baker and Campbell chose instead to drive an intoxicated resident back to his apartment. However, they stated that they looked for a person fitting the description given by Green. Approximately 10 or 15 minutes after they dropped off the intoxicated resident, Campbell and Baker heard two gunshots. They then drove to the gathering, where they observed a man, later identified as Bailey, lying face down with two gunshot wounds in his upper back. Bailey suffered severe injuries, including a spinal cord injury, a pulmonary contusion, and paraplegia.
Bailey sued Schaff (the shooter), Hi-Tech, Johnson, and two unknown security guards in November 2007. Bailey alleged that defendants were liable for the shooting under theories of negligence, premises liability, and vicarious liability. Bailey later amended his complaint to specifically identify Campbell and Baker as the guards and state negligence claims against Evergreen and Radney. Bailey also added a third-party beneficiary contract claim against Hi-Tech, Radney, and Evergreen.
In February 2009, defendants
In March 2009, Bailey moved for partial summary disposition under MCR 2.116(C)(10). He asked the trial court to determine, as a matter of law, that Evergreen, Radney, and Hi-Tech owed him a duty on August 4, 2006. Bailey acknowledged that, under the 2003 Contract, it was clear that Hi-Tech had no duty to a tenant's guests. However, he argued that in July 2006, "there was a clear shift in position as to a specific duty or responsibility owed to the guest of a tenant." Bailey presented evidence that on July 26, 2006, Barineau sent a final draft contract, to be effective on July 28, 2006, that indicated the parties' intent to implement an "enhanced property protection plan." Barineau also included a signed authorization for Hi-Tech to increase its patrol hours. Bailey claimed that by virtue of these modifications, which were later incorporated into the 2006 Contract, Evergreen, Radney, and Hi-Tech voluntarily assumed duties to guests. Bailey also responded to defendants' motion under MCR 2.116(C)(8) by arguing that a landowner has a duty of reasonable care to protect identifiable invitees from the foreseeable criminal acts of third parties; the duty is triggered by specific acts occurring on the premises that pose a risk of imminent foreseeable harm to an identifiable invitee.
Following arguments on the motions in March 2009, the trial court dismissed the individual defendants after Bailey essentially declined to argue that there was any basis for holding them individually liable. The trial court also concluded that a landlord is under no duty to provide security guards. It further reasoned that if a landlord provides security guards who handle an emergent situation deficiently, liability does not arise from their actions because the voluntary provision of security does not create a greater responsibility on the part of the landlord. Thus, the trial court granted defendants' motion under MCR 2.116(C)(8). Without hearing arguments on the issue, the trial court also concluded that there was no contract in existence at the time of the shooting that extended Hi-Tech's responsibility to guests because only an unsigned draft existed at the relevant time. For these reasons, the trial court granted defendants' countermotion for summary disposition under MCR 2.116(C)(10) and (I)(2) and denied Bailey's motion.
In May 2009, the trial court granted summary disposition in favor of defendants and ordered the dismissal of Bailey's negligence claims—counts 1 to 8—under MCR 2.116(C)(8). The trial court also denied Bailey's motion for partial summary disposition and granted defendants' motion with respect to count 9, Bailey's final claim, which involved a claim for breach of contract. The trial court noted that the order dismissed the case with respect to all defendants except Schaff, to whom the order did not apply.
Bailey moved for reconsideration, arguing that the trial court had erred because defendants owed him a duty as a matter of law. He also argued that summary disposition on his contract claim was improper because defendants' "counter-motion," included with their response to Bailey's, was really a new motion that was not properly filed as such. Bailey asked the trial court to order defendants to refile their motion. The trial court denied Bailey's motion for reconsideration, but vacated the portion of its May 2009 order that dismissed Bailey's contract claim and ordered defendants to file a motion for summary disposition of that claim. Over defendants' objection, the trial court also subsequently reopened
In November 2009, defendants moved for summary disposition of Bailey's contract claim under MCR 2.116(C)(10). They argued that Bailey was unable to demonstrate that he was an intended third-party beneficiary of any contract between Evergreen and Hi-Tech because the documentary evidence conclusively showed that the only contract mentioning "guests" was not entered into until August 28, 2006. Bailey argued that the contractual relationship between Evergreen and Hi-Tech was not limited to the 2003 and 2006 Contracts "but [was defined by] the series of negotiations including increasingly detailed contracts, each of which were legally binding as the undertaking progressed."
The trial court affirmed its earlier ruling and concluded that the documents circulated in July 2006 were in contemplation of the contract that was eventually executed in August 2006. It rejected the argument that the unsigned documents constituted a contract. Accordingly, the trial court entered an order dismissing Bailey's contract claim. The trial court also entered a default judgment against Schaff for $1.5 million. This order resolved all claims and closed the case. This appeal followed.
We first address Bailey's argument that the trial court abused its discretion by permitting Evergreen and Radney to amend their responses to his requests for admission. This Court reviews for an abuse of discretion a trial court's decision on a party's motion to amend its admissions under MCR 2.312(D)(1).
In response to Bailey's requests for admission, Evergreen and Radney admitted that a copy of a "draft" contract showing an effective date of July 28, 2006, "is a copy of the Contract Agreement Between [the parties]." They subsequently moved to amend their answers. They claimed that 45 days after their responses to Bailey's requests for admissions, they discovered two additional documents: the 2003 and 2006 Contracts. The trial court granted the motion, finding that Evergreen and Radney became aware of the 2006 Contract through "legitimate discovery in a timely fashion" and that Bailey would not be prejudiced if the motion were granted. Evergreen and Radney subsequently filed amended responses in which they denied that any of the July 2006 documents were binding agreements.
"Within the time for completion of discovery, a party may serve on another party a written request for the admission of the truth of a matter within the scope of MCR 2.302(B) stated in the request that relates to statements or opinions of fact or the application of law to fact, including the genuineness of documents described in the request."
In Radtke v. Miller, Canfield, Paddock & Stone,
In Janczyk v. Davis,
In light of the purposes of MCR 2.312 that the Court articulated in Radtke
Nor is there any indication that defendants' initial failure to uncover the 2003 and 2006 Contracts was anything but inadvertent. The provision for trial court discretion to allow amendment or withdrawal shows that the rule's purpose of expediting and streamlining an action is not absolute. The situation here—in which two parties later learned that timely, initial responses had inadvertently failed to account for critical documents—is precisely the kind of possibility the reservation of trial court discretion in MCR 2.312(D)(1) addresses.
We next address Bailey's argument that the trial court erred when it dismissed his claim that he was a third-party beneficiary of the contract between Evergreen and Hi-Tech. This Court reviews de novo a trial court's decision to grant summary disposition.
In order for a contract to be formed, there must be an offer, an acceptance in conformance with the offer, and a meeting of the minds on all essential terms.
On July 27, 2006, Barineau faxed Johnson several documents with a cover sheet that stated: "See attached letter in follow-up to our meeting of 7.25.06 along with draft contract which includes most of the items we discussed and written authorization to add additional patrol hours for the next 30 days." The "attached letter" was from Barineau to Johnson and was dated July 26, 2006. Also included in the faxed documents was a "Contract Agreement" bearing an effective date of July 28, 2006, marked "DRAFT" on each page and with notes in the margins, and "Post Orders" that are also marked "DRAFT" and bear an effective date of July 28, 2006. Finally, the documents include an "Authorization to Increase Patrol Hours," signed by Barineau and dated July 27, 2006, authorizing Hi-Tech to add additional patrol hours as specified in the document. Johnson ultimately signed a "draft" contract agreement bearing an effective date of July 28, 2006. Notably, in the signed copies that are part of the record, the spaces for the various fees on the second page are either blank or have been obscured. Johnson's signature on this document is not dated. Johnson also signed, but did not date, the "DRAFT" "Post Orders" "[e]ffective July 28, 2006."
We agree with Bailey that Barineau and Johnson did have a "meeting of the minds" concerning certain obligations that would begin immediately, such as additional patrol hours and the rate increase for that service. But the dispositive question is whether there is a genuine issue of material fact regarding the existence, on August 4, 2006, of a specific obligation on the part of Hi-Tech with respect to Evergreen guests. That is, the question generally is whether the agreement clearly identified guests on Evergreen's property as third-party beneficiaries of the agreement. The
The fax cover page refers to the attached "draft contract which includes most of the items we discussed," suggesting that it was not complete or final. In addition, the "property protection plan," which Evergreen and Hi-Tech were to implement "[e]ffective immediately," called for Evergreen to "[e]xecute [a] new one-year term contract" with Hi-Tech, "to include new provisions such as...." This language suggests that the new contract had to be executed. The final paragraph of the letter again refers to a "final draft contract" and says, "Let me know your thoughts." In addition, Barineau informed Johnson that he had sent a copy of the contract to Evergreen's insurance agent, who "may come back with a thought or two that we may have to include." This suggests that Barineau did not consider the language of the "draft" agreement he was sending to Johnson to have been finalized. Indeed, Barineau wrote that he "would like to finalize the contract no later than the week of July 31st." And, as repeatedly noted, the "contract" Barineau sent was marked "DRAFT" on each page and was not signed by Barineau.
Taken together, these documents did not manifest a willingness on Barineau's part to enter into a bargain in such a way as to justify another person in understanding that his or her assent to that bargain was invited and would conclude it.
We note that we did not rely on Johnson's affidavit, to which Bailey objects on the basis that it contradicted Johnson's earlier deposition testimony. "[A] witness is bound by his or her deposition testimony, and that testimony cannot be contradicted by affidavit in an attempt to defeat a motion for summary disposition."
We next address Bailey's argument that the trial court erred when it granted defendants' motion for partial summary disposition under MCR 2.116(C)(8) as to all his negligence claims and erred when it denied his motion for partial summary disposition under MCR 2.116(C)(10). This Court reviews de novo a trial court's decision to grant summary disposition.
The trial court dismissed Bailey's negligence claims under MCR 2.116(C)(8) because it concluded that Evergreen, Radney, and Hi-Tech owed no duty to Bailey that was distinct from any contractual duty. (Bailey has not appealed the trial court's order to the extent that it dismissed the claims against Johnson, Baker, and Campbell.) A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of the complaint using the pleadings alone.
At the outset, we note the extreme nature of the ongoing situation at Evergreen on August 4, 2006. This was not an animated discussion among friends. It was not a domestic quarrel. It was not an argument in which fighting words were exchanged. It was not a sod-throwing incident similar to the one the MacDonald Court considered. It was not an occasion on which one person threatened another with a set of barbeque tongs or even a baseball bat. It was not a fistfight or a brawl. It was the most deadly circumstance of all: 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.
That being said, it is generally accepted that premises possessors owe certain duties to visitors on their land.
That premises possessors have no duty to make their premises safer than the community at large is not a recent idea. Justices and judges have enunciated it for decades. In his 1972 dissenting opinion in Johnston v. Harris,
Similarly, Justice LEVIN in his 1975 dissent in Samson v. Saginaw Prof. Bldg., Inc.
Subsequent decisions have picked up on these themes, thus narrowing the window of premises possessors' liability for the criminal acts of others. In Williams v. Cunningham Drug Stores, Inc., the Michigan Supreme Court faced a question of first impression regarding whether a storeowner must provide armed, visible security guards to protect customers from the criminal acts of third parties.
Thus, the Court made clear that despite the duty that merchants owe to protect their invitees, this duty is not so broad as to require merchants to step into the role of serving as a law enforcement equivalent.
In a later case, the Supreme Court held that even when a merchant chooses to provide security to its patrons there is no increased liability for failing to actually prevent crime. In Scott v. Harper Recreation, Inc.,
The Scott Court stated its agreement with Tame v. A L Damman Co,
The Scott Court concluded that "the rule of Williams remains in force, even where a merchant voluntarily takes safety precautions."
The Supreme Court revisited the issue of whether merchants have a common-law duty to protect their patrons from the criminal acts of third parties in Mason v. Royal Dequindre, Inc.
With this distinction in mind, the Court held that merchants can be liable for failing to take reasonable measures to protect their invitees from foreseeable harm caused by the criminal acts of third parties.
More specifically, the Court in Mason concluded that a bar owner had no duty to take reasonable measures to protect one of its patrons from an unforeseeable attack by another patron.
The Supreme Court took yet another hard look at the liability of merchants for the criminal acts of third parties in MacDonald.
On the issue of foreseeability, the Court disavowed its reasoning in the Goodman companion case to Mason: "To the extent that ... we relied upon evidence of previous shootings at the bar in assessing whether a reasonable jury could find that the Goodman plaintiff's injury was foreseeable, we now disavow that analysis as being flatly inconsistent with Williams and Scott."
The Court then made its basic holding explicit. It stated that the duty to respond requires only that a merchant make reasonable efforts to contact the police.
Thus, at least in the merchant context, the Court has adopted the basic principle that Justice BRENNAN articulated in his dissent in Johnston: public safety is the business of the government.
In reconciling the preceding decisions, we must address a critical question: Does the Williams/Scott/Mason/MacDonald line of cases—which deal, respectively, with the owners of a drug store, a nightclub, two bars, and a large entertainment venue—even apply to an apartment complex?
To our knowledge, this is an issue of first impression.
Because this issue involves the propriety of the trial court's decision to dismiss Bailey's claims under MCR 2.116(C)(8), we limit our analysis to a discussion of the basic facts that Bailey set out in his pleadings. We express no opinion about whether Evergreen or Radney might be able to show—through evidentiary submissions—that one or the other was not the premises
In his second amended complaint, Bailey alleged that Green informed Baker and Campbell that Schaff had a gun and was threatening to shoot people. Green even pointed at Schaff, who was visible to Baker and Campbell along with the people in Schaff's vicinity, which included Bailey. Bailey further alleged that Baker and Campbell did nothing in response. Finally, Bailey alleged that Baker and Campbell were, at all relevant times, acting within the scope of their employment or agency with Evergreen and Radney. On the basis of these alleged facts, Bailey claimed that Evergreen and Radney breached their duty of care to him as the guest of an Evergreen tenant. Bailey's claim implicated a landlord's general duty to take reasonable steps to protect his or her invitees from criminal acts within its common areas. But it also arguably implicated a merchant's duty to involve the police when the criminal acts of a third party endanger a readily identifiable invitee. We disagree that the former applies, but adopt the latter as applying under the circumstances.
Bailey alleged that Schaff was "on the premises in a common outdoor area" threatening to shoot someone. Thus, this case clearly does not involve a condition on the land that placed Bailey at a heightened risk of harm at the hands of third parties. As such, to the extent that Bailey alleged that Evergreen and Radney had a general duty to protect him from the criminal acts of third-parties simply because this outdoor common area was on the premises as a condition on the land, he necessarily failed to state a claim. A premises possessor has no such duty.
Turning to a merchant's duty to involve the police, we believe that the limited duty that MacDonald imposes on merchants must necessarily apply to landlords in light of a landlord's closer relationship to its tenants and their guests. As Williams noted, "[A] landlord has more control in his relationship with his tenants than does a merchant in his relationship with his invitees."
Thus, extending the MacDonald principles, Evergreen and Radney as premises proprietors, clearly had a duty to "respond[ ] reasonably to situations occurring on the premises," which included a duty to call the police when required.
In sum, we conclude that the trial court did not err to the extent that it dismissed Bailey's claims premised on a duty of Evergreen or Radney to provide security or otherwise make the premises safe from criminal activity. But applying MacDonald, we conclude that the trial court erred when it determined that Bailey had failed to state a claim against Evergreen and Radney when they did not respond properly—through their agents—to the imminent threat that Schaff posed to lawful invitees. Evergreen or Radney had the duty to call the police once they had knowledge of an ongoing emergency that posed a foreseeable risk of imminent harm to an identifiable invitee or class of invitees.
The court, however, did not err when it dismissed Bailey's negligence claims against Hi-Tech because Bailey had failed to identify a duty that was separate and distinct from Hi-Tech's duties under its contract with Evergreen.
In summary, we conclude that the trial court erred when it concluded that Bailey had failed to state a claim against Evergreen and Radney and dismissed that claim. A premises possessor has a duty to take reasonable measures in response to an ongoing situation that is occurring on the premises, which means calling the police when circumstances require. But because
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Having considered the issues and results on appeal, we order that none of the parties may tax costs.
BECKERING, P.J., and WHITBECK and M.J. KELLY, JJ., concurred.
In Scott, 192 Mich.App. at 142, 480 N.W.2d 270, this Court stated that because the defendant-merchant provided secure parking "and allegedly advertised this fact in order to attract patrons, it voluntarily assumed the duty to provide security." However, as noted, the Supreme Court in Scott, 444 Mich. at 452, 506 N.W.2d 857, reversed this Court's decision. And in Rhodes, 184 Mich.App. at 743, 459 N.W.2d 44, this Court stated that when the defendant-merchant "voluntarily assumed the duty of providing police protection in the form of guards ..., it became incumbent upon them to provide that protection in a non-negligent manner." But in Scott, 444 Mich. at 452, 506 N.W.2d 857, the Supreme Court rejected that holding, expressly stating that "[t]o the extent that Rhodes implies that an agreement to provide security is an actionable warranty that the guarded area will be safe from all criminal activity, it is inconsistent with Michigan law."
We also note that the Supreme Court in Scott, 444 Mich. at 452 n. 15, 506 N.W.2d 857, declined to discuss Holland v. Liedel, 197 Mich.App. 60, 64-65, 494 N.W.2d 772 (1992), in which this Court stated that "although defendant, generally, may have had no duty to provide parking lot security guards for the tenants of the apartment complex, if [defendant] voluntarily assumed the duty to provide security, a cause of action could exist if [defendant] was negligent in the discharge of this voluntarily assumed duty" because Holland dealt with the area of landlord-tenant law. Indeed, similarly, in Holland this Court declined to decide whether Williams applied in a landlord-tenant case. Id. at 63, 494 N.W.2d 772.
