STEPHEN L LOWRY V CELLAR DOOR PRODUCTIONS OF MICH INC
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STATE OF MICHIGAN
COURT OF APPEALS
STEPHEN L. LOWRY,
UNPUBLISHED
June 8, 1999
Plaintiff-Appellant,
v
CELLAR DOOR PRODUCTIONS OF
MICHIGAN, INC. and ARENA ASSOCIATES,
INC. d/b/a PINE KNOB MUSIC THEATRE,
No. 206875
Oakland Circuit Court
LC No. 96-519569 NO
Defendants-Appellees.
Before: Murphy, P.J., and Gage and Zahra, JJ.
MURPHY, P.J. (concurring in part and dissenting in part).
I respectfully dissent in part and concur in part.
I see no meaningful distinction between this case and the recently decided case of MacDonald
v PKT, Inc, 233 Mich App 395; __ NW2d __ (Docket No. 204703, issued 1/15/99). In
MacDonald at 400, this Court held that because the plaintiff presented evidence that there had been
incidents of sod throwing at previous concerts, a genuine issue of material fact existed whether the sod
throwing incident at issue in MacDonald was foreseeable. In this case, plaintiff also presented evidence
that there had been incidents of sod throwing at previous concerts. Specifically, Pine Knob Event
Coordinator Connie Marshall testified in deposition that she believed that there had been incidents of
sod throwing at previous events. Although plaintiff did not present evidence regarding the number of
previous sod throwing incidents or the dates and circumstances surrounding those previous occurrences,
plaintiff nonetheless established the existence of a genuine issue of material fact with respect to whether
the sod throwing incident at issue in this case was foreseeable. Accordingly, pursuant to MacDonald, I
would reverse the trial court’s decision to grant summary disposition in favor of defendants.
I also disagree with the majority’s conclusion that even assuming that the sod throwing incident
in this case was foreseeable, plaintiff failed to establish a genuine issue of material fact with respect to
defendants’ negligence. The reasonableness of a defendant’s conduct is generally a question for the
jury. Riddle v McLouth Steel Products Corp, 440 Mich 85, 96; 485 NW2d 767 (1992). In this
case, although the evidence reveals that patrons with disabilities, such as plaintiff, were afforded seating
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locations at the venue that would allow them to view concerts without obstruction, the evidence also
reveals that defendants made no additional effort to protect the safety of these patrons, who often suffer
from limited mobility. In light of my conclusion regarding the foreseeability of the sod throwing incident,
I likewise find that the reasonableness of defendants’ conduct with respect to protecting patrons with
disabilities from injuries resulting from sod throwing should also have been submitted to a jury.
Finally, I concur with the majority’s decision that the trial court properly granted summary
disposition in favor of defendants regarding plaintiff’s handicapper’s discrimination claim.
I would reverse in part, affirm in part, and remand to the trial court.
/s/ William B. Murphy
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