SEAN MCBRIDE V PINKERTON SECURITY
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STATE OF MICHIGAN
COURT OF APPEALS
SEAN McBRIDE,
UNPUBLISHED
July 2, 1999
Plaintiff-Appellee/Cross-Appellant,
v
No. 202204
Wayne Circuit Court
LC No. 94-422938-NO
PINKERTON’S, INC., d/b/a PINKERTON
SECURITY & INVESTIGATION SERVICES,
Defendant-Cross-Plaintiff
Appellant/Cross-Appellee,
and
PM ONE, LTD., d/b/a PM DIVERSIFIED,
Defendant-Cross-defendantAppellee/Cross-Appellee,
and
METROPOLITAN REALTY CORP,
Defendant-Appellee/Cross-Appellee.
SEAN McBRIDE,
Plaintiff-Appellee,
v
No. 202147
Wayne Circuit Court
LC No. 94-422938-NO
PINKERTON’S, INC., d/b/a PINKERTON
SECURITY & INVESTIGATION SERVICES,
Defendant-Cross-Plaintiff-Appellee,
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and
PM ONE, LTD., d/b/a PM DIVERSIFIED,
Defendant-Cross-DefendantAppellant,
and
METROPOLITAN REALTY CORP,
Defendant.
Before: Young, Jr., P.J., and Murphy and Hoekstra, JJ.
HOEKSTRA, J. (dissenting).
I respectfully dissent from section I of the lead opinion, which affirms the trial court’s denial of
the motion for a judgment notwithstanding the verdict by Pinkerton Security and Investigation Services
(“Pinkerton”); and section VII, which reverses the trial court’s grant of summary disposition to
defendant PM One Ltd. (“PM”) and Metropolitan Realty Corporation (“Metro”).1 I would hold that
plaintiff proffered no basis upon which to conclude that Pinkerton owed him a duty of care.
Accordingly, I would reverse the order of the lower court denying Pinkerton’s motion for a judgment
notwithstanding the verdict, affirm the trial court’s order granting PM and Metro summary disposition,
and find that the remaining issues are rendered moot.
My first and primary basis for dissenting is that I believe the foreseeability factor of the duty
analysis required in this case is of more consequence than either the lead opinion or the concurring
opinion acknowledges. It is well established that where there is no legal duty there can be no actionable
negligence. Blackwell v Citizens Ins Co, 457 Mich 662, 667; 579 NW2d 889 (1998). Duty is the
threshold element of any negligence action. Id. Duty is essentially a question of whether the relationship
between the actor and the injured person gives rise to any legal obligation on the actor’s part for the
benefit of the injured person. Moning v Alfono, 400 Mich 425, 439; 254 NW2d 759 (1977).
“In determining whether a duty exists, courts examine a wide variety of factors, including the
relationship between the parties and the foreseeability and nature of the risk.” Schultz v Consumers
Power Co, 443 Mich 445, 450; 506 NW2d 175 (1993) (emphasis added). See also Mason v Royal
Dequindre, Inc, 455 Mich 391; 566 NW2d 199 (1997). Foreseeability depends upon whether a
reasonable person could anticipate that a given event might occur under certain conditions. Schultz,
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supra at 452, quoting Samson v Saginaw Professional Bldg, Inc, 393 Mich 393, 406; 224 NW2d
843 (1975).
The questions of duty and proximate cause are interrelated because both depend in part on
foreseeability – whether it is foreseeable that the actor’s conduct may create a risk of harm to the victim,
and whether the result of that conduct and intervening causes were foreseeable. Moning, supra.
Rather than going to the jury on the issues of breach of duty, proximate cause, and damages, this case
should have been resolved in defendants’ favor on the threshold question of duty because no reasonable
person could have anticipated that this event might occur under these conditions.
Plaintiff argues that the two to four verbal exchanges inside the lobby did not render the crime
so random and instantaneous that Pinkerton’s employee lacked notice to exercise reasonable care for
the protection of the tenant, plaintiff. Moreover, plaintiff argues that Pinkerton had notice in the form of
earlier complaints by tenants about loitering outside the building and failure to enforce the intercom
system.
However, in my opinion, neither the assailants, Pinkerton’s employee, nor Pinkerton could have
known that these parties would come together in this place and time. Rather, this was a chance
encounter that was unconnected to the events that preceded it in the lobby. Where the shooting
occurred as one party was coming and others were leaving, the shooting constituted no more than an
unfortunate, random act of violence for which Pinkerton should not be held legally responsible for failing
to anticipate or prevent. Indeed, it was just as probable that this incident could have occurred had
defendant’s agent fulfilled her duties and directed the assailants to leave the premises at the precise time
plaintiff was returning from his errand.
Additionally, I believe that this case should have been fully resolved in defendants’ favor on the
question of duty because the level of protection plaintiff sought to obtain was broader than the agreed
upon contractual obligations. Absent a specific promise to do so, a security contract does not ensure
the personal safety of another. “A promise to take specific steps to reduce danger is a promise to do
just that – not a promise to eliminate the danger.” Scott v Harper Recreation, Inc, 444 Mich 441,
450; 506 NW2d 857 (1993).
To prevent the assault in this case would have required Pinkerton to provide a level of
protection well beyond the scope of protection that Pinkerton contractually agreed to render for
plaintiff’s landlord. Within a contractually limited scope of risk, Pinkerton undertook to render only
limited security services, including monitoring access to the common area, signing in guests, and
observing the common area for reportable activities. These services cannot rationally be interpreted to
include the level of protection required to prevent the random attack in this case. Indeed, to equate
Pinkerton’s obligations to that level of protection would be tantamount to holding that Pinkerton
assumed the duty to guarantee plaintiff’s safety at all times and in all places on the premises and
grounds. Pinkerton’s undertaking simply did not extend this far, and neither plaintiff’s reliance upon
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Pinkerton nor Pinkerton’s alleged failure to fulfill even those tasks it did assume can broaden the scope
of Pinkerton’s undertaking.
/s/ Joel P. Hoekstra
1
In light of my resolution of this issue in favor of PM, I have accepted the lower court’s finding that PM
was plaintiff’s landlord, despite PM’s argument that certain receivership proceedings precluded this
finding. Like the lower court, I have nonetheless chosen to treat PM and Metro as one as plaintiff
represents that they were represented by the same counsel and proffered the same legal arguments and
motions.
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