MAURY V ANDERSON V A-1 BAR-B-Q FOODS INC
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STATE OF MICHIGAN
COURT OF APPEALS
MAURY V. ANDERSON and TAMIKO
ANDERSON,
UNPUBLISHED
June 15, 2001
Plaintiffs-Appellants,
v
No. 219532
Wayne Circuit Court
LC No. 97-738301-NO
A-1 BAR-B-Q FOODS, INC.,
Defendant-Appellee.
Before: Hoekstra, P.J., and Whitbeck and Meter, JJ.
PER CURIAM.
This case arose from a robbery on defendant’s premise. Plaintiff Maury V. Anderson
(Mr. Anderson) received permanent injuries when unknown assailants inflicted gunshot wounds
while Mr. Anderson was waiting for his wife, Tamiko Anderson (Mrs. Anderson), in the parking
lot of defendant restaurant. In their complaint, plaintiffs alleged negligence, violation of the
Michigan Consumer Protection Act (MCPA), MCL 445.901 et seq.; MSA 19.418(1) et seq., and
negligent or intentional infliction of emotional distress. The trial court granted summary
disposition in favor of defendant pursuant to MCR 2.116(C)(8) and (10). Plaintiffs appeal as of
right. We affirm.
We review a trial court’s grant of summary disposition de novo. Spiek v Dep’t of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998); Russell v Dep’t of Corrections, 234
Mich App 135, 136; 592 NW2d 125 (1999). A motion for summary disposition pursuant to
MCR 2.116(C)(8) tests the legal sufficiency of the complaint and “may be granted only where the
claims alleged are ‘so clearly unenforceable as a matter of law that no factual development could
possibly justify recovery.’” Maiden v Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999),
quoting Wade v Dep’t of Corrections, 439 Mich 158, 162; 483 NW2d 26 (1992). “In evaluating
a motion for summary disposition brought under [MCR 2.116(C)(10)], a trial court considers
affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR
2.116(G)(5), in the light most favorable to the party opposing the motion” to determine whether a
genuine issue regarding any material fact exists. Maiden, supra at 120. If the nonmoving party
fails to present evidentiary proofs showing a genuine issue of material fact for trial, summary
disposition is properly granted. Smith v Globe Life Ins Co, 460 Mich 446, 455-456, n 2; 597
NW2d 28 (1999).
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Plaintiffs first argue that the trial court erred in granting summary disposition on their
negligence claim because defendant had a duty to protect plaintiffs from the criminal assault. To
establish a prima facie case of negligence, a plaintiff must prove: “(1) that the defendant owed a
duty to the plaintiff; (2) that the defendant breached that duty; (3) that the defendant’s breach of
duty was a proximate cause of the plaintiff’s damages; and (4) that the plaintiff suffered
damages.” Krass v Tri-County Security, Inc, 233 Mich App 661, 667-668; 593 NW2d 578
(1999). Duty is a question of law for the court to determine. Scott v Harper Recreation, Inc, 444
Mich 441, 448; 506 NW2d 857 (1993); Krass, supra at 666. In determining whether a duty is
owed, the courts must determine “‘whether the relationship between the parties will occasion a
legal obligation to the injured party.’” Krass, supra, quoting Tame v A L Damman Co, 177 Mich
App 453, 455; 442 NW2d 679 (1989).
In the instant case, it is undisputed that plaintiffs were defendant’s invitees and therefore
defendant owed plaintiffs a duty. The only question is the extent of the duty owed. Plaintiffs
maintain that the duty extended to protecting or warning them about potential criminal acts. In
this regard, the general rule is that there is no duty to protect individuals from the criminal acts of
third parties unless special circumstances are present. Tame, supra at 455-456. Here, we find
that special circumstances are not present.
The factual situation in Krass, supra, is similar to that in the instant case. In Krass, the
plaintiff was returning to his car parked in a lot secured by the defendant when three men
assaulted him. Id. at 664. He was shot in the head and eventually died from that wound. Id.
The plaintiff’s estate brought a negligence action against the security company for failing to
properly secure the premises and for failing to affirmatively protect the plaintiff. Id. The trial
court ruled that the defendant owed no duty to the plaintiff to protect him from the criminal acts
of third parties and this Court affirmed that ruling. In pertinent part, this Court said:
The central issue in this case relates to duty. . . . As did the Supreme
Court in Williams [supra], we find that the duty advanced by plaintiff is
essentially one of police protection, but that duty is vested in the government by
constitution and statute. As in Williams, we further find that although a property
owner can control the condition of its premises by correcting physical defects that
may result in injuries to its business invitees, it cannot control the incidence of
crime in the community and that the inability of government and law enforcement
officials to prevent criminal attacks does not justify transferring the responsibility
to a business owner. . . . [Id. at 683-684 (emphasis added).]
We are not persuaded by plaintiffs’ argument that this case is controlled by McDonald v
PKT, Inc, 233 Mich App 395; 593 NW2d 176 (1999), lv gtd 461 Mich 992 (2000). In
MacDonald, supra, the plaintiff fractured her ankle while attempting to avoid being hit by sod
that unruly concert-goers were throwing. Id. at 397-398. However, Krass, supra, distinguished
the criminal acts conducted in MacDonald, supra, from general criminal acts when it stated:
MacDonald involved criminal acts that were highly peculiar to defendant’s
outdoor amphitheater and that the defendant in that case arguably had specific
reason to anticipate. In contrast, the tragic shooting underlying the case here was,
in essence, a random street crime, as was that at issue in Scott [v Harper
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Recreation, Inc, 444 Mich 441; 506 NW2d 857 (1993)]. The finding of a genuine
issue of material fact in MacDonald was predicated on the defendant’s knowledge
of a problem peculiar to its location, not a generalized social problem such as
street crime. Thus, we conclude that MacDonald is materially distinguishable in
light of its peculiar facts and does not alter our conclusion that a merchant is
ordinarily not liable for a criminal act committed against an invitee in a parking
lot owned, controlled, or otherwise used by the merchant. [Krass, supra at 682683 (emphasis supplied).]
The same is true in the instant case. Despite plaintiffs’ claim to the contrary, we find that there is
nothing peculiar about defendant’s business or the circumstances preceding this incident that
would make defendant aware of plaintiffs as potential victims of a foreseeable crime. Just
because defendant’s business previously had been the location of other random criminal
occurrences does not translate into plaintiffs being foreseeable victims of another such
occurrence and thereby creating a special relationship between plaintiffs and defendant. As this
Court further noted in Krass, “Michigan law does not treat essentially random ‘crime in the
community,’ such as the tragedy underlying this case, as a ‘foreseeable’ harm against which a
merchant must insure its patrons.” Krass, supra at 683.
Next, plaintiffs argue that the trial court erred in granting summary disposition because
they established a viable violation of the MCPA. “The MCPA is a remedial statute designed to
prohibit unfair practices in trade or commerce and must be liberally construed to achieve its
intended goals.” Forton v Laszar, 239 Mich App 711, 715; 609 NW2d 850 (2000). For a valid
MCPA claim to be presented, the “courts must examine the nature of the conduct complained of
case by case and determine whether it relates to the entrepreneurial, commercial, or business”
aspects of the defendant’s profession. Nelson v Ho, 222 Mich App 74, 84; 564 NW2d 482
(1997). Here, the occasional criminal acts taking place on defendant’s premises in no way relate
to defendant’s conduct in its trade. Additionally, even if we were to assume that not revealing
criminal acts to patrons was a violation of the MCPA, defendant’s failure to reveal occurrences
of street violence occasionally invading defendant’s parking lot does not rise to the level of
misrepresentation. Plaintiffs provided no facts indicating that defendant in any way
misrepresented the safety of his premises. The trial court properly granted summary disposition
pursuant to MCR 2.116(C)(8).
Finally, plaintiffs argue that summary disposition was inappropriate with regard to Mrs.
Anderson’s negligent or intentional infliction of emotional distress claim. For a negligent
infliction of emotional distress claim to prevail, a plaintiff must witness an injury caused by
negligence. Teadt v Lutheran Church Missouri Synod, 237 Mich App 567, 581, n 6; 603 NW2d
816 (1999), citing Duran v The Detroit News, Inc, 200 Mich App 622, 629; 504 NW2d 715
(1993). Because we have concluded that defendant did not act negligently when it failed to warn
plaintiffs of unforeseeable criminal acts, it cannot be said that Mr. Anderson’s injuries were
negligently inflicted by defendant. Accordingly, this aspect of the claim was properly dismissed.
To state a claim for intentional infliction of emotional distress, a plaintiff must
demonstrate
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(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and
(4) severe emotional distress. Liability for such a claim has been found only
where the conduct complained of has been so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency and to be
regarded as atrocious and utterly intolerable in a civilized community. [Teadt,
supra at 582 (citations omitted).]
Because defendant’s conduct could not be reasonably be regarded as so extreme and outrageous
as to permit recovery, we agree with the trial court that plaintiffs failed to state a claim on which
relief may be granted. Thus, summary disposition was proper under MCR 2.116(C)(8). Id.
Affirmed.
/s/ Joel P. Hoekstra
/s/ William C. Whitbeck
/s/ Patrick M. Meter
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