MALIK TOSA V GEORGE YONO
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
MALIK TOSA,
UNPUBLISHED
March 18, 2008
Plaintiff-Appellee/Cross-Appellant,
v
No. 274301
Wayne Circuit Court
LC No. 05-516265-NO
GEORGE YONO,
Defendant/Third Party PlaintiffAppellant/Cross-Appellee,
and
JAMAL ODEESH and ATEF ASMARO,
Third-Party Defendants.
Before: Whitbeck, C.J., and White and Zahra, JJ.
PER CURIAM.
Defendant George Yono appeals by leave granted the trial court’s order denying his
motion for summary disposition on the issue of premises liability. Plaintiff Malik Tosa crossappeals the trial court’s order granting Yono’s motion for summary disposition on the issues of
general negligence and nuisance. This case arises out of an incident when a stray dog confronted
Tosa and he allegedly fell on a defective condition located on Yono’s property. We reverse in
part and affirm in part.
I. Basic Facts And Procedural History
At all times relevant to this case, George Yono was the owner of a commercial property
located on West Seven Mile in Detroit, Michigan. Yono also owned the building that was
located on the property. Yono leased space in the building to Jamal Odeesh, who used the space
to operate a restaurant. A parking lot area that was located directly in front of the building
provided parking for patrons of the restaurant.
According to deposition testimony, on August 13, 2004, Tosa was a patron of the
restaurant and parked his car in the parking lot provided. Upon leaving the restaurant, Tosa
headed back to his car. But just as he was about to open the door of his car, a stray dog
confronted him. Tosa attempted to back away from the dog, but his shoe got stuck in a crack in
-1-
the pavement of the parking lot, causing him to fall. As a result of the fall, Tosa suffered injuries
to his wrist and shoulder. Tosa suffered no direct injuries from the dog, which ran away after
Tosa fell.
Tosa filed a complaint, alleging that Yono was aware that stray dogs would wander
through the parking lot, creating a dangerous and hazardous condition for the patrons of the
restaurant. Therefore, Tosa alleged that Yono failed to fulfill his duty to provide a safe parking
area by failing to fence off or guard the parking lot. Deposition testimony indicated that the dogs
were attracted to a garbage dumpster near the restaurant. In his amended complaint, Tosa further
alleged that Yono created a public nuisance by allowing stray dogs to run through the parking lot
and attack patrons, and that Yono “unreasonably interfered with the common right enjoyed by
the general public, including such individuals as [Tosa], to ingress and egress from not only their
vehicles, but also through the parking lot and into the restaurant.”
Yono filed two motions for summary disposition. In the first motion, he argued that the
trial court should dismiss Tosa’s public nuisance claim under either MCR 2.116(C)(8) or
(C)(10). More specifically, Yono argued that Tosa’s public nuisance claim was unenforceable as
a matter of law because a single alleged incident between a stray dog and one person in a parking
lot owned by a private individual simply did not rise to the level of public nuisance, which, Yono
argued, required a showing of interference with common rights shared by the public at large.
Yono further argued that there was no genuine issue of material fact that a single alleged attack
by a stray dog did not constitute an “unreasonable interference” with a public right because the
condition was not of such a continuing nature to produce permanent or long-lasting effects. In
his second motion, Yono argued that the trial court should dismiss Tosa’s general negligence and
premises liability claims under MCR 2.116(C)(10). More specifically, Yono argued that there
was no genuine issue of material fact that he had no notice of the crack on which Tosa allegedly
fell. Yono also argued that the crack was an open and obvious condition, noting that a crack in
the surface of a parking lot is a common, everyday occurrence. And, citing an unpublished
decision of this Court,1 Yono asserted that the presence of the stray dog was not a special aspect
that would negate the open and obvious nature of the crack in the parking lot. Yono also
contended that, pursuant to his lease agreement with Odeesh, he had no duty to maintain the
premises.
Notably, in responding to Yono’s motions for summary disposition, Tosa stated as
follows:
The Plaintiff . . . never alleged other than the fact that he was caused to
have tripped in a pot hole in the parking lot, that the dangers ensued were caused
by a pothole. The Plaintiff’s injuries in this case were solely the result of being
attacked which caused him to attempt to flee an attacking dog, wherein he was
1
Brooks v Burger King Corp, unpublished opinion per curiam of the Court of Appeals, issued
June 23, 2005 (Docket No. 252576), slip op p 3 (“The presence of the wild dogs on the premises
also cannot qualify as a special aspect.”).
-2-
caused to have tripped, lost his footing, and fell to the ground, and caused him to
suffer this injury.
Accordingly, Tosa argued that the open and obvious doctrine did not bar his claim for nuisance.
Tosa acknowledged that to support his public nuisance claim he had to demonstrate that his harm
differed from that of the general public; thus, he argued that he had “shown that his harm was
different than the general public in that he has shown that he was literally attacked by this wild
dog, and as a result, while attempting to flee, fell to the ground and suffered horrible injuries[.]”
At the hearing on the motion, the trial court asked Tosa’s counsel to comment on the
negligence claim, and counsel responded as follows:
[T]his is not a slip and fall case. This is more. I don’t think in our
complaint we allege slip and fall. I think originally what we claimed they [sic]
should have had a fencing guarding the premises. The fact he backed up and hit a
hole tripped, fell and injured himself is a fact but this is not your “premises
liability claim.”
The general liability claim interestingly enough since there is no open and
obvious defense, there is no open and obvious claim in a nuisance claims so when
once both of those claims—this argument of open and obvious doesn’t apply.
***
[W]e are not alleging that the [sic] fact he tripped in a hole. The fact is he was
being chased by a dog. He was backing up and he fell. He could have fallen
without that hole. The fact is this was a premises, this was a general liability case
filed for in the beginning because our claim was a failure to maintain a safe
premises and then we added the nuisance claim.
Following the hearing, the trial court granted Yono’s motion for summary disposition on
the claims for general negligence and nuisance. However, the trial court ruled that the case
“survives on the premises case.” The trial court explained its ruling on the general negligence
claim by drawing an analogy between stray dogs and criminal activity, concluding that the
landowner had no duty to protect patrons from injuries by third parties, “including animals
alone.” The trial court further reasoned that “[p]ublic nuisance can originate from private land
like parking lots but the impact of the nuisance must be on the general public, the community at
large . . ., not a specific subset of people such as restaurant customers[.]” Turning to the issue of
premises liability, the trial court noted that the primary case on which Yono relied was an
unpublished case and, thus, not binding. The trial court reasoned as follows:
This Court does not believe that a man chased by a pack of wild dogs can
be expected to notice or protect against a depression in the sidewalk as a matter of
law. The Court of Appeals stated alternative routes were available but the
pedestrian as seen from an objective perspective who was fleeing a pack of wild
dogs has a chance to take or even apprehend [sic] an alternative route.
-3-
The Court of Appeals separated the hazard . . . from the context, the
chased by the pack of wild dogs but the hazard was not just the depression itself.
The hazard was the depression in conjunction with the pack of dogs and
significantly the owner was aware of the dog problem.
Yono now appeals the trial court’s ruling on the premises liability issue, and Tosa crossappeals the trial court’s ruling on the issues of general negligence and nuisance.
II. Summary Disposition
A. Standard Of Review
We review de novo a trial court’s ruling on a motion for summary disposition.2 Where,
as here, the trial court grants a motion for summary disposition brought pursuant to both MCR
2.116(C)(8) and (C)(10), and it is clear that the court looked beyond the pleadings, we “will treat
the motions as having been granted pursuant to MCR 2.116(C)(10),” which “tests whether there
is factual support for a claim.”3 Under MCR 2.116(C)(10), a party may move for dismissal of a
claim based on the ground that there is no genuine issue with respect to any material fact and the
moving party is entitled to judgment or partial judgment as a matter of law. The moving party
must specifically identify the undisputed factual issues, and support its position with affidavits,
depositions, admissions, or documentary evidence.4 When reviewing the motion, a court must
consider all the documentary evidence in the light most favorable to the nonmoving party.5
B. Premises Liability
Although his complaint seemingly sounded in premises liability, Tosa repeatedly denied
that he was alleging a premises liability claim. Instead, he insisted that he intended to bring the
claim under the theories of general negligence and nuisance. To that end, Tosa clarified that he
was not claiming that he was injured as a result of the defect in the surface of the parking lot,
specifically stating that his injuries “were solely the result of being attacked which caused him to
attempt to flee an attacking dog[,]” and that “[h]e could have fallen without that hole.”
Accordingly, we conclude that the trial court erred in continuing the action under a theory of
liability that Tosa specifically disclaimed.
Indeed, to the extent Tosa’s complaint could be construed as asserting a claim under the
theory of premises liability, we find Brooks v Burger King Corp persuasive.6 In that case, while
2
Stopczynski v Woodcox, 258 Mich App 226, 229; 671 NW2d 119 (2003).
3
Kefgen v Davidson, 241 Mich App 611, 616; 617 NW2d 351 (2000).
4
MCR 2.116(G)(3)(b); Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999).
5
MCR 2.116(G)(5); Maiden, supra at 120.
6
An unpublished opinion has no precedential value. MCR 7.215(C)(1). But when a party
chooses to cite an unpublished opinion, a court may follow that decision if it finds the reasoning
persuasive. See People v McCullum, 172 Mich App 30, 33; 431 NW2d 451 (1988); Plymouth
Stamping v Lipshu, 168 Mich App 21, 27-32; 424 NW2d 530 (1988), aff’d 436 Mich 1 (1990).
-4-
running from a pack of wild dogs, the plaintiff fell on a sewer grate depression in the pavement
of a parking lot.7 The panel in that case held that the depression was an open and obvious
condition and also held that the presence of the wild dogs did not qualify as a special aspect. The
Brooks panel pointed out that the presence of the wild dogs was not an aspect of danger from the
pothole itself. The panel stated that “the risk of tripping while fleeing from wild dogs [was] not
unavoidable. A different route could have been taken[.]”8
Here, the presence of the stray dog was not an aspect of danger from the crack on which
Tosa tripped. The risk of tripping while attempting to back away from the stray dog was not
unavoidable. Tosa could have gotten into his vehicle, or simply taken a different route. The
presence of the stray dog did not qualify as a special aspect to make a small crack in the
pavement of a parking lot unreasonably dangerous. Moreover, the record suggests that Tosa
should have known that stray dogs frequented the parking lot. Although Tosa stated that he
never actually saw a dog in the parking lot before the date of the incident, he testified that he had
heard Odeesh complain about the dogs. Indeed, Odeesh testified that stray dogs and cats were a
common occurrence in the area. Thus, under the circumstances, we cannot conclude that a stray
dog was an “unusual” condition such as would prohibit application of the open and obvious
doctrine.
Accordingly, we conclude that the trial court erred in denying Yono’s motion for
summary disposition on the issue of premises liability.
C. General Negligence
To establish a prima facie case of negligence, a plaintiff must first show that the
defendant owed a duty to the plaintiff.9 “Duty” is a legally recognized obligation to conform to a
particular standard of conduct toward another.10 In the absence of a controlling statute or
contract, the common law imposes on every person an obligation to use due care or to act so as
not to unreasonably endanger the person or property of others.11 When determining whether to
impose a common-law duty, the most important factor is the relationship between the parties.12
And the relationship between a landowner and an invitee can impose a duty on the invitor to
exercise reasonable care for an invitee’s protection.13
7
Brooks, supra at slip op p 1.
8
Id. at slip op p 3.
9
Henry v Dow Chemical Co, 473 Mich 63, 71-72; 701 NW2d 684 (2005).
10
Rakowski v Sarb, 269 Mich App 619, 629; 713 NW2d 787 (2006).
11
Riddle v McLouth Steel Products, 440 Mich 85, 95; 485 NW2d 676 (1992); Hampton v Waste
Mgt of Michigan, Inc, 236 Mich App 598, 602; 601 NW2d 172 (1999).
12
In re Certified Question from the Fourteenth District Court of Appeals of Texas, 479 Mich
498, 505; 740 NW2d 206 (2007).
13
Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 499-500; 418 NW2d 381 (1988).
-5-
However, an invitor is not required to protect customers from the crimes of others, even
in high crime areas.14 Therefore, a merchant is not required to provide security or otherwise
anticipate and prevent the criminal acts of third parties.15 “A business invitor is not the insurer of
the safety of the invitees. Although a business invitor can control the condition of its premises
by correcting physical defects which could result in injuries to its invitees, it cannot control the
incidence of crime in the community.”16 “To require defendant to provide [security] to protect
invitees from criminal acts in a place of business open to the general public would require
defendant to provide a safer environment on its premises than its invitees would encounter in the
community at large.”17 “Criminal activity is irrational and unpredictable[.]”18
Although stray dogs are not criminals, we agree with the trial court that an appropriate
analogy can be drawn between stray dogs and criminals. Both are undesirable and both can be
dangerous, but the conduct of both is irrational and unpredictable. Thus, although a landowner
owes a duty to an invitor to exercise reasonable care to protect the invitor from dangerous
conditions on the land, a landowner has no duty to control the incidence of stray dogs roaming
onto his property, even in an area where stray dogs are known to be a common occurrence.19
Yono was not required to provide a safer environment on his premises than the restaurant patrons
would encounter in the community at large.20 Therefore, we conclude that Yono had no duty to
install a fence to protect Tosa from stray dogs confronting him in the parking lot.21
D. Nuisance
A public nuisance is an unreasonable interference with a common right enjoyed by
members of the general public.22 The term “unreasonable interference” includes conduct that
significantly interferes with the public’s health, safety, peace, comfort, or convenience, or is
known or should have been known by the actor to be of a continuing nature that produces a
permanent or long-lasting, significant effect on these rights.23 A private citizen may file an
action for a public nuisance against an actor where the individual can show he suffered a type of
14
Perez v KFC Nat’l Mgt Co, 183 Mich App 265, 268-269; 454 NW2d 145 (1990).
15
MacDonald v PKT, Inc, 464 Mich 322, 325-326; 628 NW2d 33 (2001).
16
Perez, supra at 268.
17
Williams, supra at 502.
18
MacDonald, supra at 335.
19
See Perez, supra 268-269.
20
Williams, supra at 502.
21
See MacDonald, supra at 325-326.
22
Cloverleaf Car Co v Phillips Petroleum Co, 213 Mich App 186, 190; 540 NW2d 297 (1995).
23
Id.
-6-
harm different from that of the general public.24 To be held liable under a nuisance theory, the
defendant must have either created the nuisance or have possession or control of the land.25
Because Yono did not create the alleged nuisance—stray dogs roaming the
neighborhood—his potential for liability could only be created by his possession of the land.
“The possessor of land upon which [a] third [party] conducts an activity
that causes a nuisance is subject to liability if: (1) he knows or has reason to
know that the activity is being conducted and that it causes or involves an
unreasonable risk of causing the nuisance, and (2) he consents to the activity or
fails to exercise reasonable care to prevent the nuisance.”[26]
We conclude that Yono cannot be liable for the alleged nuisance created by the stray dogs
entering his property because the record does not support a finding that the animals’ presence
created an unreasonable interference with a right common to the public or involved an
unreasonable risk.
Tosa claimed that Odeesh told him that dogs had “attacked” him a couple times while he
was in the alley behind the building. However, the record does not support that anyone,
including Tosa, was ever actually “attacked” by a stray dog in the restaurant parking lot. Indeed,
in an August 2004 affidavit, Odeesh testified that dogs had chased him a couple times; however,
at his deposition in March 2006, Odeesh denied that the dogs had chased him, claiming only that
he had seen them. Moreover, Tosa could not remember the dog barking or growling at him, and
he testified that the dog did not bare its teeth at him. Tosa’s testimony indicates that the dog was
simply walking slowly towards him. And, after Tosa fell, the dog ran away. Tosa conceded that
despite having visited the restaurant on several prior occasions, he had never before seen any
dogs in the parking lot.
Although the presence of stray dogs is an undesirable element to have in a community,
there is no evidence here that the dogs’ presence created an unreasonable interference with a
common right enjoyed by members of the general public or created an unreasonable risk of harm
to Tosa or to the general public that would subject Yono to liability for not abating the alleged
nuisance.
We affirm the trial court’s ruling granting Yono’s summary disposition on the issues of
general negligence and nuisance, but we reverse the trial court’s ruling denying Yono’s motion
for summary disposition on the issue of premises liability.
/s/ William C. Whitbeck
/s/ Brian K. Zahra
24
Adkins v Thomas Solvent Co, 440 Mich 293, 306, n 11; 487 NW2d 715 (1992); Cloverleaf,
supra at 190.
25
Wagner v Regency Inn Corp, 186 Mich App 158, 163; 463 NW2d 450 (1990).
26
Id. at 163-164.
-7-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
