JULIE SOCIA V PACERS BASKETBALL CORP
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STATE OF MICHIGAN
COURT OF APPEALS
JULIE SOCIA,
UNPUBLISHED
February 9, 2010
Plaintiff-Appellant,
v
PACERS BASKETBALL CORPORATION,
JERMAINE O’NEAL, and DAVID HARRISON,
No. 284845
Oakland Circuit Court
LC No. 2007-087231-NO
Defendants-Appellees.
Before: Stephens, P.J., and Jansen and Wilder, JJ.
PER CURIAM.
Plaintiff appeals as of right from an order of the circuit court granting defendants’ motion
for summary disposition. We affirm.
Defendants O’Neal and Harrison are two professional basketball players who were
involved in a now infamous brawl that occurred at a basketball game at the Palace of Auburn
Hills (the Palace) on November 19, 2004 (dubbed the “Palace brawl”), between their team, the
Indiana Pacers, and the Detroit Pistons. The fight began on the court between the two teams, but
soon spilled into the stands. The game was cancelled by officials and the players were directed
to leave the playing floor through a tunnel.
Plaintiff was working at the Palace that night and at the time of her injury was helping to
keep the tunnel clear so that the players could exit. As defendants were leaving, they confronted
another spectator who the players said threw beer at them. As the players engaged with
spectators near the tunnel, another spectator threw a chair, which struck plaintiff on the head,
causing physical injuries that required ongoing treatment. Plaintiff filed this lawsuit against
defendants alleging negligence and gross negligence.
Plaintiff argues that the circuit court erred in granting defendant’s motion for summary
disposition. Plaintiff asserts that defendants owe her a basic duty of care to not endanger her.
Conversely, defendants argue that the issue of duty centers on whether they had a duty to protect
others from the criminal acts of a third person. Ordinarily, whether a duty exists is a question of
law for the court. Brown v Brown, 478 Mich 545, 552; 739 NW2d 313 (2007). If there is no
duty, summary disposition is proper. Beaudrie v Henderson, 465 Mich 124, 130; 631 NW2d 308
(2001).
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We review de novo the court’s granting of summary disposition to defendants, Ormsby v
Capital Welding, Inc, 471 Mich 45, 52; 684 NW2d 320 (2004), as well as the court’s conclusion
on the existence of duty owed, Fultz v Union-Commerce Assoc, 470 Mich 460, 463; 683 NW2d
587 (2004). When reviewing a motion brought under MCR 2.116(C)(10), a court considers the
affidavits, depositions, pleadings, admissions, and other evidence submitted by the parties in the
light most favorable to the non-moving party. Rose v Nat’l Auction Group, Inc, 466 Mich 453,
461; 646 NW2d 455 (2002). Summary disposition is appropriate if there is no genuine issue
regarding any material fact and the moving party is entitled to judgment as a matter of law. Id.
To establish a prima facie case of negligence, a plaintiff must show (1) that the defendant
owed a duty to the plaintiff, (2) that the defendant breached the duty, (3) that the defendant’s
breach of the duty caused the plaintiff injuries, and (4) that the plaintiff suffered damages. Lelito
v Monroe, 273 Mich App 416, 419; 729 NW2d 564 (2006). Duty is requires the defendant to
conform to a specific standard of conduct in order to protect others against unreasonable risks of
harm. Maiden v Rozwood, 461 Mich 109, 131; 597 NW2d 817 (1999); Rakowski v Sarb, 269
Mich App 619, 629; 713 NW2d 787 (2006). Policy factors that should be considered to
determine whether a duty should be imposed include the relationship of the parties, the
foreseeability of the harm, the burden that would be imposed on the defendant, and the nature of
the risk presented. In re Certified Question from Fourteenth Dist Court of Appeals of Texas, 479
Mich 498, 508; 740 NW2d 206 (2007). However, the most important factor considered
determining a duty is the relationship of the parties. Id. at 505; Eichhorn v Lamphere School
Dist, 166 Mich App 527, 545; 421 NW 2d 230 (1988).
“[A]n individual has no duty to protect another from the criminal acts of a third party in
the absence of a special relationship between the defendant and the plaintiff or the defendant and
the third party.” Graves v Warner Bros, 253 Mich App 486, 493; 655 NW2d 195 (2002). A
special relationship exists where “one person entrusts himself to the control and protection of
another, with a consequent loss of control to protect himself.” Id. at 494, quoting Williams v
Cunningham Drug, 429 Mich 495, 498-499; 418 NW2d 381 (1988). Plaintiff has failed to
establish the existence of a special relationship with defendants giving rise to a duty to protect
her from the criminal acts of a third party. Although plaintiff assisted the Pacers’ departure from
the basketball court and was in proximity to them during their continued confrontation with
spectators, plaintiff never alleged that she entrusted her safety to the control of defendants or lost
control to protect herself. Graves, supra, 253 Mich App at 494. Absent a special relationship
creating the duty to protect plaintiff from the criminal acts of a third party, it is unnecessary to
address the other factors relevant to the duty analysis. Miller v Ford Motor Co, 479 Mich 498,
507; 740 NW2d 206 (2007).
Plaintiff argues that finding defendants owed no duty is inconsistent with the law
established in Ritchie-Gamester v City of Berkley, 461 Mich 73; 597 NW 2d 517 (1999). In
Ritchie-Gamester, the Court adopted reckless misconduct as the minimum standard of care for
coparticipants in recreational activities. Id. at 89. Plaintiff argues that finding no duty of
defendants toward spectators is non-sensical because coparticipants have to at least avoid
reckless misconduct. However, the current case does not involve establishing a standard of care
for an entire class of spectators, but rather involves determination of a duty for a particular
plaintiff in a unique context. Whether defendants owed a duty to plaintiff will not conflict with
the standard of care for coparticipants in a sport.
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We also reject the argument that the court erred in not finding a contractual duty of care.
Plaintiff states that the circuit court could not have found that defendants had no contractual duty
to plaintiff because discovery was incomplete on this issue. Generally, a motion for summary
disposition under MCR 2.116(C)(10) is premature when discovery on a disputed issue has not
been completed. Colista v Thomas, 241 Mich App 529, 537; 616 NW 2d 249 (2000). According
to plaintiff, language in a sample standard player’s contract amounts to independent evidence of
this contractual duty. Plaintiff argues that this contract obligates National Basketball Association
(NBA) players to conduct themselves according to the highest standards of citizenship and
sportsmanship, and not do anything that is detrimental to the best interests of the team or league.
However, a negligence claim based on misfeasance of a contractual obligation is the
“violation of a legal duty separate and distinct from the contractual obligation.” Fultz, supra,
470 Mich at 467. Tort actions based on a contract and brought by a plaintiff who is not a party to
that contract are analyzed by using a “separate and distinct” standard. Id. The threshold
consideration in this analysis is whether the defendant owed a duty to the plaintiff that is separate
and distinct from the defendant’s contractual obligations. Id. Plaintiff failed to cross this
threshold.
Summary disposition prior to the close of discovery is appropriate if there is no
reasonable chance that further discovery will produce factual support for the nonmoving party.
Colista, supra, 241 Mich App at 538. The circuit court found, and we agree, that defendants
owed no duty to plaintiff because no relationship existed between them. Absent a separate and
distinct duty from defendants’ contractual obligations, no tort action based on a contract could
stand. Fultz, supra 470 Mich at 467. Thus, discovery of defendants’ specific contractual
obligations to the NBA and their team was irrelevant. See also Bellows v Delaware McDonald’s
Corp, 206 Mich App 555, 561; 522 NW 2d 707 (1994) (observing that where a party opposes a
motion for summary disposition by contending that discovery is incomplete, the party must at
least assert that a dispute does indeed exist and support that allegation by some independent
evidence).
Because of plaintiff’s failure to establish the requisite duty of care, we need not address
her arguments relating to causation.
Affirmed.
/s/ Cynthia Diane Stephens
/s/ Kathleen Jansen
/s/ Kurtis T. Wilder
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