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e-Journal Summary
Opinion Date: 07/30/2013
e-Journal Date: 08/01/2013
Full Text Opinion

Practice Area(s):   Negligence & Intentional Tort
Real Property

Issues: Premises liability; Whether the defendants-Evergreen (the apartment complex), Radney (owner of the complex), and Hi-Tech (security company hired by Radney) had a duty to reasonably expedite police involvement where they had notice of the danger of a potential criminal act by a third person (defendant-Schaaf); MacDonald v. PKT, Inc.; Williams v. Cunningham Drug Stores, Inc.; The duty of care imposed on landlords and merchants; Butler v. Watson; Samson v. Saginaw Prof'l Bldg., Inc.; Whether plaintiff alleged sufficient facts to justify imposing a duty on defendants to notify the police of the ongoing situation taking place at Evergreen; "Vicarious liability" issues under Al-Shimmari v. Detroit Med. Ctr.; Plaintiff's claim that he was a third-party beneficiary of the provision-of-security contract; Fultz v. Union-Commerce Assoc.; Loweke v. Ann Arbor Ceiling & Partition Co.; Hill v. Sears, Roebuck & Co.
Court: Michigan Supreme Court
Case Name: Bailey v. Schaaf
e-Journal Number: 55162
Judge(s): Young, Jr., Kelly, Zahra, McCormack, and Viviano; Concurrence – McCormack; Concurring in part, Dissenting in part – Cavanagh; Dissent – Markman

Based on its historical treatment of merchants and landlords in the context of their duty as to hazards in areas under their control, the court applied the MacDonald framework to situations involving the landlord-tenant special relationship and thus, rendered consistent its "treatment of landlords' and merchants' duties when faced with imminent criminal action. Because the plaintiff alleged that defendant's hired security guards failed to contact the police when clearly on notice of an imminent risk to him," the court affirmed the Court of Appeals judgment in part. However, the court remanded the case to the Court of Appeals for its consideration of defendants-Evergreen's and Radney's vicarious liability issues under Al-Shimmari, and reconsideration of plaintiff's claims based on the provision-of-security contract between Evergreen and defendant-Hi-Tech. In 8/06, plaintiff attended an outdoor barbecue in the common area of the Evergreen apartment complex where Hi-Tech's security guards (defendants-Baker and Campbell) were patrolling the premises in a golf cart. At some point in the social event, an Evergreen resident (G) told the security guards the defendant-Schaaf was brandishing a revolver and threatening to kill someone. The security guards did not respond. Later, after G told the guards of Schaaf's behavior, they heard two gunshots. Schaaf had shot plaintiff twice in his back, rendering him a paraplegic. Plaintiff sued Evergreen, Radney, Hi-Tech, and the security guards alleging, inter alia, premises liability, negligent hiring and supervising, ordinary negligence, vicarious liability, and breach of contract. The trial court granted defendants summary disposition and dismissed plaintiff's claims. The Court of Appeals affirmed in part and reversed in part. "In keeping with the common law understanding that landlords and merchants share a similar level of control over common areas that are open to their tenants and other invitees, and thus assume the same duty of reasonable care" as to those common areas, the court held that a landlord's duty as to the criminal acts of third parties "is limited to and coextensive with the duty articulated in MacDonald. Thus, a landlord has a duty to respond by reasonably expediting police involvement where it is given notice of a 'specific situation occur[ing] on the premises that would cause a reasonable person to recognize a risk of imminent harm to an identifiable invitee.'" Only when given notice of such a situation is a duty imposed on a landlord. The court noted that a landlord does not owe a duty to respond to criminal acts occurring within the tenant's leasehold because a landlord has surrendered possession and control of the leasehold to the tenant.

Justice McCormack opined that the principles of MacDonald, Williams, and the other cases the majority cited plainly governed the result here. The landlord-tenant relationship is an "archetypal special relationship" and the law imposes a duty to protect tenants from certain risks. The security guards' failure to alert the police when notified of the possibility of imminent danger was a failure the law recognizes. It constituted a violation of defendants' duty because the resulting harm was foreseeable. Defendants faced liability because the harm in question was foreseeable.

Justice Cavanagh would hold that MacDonald applies to landlord-tenant context, "which simply required the defendant-landlords to call the police if they were aware of an ongoing situation that posed an imminent risk of harm to defendants' tenants and invitees." However, the justice disagreed with the majority's analysis and its decision to limit the holding of Samson.

In his dissent, Justice Markman concluded that the majority opinion did not offer "any persuasive argument that either tenants or their social guests bear the same 'special relationship' to a residential landlord as an invitee or a patron does to a merchant, or that there is any similar entrustment of control to the landlord and consequent loss of control by tenants or their social guests to protect themselves against third-party criminal conduct." The justice would reverse the Court of Appeals opinion.

Full Text Opinion

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