In these consolidated premises liability cases, plaintiffs seek to recover for injuries they suffered when fellow concertgoers at the Pine Knob Music Theater (Pine Knob), an outdoor amphitheater that offered seating on a grass-covered hill, began pulling up and throwing pieces of sod. We granted leave to address the duty of premises owners concerning the criminal acts of third parties.
Under Mason v. Royal Dequindre, Inc., 455 Mich. 391, 566 N.W.2d 199 (1997), merchants have a duty to respond reasonably to situations occurring on the premises that pose a risk of imminent and foreseeable harm to identifiable invitees. We hold today that the duty to respond is
II. FACTUAL AND PROCEDURAL BACKGROUND
In MacDonald, plaintiff Molly MacDonald attended a concert on May 4, 1995, at Pine Knob at which several bands were performing. Pine Knob offers seating on a grass-covered hill, as well as seating in a pavilion. Plaintiff received the tickets to the concert as part of a promotional giveaway by a local radio station sponsoring the concert. When plaintiff arrived at Pine Knob, she and a friend found a spot to sit on the hill. While a band called Bush was performing, some patrons began pulling up sod and throwing it.
Before the concert, the event coordinator had asked the bands to stop performing in the event that the audience members began throwing sod, and announce that the sod throwing must stop. There were also flyers posted in the dressing rooms of the bands requesting the bands to make an announcement to the audience to stop throwing sod. Pursuant to that request, the band finished the song and stopped performing, making an announcement that unless the sod throwing stopped, the concert would not continue. The crowd complied with the band's request, and several individuals were ejected from Pine Knob for throwing sod.
While the next band, the Ramones, was performing, the sod throwing resumed. After that band refused to make an announcement to stop throwing sod, the event coordinator turned on the house lights. When the sod throwing continued, the band made an additional announcement demanding that it stop. Once again, several individuals who were involved in throwing sod were ejected from the theater. During the second incident of sod throwing, plaintiff fractured her ankle when she fell while attempting to avoid being struck by a piece of sod. Discovery materials indicated that there had been two sod-throwing incidents at previous concerts at Pine Knob, one incident in 1991, at a Lollapalooza concert, and another incident in 1994, at a Metallica concert.
Plaintiff filed a complaint against, among others, PKT, Inc., also known as Pine Knob Music Theater and Arena Associates.
Finally, the Court of Appeals held that the trial court abused its discretion in denying plaintiff's motion to amend her complaint pursuant to MCR 2.116(I)(5). The Court of Appeals stated that the proposed claims were legally sufficient and were justified by the evidence. This Court granted Pine Knob's application for leave to appeal.
In Lowry, plaintiff and a friend attended a Suicidal Tendencies/Danzig/Metallica concert at Pine Knob on June 22, 1994. Plaintiff suffers from multiple sclerosis and uses the aid of two canes or a wheelchair. Plaintiff was seated in the handicapped section at Pine Knob, which is located at the rear of the pavilion immediately adjacent to the grass seating. During the performance of Danzig, patrons seated on the lawn of Pine Knob began throwing sod. Plaintiff was allegedly struck with sod on the head and shoulders. Within a few minutes, the band stopped performing and an announcement was made requiring individuals to stop or the concert would not continue. Alcohol sales were cut off. Deposition testimony indicated that the sod throwing stopped within ten to fifteen minutes and numerous individuals were ejected from Pine Knob.
Plaintiff brought a negligence action against Pine Knob, as well as Cellar Door Productions of Michigan, Inc., the producer of the concert, alleging that defendants failed to protect plaintiff from the foreseeable dangers of sod throwing by patrons. Plaintiff also alleged that defendants violated his rights under the Michigan Handicapper's Civil Rights Act (MHCRA), (now: Persons With Disabilities Civil Rights Act), M.C.L. § 37.1101 et seq., by failing to adequately accommodate his disability.
Defendants moved for summary disposition under MCR 2.116(C)(8) and (10), arguing
The Court of Appeals affirmed in an unpublished per curiam decision.
One panel member dissented in part, arguing that "[a]lthough plaintiff did not present evidence regarding the number of previous sod throwing incidents or the dates and circumstances surrounding those previous occurrences, plaintiff nonetheless established the existence of a genuine issue of material fact with respect to whether the sod throwing incident at issue in this case was foreseeable." The dissent further suggested that the reasonableness of Pine Knob's conduct with respect to protecting the patrons with disabilities from injuries should have been submitted to a jury.
This Court granted plaintiff's application for leave to appeal.
III. STANDARD OF REVIEW
We review de novo a trial court's decision to grant or deny summary disposition. The Herald Co. v. Bay City, 463 Mich. III, 117, 614 N.W.2d 873 (2000). A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of the complaint and allows consideration of only the pleadings. Wade v. Dep't of Corrections, 439 Mich. 158, 162, 483 N.W.2d 26 (1992). The motion should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Id. at 163, 483 N.W.2d 26.
A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual
IV. THE DUTIES OF A MERCHANT
We recognized in Mason the general rule that merchants "do not have a duty to protect their invitees from unreasonable risks that are unforeseeable." Id. at 398, 566 N.W.2d 199. Accordingly, we held that a duty arises only on behalf of those invitees that are "`readily identifiable as [being] foreseeably endangered.'" Id., quoting Murdock v. Higgins, 454 Mich. 46, 58, 559 N.W.2d 639 (1997). We further held that the measures taken must be reasonable. Mason at 405, 566 N.W.2d 199. In the instant cases, we are called upon to further clarify the duty that we articulated in Mason.
Mason and its companion case, Goodman v. Fortner, both involved altercations that began in bars. In Mason, one of the plaintiff's friends, Dan Kanka, was involved in an altercation with another man, Thomas Geoffrey. The plaintiff was in a different area of the bar when the fight began, and only witnessed its conclusion. The bar's bouncers immediately ejected Geoffrey and, in an attempt to avoid more conflict, instructed Kanka to remain until Geoffrey left the premises. When the plaintiff left the bar some time later, Geoffrey assaulted him in the parking lot, breaking his nose and jaw. Id. at 393-394, 566 N.W.2d 199. We upheld the dismissal of the plaintiff's resulting premises liability claim on the ground that, because the plaintiff was not near the area where the initial fight occurred (and the defendant had no knowledge that the plaintiff was associated with either Kanka or Geoffrey), the defendant had no reason to believe that the plaintiff was in danger. Even viewed in a light most favorable to the plaintiff, we held that the facts did not support a finding that the attack on the plaintiff was foreseeable. Id. at 404, 566 N.W.2d 199.
In Goodman, the plaintiff's girlfriend, Theresa Woods, was involved in a bar room scuffle with the plaintiff's former girlfriend and mother of his child, Joslynn Lewis. The fight continued in the parking lot and then moved back inside the bar, with two of Lewis' relatives joining the fray. Despite repeated requests that they call the police, the bar's bouncers refused, although they did remove Lewis and her group from the bar. When the plaintiff and Woods attempted to leave the bar, Lewis and her friends were waiting out in the parking lot, yelling at the plaintiff and threatening to kill him. There was evidence that the bouncers standing at the door could undoubtedly hear the commotion. One of Lewis' friends eventually shot the plaintiff in the chest. Id. at 395-396, 566 N.W.2d 199. We upheld a jury verdict in the plaintiff's favor on the ground that a reasonable jury could find that the harm to the plaintiff was foreseeable. We also held that a reasonable jury could find that the defendant did not take reasonable steps to prevent the plaintiff's injury. Id. at 404-405, 566 N.W.2d 199.
As we made clear in Williams and Scott, a merchant has no obligation generally to anticipate and prevent criminal acts against its invitees. Indeed, as the Court of Appeals panel in Lowry correctly noted, we have never recognized as "foreseeable" a criminal act that did not, as in Goodman, arise from a situation occurring on the premises under circumstances that would cause a person to recognize
A premises owner's duty is limited to responding reasonably to situations occurring on the premises because, as a matter of public policy, we should not expect invitors to assume that others will disobey the law. A merchant can assume that patrons will obey the criminal law. See People v. Stone, 463 Mich. 558, 565, 621 N.W.2d 702 (2001), citing Prosser & Keeton, Torts (5th ed.) § 33, p. 201; Robinson v. Detroit, 462 Mich. 439, 457, 613 N.W.2d 307 (2000); Buczkowski v. McKay, 441 Mich. 96, 108, n. 16, 490 N.W.2d 330 (1992); Placek v. Sterling Hts., 405 Mich. 638, 673, n. 18, 275 N.W.2d 511 (1979). This assumption should continue until a specific situation occurs on the premises that would cause a reasonable person to recognize a risk of imminent harm to an identifiable invitee. It is only a present situation on the premises, not any past incidents, that creates a duty to respond.
Subjecting a merchant to liability solely on the basis of a foreseeability analysis is misbegotten. Because criminal activity is irrational and unpredictable, it is in this sense invariably foreseeable everywhere. However, even police, who are specially trained and equipped to anticipate and deal with crime, are unfortunately unable universally to prevent it. This is a testament to the arbitrary nature of crime. Given these realities, it is unjustifiable to make merchants, who not only have much less experience than the police in dealing with criminal activity but are also without a community deputation to do so, effectively vicariously liable for the criminal acts of third parties.
Having established that a merchant's duty is to respond reasonably to criminal acts occurring on the premises, the next question is what is a reasonable response? Ordinarily, this would be a question for the factfinder. However, in cases in which overriding public policy concerns arise, this Court may determine what constitutes reasonable care. See Williams, supra at 501, 418 N.W.2d 381, citing Moning v. Alfono, 400 Mich. 425, 438, 254 N.W.2d 759 (1977). Because such overriding public policy concerns exist in the instant cases, the question of reasonable care is one that we will determine as a matter of law. Williams, supra at 501, 418 N.W.2d 381. We now make clear that, as a matter of law, fulfilling the duty to respond requires only that a merchant make reasonable efforts to contact the police. We believe this limitation is consistent with the public policy concerns discussed in Williams.
In Williams, supra, the plaintiff was shopping in the defendant's store when an armed robbery occurred. As the plaintiff, a store patron, attempted to flee, the robber shot him. The plaintiff sued the defendant store, alleging that it breached its
The rationale of this Court in Williams for not requiring merchants to provide security guards to protect invitees from the criminal acts of third parties is the same rationale for not imposing on merchants any greater obligation than to reasonably expedite the involvement of the police. That is, the duty to provide police protection is vested in the government. Williams, supra at 501, 418 N.W.2d 381. To require a merchant to do more than take reasonable efforts to expedite the involvement of the police, would essentially result in the duty to provide police protection, a concept that was rejected in Williams.
In Scott, supra at 452, 506 N.W.2d 857, we expanded on this theme by holding that, even where a merchant voluntarily takes safety precautions in an effort to prevent criminal activity, "[s]uit may not be maintained on the theory that the safety measures are less effective than they could or should have been." Consequently, in any case in which a factfinder, be it the trial court or a jury, will be assessing the reasonableness of the measures taken by a merchant in responding to an occurrence on the premises, a plaintiff may not present evidence concerning the presence or absence of security personnel, or the failure to otherwise resort to self-help, as a basis for establishing a breach of the merchant's duty. A jury thus must be specifically instructed in accordance with the principles of Williams and Scott as we have outlined them here.
To summarize, under Mason, generally merchants "have a duty to use reasonable care to protect their identifiable invitees from the foreseeable criminal acts of third parties." Id. at 405, 566 N.W.2d 199. The duty is triggered by specific acts occurring on the premises that pose a risk of imminent and foreseeable harm to an
The Court of Appeals in MacDonald held that plaintiff presented sufficient evidence to create a genuine issue of material fact concerning whether the harm to her was foreseeable. We agree that plaintiff created a jury—submissible issue concerning whether she was readily identifiable as being foreseeably endangered once the sod throwing began. However, we reject the Court of Appeals reliance on incidents previous to the day in question as a basis for concluding that sod throwing was "foreseeable" in this instance. The Mason duty, as clarified here, is not based upon the general question whether a criminal act was foreseeable, but, rather, once a disturbance occurs on the premises, whether a reasonable person would recognize a risk of imminent harm to an identifiable invitee. As stated, a merchant has no obligation to anticipate the criminal acts of third parties.
The Court of Appeals also held that a genuine issue of material fact exists concerning whether Pine Knob took reasonable measures in response to the sod throwing. We disagree. Because Pine Knob already had the police present at the concert, Pine Knob fully discharged its duty to respond. Thus, we reverse the Court of Appeals decision denying Pine Knob's motion for summary disposition and reinstate the trial court's decision to grant summary disposition for Pine Knob pursuant to MCR 2.116(C)(8) and (10).
We also reverse the Court of Appeals decision that the trial court abused its discretion in denying plaintiff's motion to amend her complaint to add certain theories including design defect, nuisance, and thirdbeneficiary claims and to more specifically set forth her negligence claim. We conclude that plaintiff's amendment would have been futile.
In contrast with MacDonald, the Court of Appeals panel in Lowry relied solely on the absence of evidence concerning previous incidents of sod throwing to uphold the trial court's decision granting summary disposition for Pine Knob. This too was error. Whether Pine Knob could have anticipated that sod throwing would be a problem does not answer the legally relevant question whether plaintiff Lowry was foreseeably endangered once sod throwing began on the day of plaintiff's attendance. However, in accordance with this opinion, because Pine Knob already had the police at the concert, we hold that Pine Knob had no further obligation. Pine Knob discharged its duty to respond by having police present once the sod throwing began. Thus, we affirm the Court of Appeals affirmance of the trial court's decision to grant summary disposition in favor of Pine Knob. We also affirm the Court of Appeals decision to uphold summary disposition in Pine Knob's favor on plaintiff's handicapper discrimination claim. We
VI. RESPONSE TO THE DISSENT
The dissent accuses us of "uproot[ing] the entire basis for imposing a duty on merchants to protect their invitees that we expressed in Mason ...." Op. p. 46. We disagree.
The principal difference between the dissent and the majority lies in our respective attempts to reconcile our several premises liability cases and the policies that undergird them. The dissent seeks in effect to limit or ignore the holdings of Williams and Scott. The majority refuses to do so.
In its effort to explain away the tort duty policy choices this Court adopted in Williams and Scott, the dissent reads into Mason rationales and holdings the dissent would have liked Mason to have adopted but which that opinion plainly did not embrace.
We believe that the actual policy rationales of Williams and Scott must be reconciled with the merchant's duty set forth in Mason. In reconciling these cases, we seek to establish a clear rule. We reject the premises liability rule that the dissent proposes because (1) it provides little guidance to any premises owner concerning its obligations under law and (2) despite its claims to the contrary, the dissent's rule would unfairly expose merchants in high-crime areas to excessive tort liability and increase the pressure on commercial enterprises to remove themselves from our troubled urban and high-crime communities. Mason undeniably cites 2 Restatement Torts, 2d, § 344, and comment f.
The dissent attempts to distinguish Williams from Mason and the instant cases by explaining that Williams involved "random crime" "unrelated to the character of the merchant's business", op., p. 47, and asserting that the sod-throwing incidents in these cases were "related" to Pine Knob's business because the nature of the harm was created by the "character" of its business. We do not agree with the dissent's focus on the "randomness" or spontaneity of a criminal act as being a relevant factor in determining whether an occurrence was foreseeable. The key inquiry is not whether the criminal act was "random," but rather whether, as stated in Mason, the merchant has reason to recognize a risk of imminent harm to an identifiable invitee. In Williams, the merchant had no reason to expect the criminal attack. In Mason, we distinguished Williams and Scott by explaining that in Williams and Scott "[t]he merchants had had no previous contact with the assailants and could not have determined that the plaintiffs were in danger." Mason, supra at 402, 566 N.W.2d 199. The rule set forth in this opinion is thus consistent with Mason as well as Williams and Scott: A merchant should not be expected to anticipate any type of criminal activity, whether "random" or otherwise, before there is some specific activity on the premises creating a foreseeable risk of imminent harm to an identifiable invitee.
Moreover, none should be mistaken that the test of "relatedness" proposed by the dissent would apply, if not now, then very soon, to virtually all criminal acts in commercial establishments. It cannot be questioned that there can always be, given crime's unfortunate pervasiveness, a plausible argument that the criminal being drawn to the business enterprise at all makes it "related" in such a way as to trigger liability.
Thus, the dissent's rule would have its most pernicious and devastating effect on
For these policy reasons, we, as the courts before us, decline to adopt the dissent's proposed rule.
Consistent with our decisions in Williams, Scott, and Mason, we conclude that merchants have a duty to respond reasonably to situations occurring on the premises that pose a risk of imminent and foreseeable harm to identifiable invitees. We hold that the duty to respond is limited to reasonably expediting the involvement of the police, and that there is no duty to otherwise anticipate the criminal acts of third parties. Finally, we reaffirm that merchants are not required to provide security personnel or otherwise resort to self-help in order to deter or quell such occurrences.
In MacDonald, we reverse the Court of Appeals decision denying summary disposition. In Lowry, the decision of the Court of Appeals to grant summary disposition for Pine Knob is affirmed.
CORRIGAN, C.J., and WEAVER, TAYLOR, and MARKMAN, JJ., concurred with YOUNG, J.
MICHAEL F. CAVANAGH, J. (dissenting).
The majority holds that under Mason v. Royal Dequindre, Inc., 455 Mich. 391, 566 N.W.2d 199 (1997), a merchant has a duty to "respond reasonably to situations occurring on the premises that pose a risk of imminent and foreseeable harm to identifiable invitees," and the duty to respond entails nothing more than the merchant's attempt to contact the police. Op. at 34. This artful formulation of the Mason duty removes any inquiry into prior similar occurrences as part of the foreseeability analysis, reducing the foreseeability question to whether a merchant should have known that an ongoing occurrence on the premises could have harmed an identifiable invitee. Because the majority created this formulation of the Mason duty with
In Mason, we had to determine whether merchants have a common-law duty to protect their patrons from criminal acts of third parties. To resolve this question, we examined the rationale behind imposing a duty on a person to protect another person endangered by a third party's conduct. Generally, a person has no duty to protect another person endangered by a third party's conduct unless there is a special relationship between those persons. The reason for this exception to the general noduty rule when a special relationship is present is based on control. As we explained, "In each situation one person entrusts himself to the control and protection of another, with a consequent loss of control to protect himself. The duty to protect is imposed upon the person in control because he is best able to provide a place of safety." Mason at 398, 566 N.W.2d 199. Thus, while merchants are not insurer's of their invitees' safety, we recognized that courts will impose a duty on a merchant to protect its invitees, like the duty imposed when a special relationship is present, when they are "readily identifiable as [being] foreseeably endangered." Id. at 398, 566 N.W.2d 199, quoting Murdock v. Higgins, 454 Mich. 46, 58, 559 N.W.2d 639 (1997).
After exploring the basis for imposing a duty on a merchant to protect its invitees, we explained that these same principles are embodied in 2 Restatement Torts, 2d, § 344, pp. 224-225, and comment f to § 344, pp. 225-226. The Restatement further explains how control and foreseeability govern a landowner's liability to its invitees. Section 344 provides:
Comment f to § 344 states:
In quoting § 344 and comment f, we recognized that the imposition of a duty on a merchant to protect its invitees from criminal conduct of third parties is contingent upon whether the character of his business, or past experience either in general or at a specific time, gives the merchant knowledge or reason to know that those acts may occur again. As noted in the quoted sections of the Restatement,
Following these premises liability principles, we held that "merchants can be liable in tort for failing to take reasonable measures to protect their invitees from harm caused by the criminal acts of third parties. The harm must be foreseeable to an identifiable invitee and preventable by the exercise of reasonable care." Id. at 393, 559 N.W.2d 639. Clearly, our holding in Mason was premised on tort principles that require a look into the character of the merchant's business and prior similar occurrences to determine whether the harm is foreseeable.
The majority introduces a version of the Mason duty that ignores the basis of our holding in Mason and instead holds that under Mason, a merchant has a duty to respond to ongoing frays on the premises, and the duty is only to make an effort to contact the police. This formulation essentially uproots the entire basis for imposing a duty on merchants to protect their invitees that we expressed in Mason by extinguishing the consideration of the character of the merchant's business and prior similar occurrences when deciding if the harm was foreseeable. Instead, the majority limits the foreseeability question to whether this particular fray would have harmed this particular plaintiff, without citing any legal support for its decision to alter the duty.
In reformulating the Mason duty, the majority overrules Mason to the extent that it relied on § 344 and comment f of the Restatement which clearly refutes the majority's clarified version of the Mason duty. Op. at 39, n. 10. The reason the majority states for overruling this part of Mason is that § 344 and comment f are contrary to our holding in Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 418 N.W.2d 381 (1988). In Williams, we stated that merchants are not ordinarily responsible for criminal acts of third parties because it is against public policy to require a merchant to anticipate crime in the community that may harm its invitees. The majority claims that the only way to reconcile Williams with the Mason holding that a merchant may be liable when the criminal act that harmed its invitee was foreseeable is to say that a merchant only has a duty to "respond reasonably to such a situation." Op. at 39. Furthermore, the majority concludes that the duty entails only making an effort to contact the police because Williams prevents the imposition of any further act. The majority fails to recognize, however, that a new formulation of the Mason duty is not necessary in light of Williams because we distinguished Williams when we decided Mason.
According to the majority, Williams closed the door to applying § 344 when deciding whether a merchant has a duty to protect its invitees from criminal acts because merchants cannot anticipate crime. A close reading of Williams, however, reveals that is not true. In Williams, we recognized § 344, but refused to apply it to the facts because the nature of the harm, random crime in the community unrelated to the merchant's business, presented the merchant with no degree of control over its prevention. Williams at 501, n. 15, 418 N.W.2d 381. Thus, contrary to the majority's assertion, we recognized in Williams that application of § 344 depends on the facts of a case, i.e., the nature of the harm and degree of control a merchant had in each case.
In Mason, we discussed the Williams' decision and cited Justice Levin's dissent in Alexander v. American Multi-Cinema, 450 Mich. 877, 540 N.W.2d 674 (1995), as
Contrary to the majority's assertion that the Mason holding is inconsistent with Williams, in Mason we recognized Justice Levin's dissent in Alexander as the method to distinguish the Williams holding and created a duty based on § 344 that essentially focused on the nature of the harm, the foreseeability of the harm, and the control a merchant has over the harm. We implicitly noted that a careful consideration of the facts in each case is essential to determine whether a § 344 analysis is justified. If the nature of the harm is random and spontaneous, and thus unrelated to the character of the merchant's business, the merchant cannot be expected to foresee its occurrence, and reference to prior similar occurrences is not justified. If the nature of the harm was created by the character of the merchant's business, reference to prior similar occurrences is justified because a merchant can be expected to foresee such harm happening again, in light of his prior experience with such acts. Accordingly, we concluded that "merchants have a duty to use reasonable care to protect their identifiable invitees from the foreseeable criminal acts of third parties." Mason at 405, 566 N.W.2d 199. Our decision in Mason was therefore clearly based on a careful consideration of the common-law tort principles of control and foreseeability, as articulated in § 344, and how they coexist with the holding in Williams. Thus, clarification of the Mason duty is not necessary, as that decision clearly acknowledged how the control and foreseeability origins of § 344 may apply to certain factual scenarios without violating our holding in Williams.
As the preceding discussion illustrates, premises liability law contains many nuances
(1) Traditional Premises Liability
Traditionally, a merchant has had a duty to protect its invitees from defects or dangerous conditions on the land of which the merchant knew or had reason to know.
(2) Hybrid Premises Liability
Under hybrid premises liability, a merchant has a duty to protect its invitees from activities involving actors on the premises of which a merchant knew or had reason to know. The tricky part, however, is when the activity consists of criminal acts by third parties. If the activity on the land is a criminal act, it must be determined whether the character of the merchant's business and the nature of the act are of a sort that a merchant could be expected to anticipate. If the nature of the criminal act is random, spontaneous, and thus unrelated to the merchant's business and the invitee's purpose for being there, the situation falls into category three, discussed below. If, however, the nature of the criminal act is not random or spontaneous, and is related to the merchant's business and the invitee's purpose on the premises, as explained in Mason and Justice Levin's dissenting opinion in Alexander, we resort to the control and foreseeability origins of § 344 to determine whether the merchant has a duty. See Prosser & Keeton, Torts (5th ed), § 61, p. 428 (stating that a possessor of land is required to take action when he has reason to believe, from what he has observed or from past experience, that the conduct of others on the land will be dangerous to other invitees, but not when the landowner cannot anticipate the harm).
(3) The Exception To Hybrid Liability
The exception to hybrid liability is when there is a criminal act by third parties on the premises, but the act is random and spontaneous, having no relation to the merchant's business other than that it is a business, the merchant has no duty. In the exception situation, the random, spontaneous nature of the act removes any degree of control a merchant has over the act occurring, thus making any application of the control and foreseeability origins of § 344 improper. See, e.g., Williams.
The facts of these cases must be examined to determine which of the three premises liability categories governs. Because the harm did not result from a physical defect on the premises, the act does not fall within the traditional premises liability category. Rather, the harm resulted from activity on the land, potentially criminal in nature, which requires us to decide whether the nature of the act qualifies it as a hybrid or exception situation. The character of defendant Pine Knob's business created the risk of harm to its invitees, by subjecting its patrons to view concerts in a venue where sod throwing had previously occurred. The sod throwing in these cases was, therefore, not random or spontaneous, was related to the invitee's purpose on the premises, qualifying these cases under the hybrid category, and thus justifies applying the control and foreseeability origins of § 344.
Pine Knob charges its patrons to enter its forum to watch concerts, where part of the seating area for patrons is a sod-covered hill. Once the patron sets foot inside the venue, he has entrusted himself to the control and protection of Pine Knob, and his ability to protect himself from activities
Today the majority embarks on the unnecessary journey of clarifying the duty a merchant has to protect its invitees from criminal acts of third parties, as discussed in Mason. This clarification takes premises liability into an unfounded direction with far—reaching consequences.
In accordance with the original, unclarified Mason duty, in both of the instant cases I would deny summary disposition so that a jury may determine (1) whether the sod throwing was foreseeable, (2) whether the plaintiffs were identifiable invitees, and (3) whether defendant Pine Knob took reasonable measures to protect its invitees from the harm.
MARILYN J. KELLY, J., concurred with MICHAEL F. CAVANAGH, J.
Defendant humane society allows persons interested in adopting animals to observe the animals through cages. There is a separate "dog wing" in which all the dogs are kept in individual cages. Patrons on the premises interested in adopting a dog are allowed access to the dog wing. A patron who is visiting the dog wing gets increasingly passionate about the dogs being cooped up and breaks open each cage, setting the dogs free. The dogs become scared and attack a family who was there adopting their new pet. Unfortunately, one of the children is severely injured. The humane society is familiar with this "passionate patron" syndrome, and it in fact occurred the previous day, killing a patron. Luckily for the humane society, under the majority's clarified Mason duty, this previous attack will not be considered, regardless of the number of times the attacks have happened, the humane society's experience with controlling the animals on its premises, and the experience the humane society has with the harm caused by "passionate patrons." Rather, in the midst of watching the dogs viciously attacking patrons, all the humane society must do to avoid liability to the injured patrons is to make the effort to call the police. Thus, even though the character of the business created the risk of harm, the humane society had past experience with such mishaps, and the degree of control the humane society has over its patrons was great, there is no duty to protect. I cannot agree that this is a proper formulation of the duty.