Bailey v. Schaaf

 (2001) to the landlord-tenant context. In addition
       the Court of Appeals rejected Bailey’s argument that he was a third-party beneficiary of the
       provision-of-security contract between Hi-Tech and Evergreen and that Hi-Tech did not owe
       Bailey a duty that was separate and distinct from Hi-Tech’s duties under the original 2003
       contract between Hi-Tech and Evergreen that was in effect at the time of Bailey’s injuries. The
       Supreme Court granted defendants’ application for leave to appeal and the parties were asked to
       address whether the Court of Appeals erred when it extended the MacDonald holding to the
       landlord-tenant context. Bailey’s application for leave to cross-appeal remained pending.

491 Mich 924

(2012).

In an opinion by Chief Justice YOUNG, joined by Justices KELLY, ZAHRA, MCCORMACK,
and VIVIANO, the Supreme Court held:
Consistent with the limited duty of care recognized in MacDonald as applying to the
merchant-invitee relationship, landlords have a duty to reasonably expedite police involvement
when put on notice of criminal acts occurring in common areas that pose a risk of imminent and
foreseeable harm to an identifiable tenant or invitee.

1. The common law imposes a duty of care when a special relationship exists, which is
predicated on an imbalance of control. Michigan law has recognized that a special relationship
exists between owners and occupiers of land and their invitees, including between a landlord and
its tenants and their invitees and between a merchant and its invitees. The common law
establishes that a landlord and merchant have coextensive duties to protect invitees and tenants
from physical hazards on the premises. The element of control is essential in establishing a
landlord or merchant’s duty over the premises. Where tenants, their invitees, or a merchant’s
invitees lack control over certain premises, the landlord or merchant bears the burden of control
and has the duty to keep such areas reasonably safe. Like the duty owed by merchants to their
invitees as articulated in MacDonald, a landlord owes a duty to respond when put on notice of a
risk of imminent harm to an identifiable tenant or invitee in the common areas of the landlord’s
premises. If and when this duty is triggered, the duty only requires a landlord to reasonably
expedite police involvement. The duty is imposed on the landlord only when given notice to
such a situation that is occurring in an area within its control; the landlord does not have a duty
to respond to criminal acts occurring within the leasehold of the tenant.

2. In this case, the Court of Appeals properly held that defendants were not entitled to
summary disposition under MCR 2.11(C)(8) because, accepting Bailey’s allegation as true,
defendants had a duty to reasonably expedite the involvement of the police. Bailey also alleged
sufficient facts involving the existence of a contract for security services between the security
company and the landlord. The facts alleged would establish an agency relationship, imputing to
the landlord Green’s notice to Baker and Campbell of the ongoing situation and placing
defendants on notice that their invitees and tenants faced a specific and imminent harm.

3. The case is remanded to the Court of Appeals for consideration of Evergreen and
Radney’s vicarious liability issues under Al-Shimmari v Detroit Medical Ctr,

477 Mich 280

731 NW2d 29

 (2007), including whether the issues were properly preserved. With regard to Bailey’s
application for leave to appeal as cross-appellant, part V(E) of the Court of Appeals judgment,
which upheld the trial court’s dismissal of Bailey’s negligence claims against Hi-Tech on the
basis of the contract between Hi-Tech and Evergreen, is vacated and the case was remanded to
the Court of Appeals for reconsideration of that issue in light of Loweke v Ann Arbor Ceiling &
Partition Co, LLC,

489 Mich 157

809 NW2d 553

 (2011) and Hill v Sears, Roebuck & Co,

492 Mich 651

822 NW2d 190

(2012). Bailey’s application for leave to appeal as cross-appellant is
denied in all other respects.

Court of Appeals judgment affirmed in part, vacated in part, and the case remanded to the
Court of Appeals for further proceedings consistent with the opinion.

Justice MCCORMACK, concurring, agreed that the landlord-tenant relationship is a special
relationship and that the security guards breached a duty to Bailey by failing to alert law
enforcement when notified of the possibility of imminent danger. The landlord-tenant
relationship is a special relationship; as a result, the law imposes a duty on landlords to protect
tenants from certain risks. Moreover, this relationship involves a voluntary market exchange.
Because the costs of maintaining security are ultimately passed off to tenants, the question of
how much security a landlord should provide is a question for the markets to decide.

Justice CAVANAGH, concurring in part and dissenting in part, agreed that the minimal
duty that MacDonald imposed on merchants should be applied to landlords on the basis of the
landlord-tenant relationship. Landlords share a special relationship with their tenants and
invitees, which implicates a landlord’s duty to protect against the conduct of third parties that
pose an imminent and foreseeable risk of harm within the common areas of the premises. Unlike
the majority’s conclusion that the common law has recognized the landlord-tenant special
relationship within the context of imposing a duty to protect another from third-party conduct,
imposition of the duty is justified by analyzing the nature of the landlord-tenant relationship,
which is the critical factor to be considered when imposing a duty to protect another. Michigan’s
caselaw regarding a merchant’s duty to protect its invitees from the conduct of a third party has
either been silent or expressly declined to opine as to whether a landlord has a similar duty to
protect its tenants and invitees.

Justice MARKMAN, dissenting, would have held that under the common law there is no
legal duty to aid or protect another from third-party criminal conduct unless a "special
relationship" exists in which a person can be said to have entrusted himself to the control and
protection of another person with a consequent loss of control to protect himself. The majority
failed to satisfy its burden of demonstrating compelling reason for why Michigan’s common law,
which has not recognized a landlord-tenant special relationship establishing a legal duty to aid or
protect, should be altered to further apportion among those who have perpetrated no criminal
conduct, legal responsibility for the harms caused by those who have perpetrated criminal
conduct. Justice MARKMAN would continue to adhere to the common-law rule that it is the
criminal perpetrator who is legally and exclusively responsible for the harms caused by his or her
criminal conduct.

Opinion Robert P. Young, Jr. Michael F. Cavanagh
Stephen J. Markman
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano

FILED JULY 30, 2013

STATE OF MICHIGAN

SUPREME COURT

DEVON SCOTT BAILEY,

Plaintiff-Appellee/
Cross-Appellant,

v No. 144055

STEVEN GEROME SCHAAF,

Defendant,
and

T.J. REALTY, INC., d/b/a HI-TECH
PROTECTION, TIMOTHY JOHNSON,
CAPTAIN WILLIAM BOYD BAKER,
CHRISTOPHER LEE CAMPBELL,

Defendants-Appellees,

and

EVERGREEN REGENCY TOWNHOMES,
LTD., and RADNEY MANAGEMENT &
INVESTMENTS,

Defendants-Appellants/Cross-
Appellees.
BEFORE THE ENTIRE BENCH

YOUNG, C.J.
Our common law has long imposed the same duty of care on landlords and

merchants to remedy physical defects in premises over which they exert control. This

consistency is premised on the similar degree of control both landlords and merchants

exercise over the premises. Where third parties commit criminal acts against tenants and

invitees in these controlled areas, landlords and merchants share a similar, albeit lesser,

degree of control because of the inherent unpredictability of criminal conduct. Such

unpredictability requires the imposition of a duty concomitant with the decreased amount

of control. In MacDonald v PKT, Inc,1 we held that Michigan law imposes a duty on a

merchant only when the merchant has notice that a third party’s criminal acts pose a risk

of imminent and foreseeable harm to an identifiable invitee. In such a situation, the

merchant’s duty to that invitee is limited to reasonably expediting involvement of the

police. Recognizing that landlords and merchants exert similar degrees of control over

their premises, and cognizant of our historical and consistent treatment of their duty to

remedy physical defects, today we make clear that landlords owe the same limited duty

of care when put on notice of criminal acts that pose a risk of imminent and foreseeable

harm to an identifiable tenant or invitee—a duty to reasonably expedite police

involvement.

In this case, because the plaintiff alleged that the landlord’s agents were informed

of an imminent threat of criminal conduct against him and the landlord failed to contact

1
MacDonald v PKT, Inc,

464 Mich 322, 338

(2001).

2
the police after such notice, we affirm the judgment of the Court of Appeals in part and

remand to the Court of Appeals for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND
Evergreen Regency Townhomes, LTD (Evergreen) is located in Flint, Michigan,

and is owned and operated by Radney Management & Investments, Inc. (Radney). In

2003, Radney entered into a contract with Hi-Tech Protection (Hi-Tech) to provide

Evergreen with security personnel to patrol the premises.2 In the summer of 2006,

Radney and Hi-Tech negotiated a new contract with an effective date of August 28, 2006.

On August 4, 2006, plaintiff, Devon Bailey, attended an outdoor social gathering

in the common area of Evergreen’s apartment complex, where Hi-Tech’s security guards

William Baker and Christopher Campbell were patrolling the premises in a golf cart. At

one point during the social event, Evergreen resident Laura Green informed the security

guards that defendant Steven Schaaf was brandishing a revolver and threatening to kill

someone. The security guards did not respond. Sometime after Green informed the

security guards of Schaaf’s behavior, the security guards heard two gunshots. Schaaf had

shot plaintiff twice in his back, rendering plaintiff a paraplegic.

Plaintiff filed a civil suit against Schaaf,3 Evergreen, Radney, and Hi-Tech, its

owner, and the two security guards on duty at the time of the incident. Plaintiff alleged

2
T.J. Realty, Inc. conducted business under the assumed name of Hi-Tech. Timothy
Johnson is the President of Hi-Tech and the owner of T.J. Realty, Inc.
3
Schaaf pleaded nolo contendere to various criminal charges and is currently
incarcerated. In the instant civil action against defendant Schaaf, the trial court entered a
default judgment against Schaaf; as a result, his civil liability is not currently at issue.

3
that the security guards, Baker and Campbell, were agents of Hi-Tech, and that Hi-Tech

was an agent of Radney and Evergreen. Plaintiff asserted multiple claims against

defendants on the basis of various theories of liability, including premises liability,

negligent hiring and supervising, ordinary negligence, vicarious liability, and breach of

contract. Defendants filed a motion for partial summary disposition under MCR

2.116(C)(8), arguing that no defendant owed plaintiff any duty. Plaintiff also filed a

motion for partial summary disposition under MCR 2.116(C)(10), asserting that as a

matter of law defendants Radney, Evergreen, and Hi-Tech owed plaintiff a duty on the

basis of the contract to provide security services. The Genesee Circuit Court granted

defendants’ motion and denied plaintiff’s motion, which resulted in the dismissal of

plaintiff’s claims.

The Court of Appeals affirmed in part and reversed in part the trial court’s order.4

Regarding plaintiff’s premises liability claim against defendants Evergreen and Radney,

the Court of Appeals held that defendants owed plaintiff a duty to call the police in

response to an ongoing situation on the premises, extending this Court’s decision in

MacDonald to the landlord-tenant context.5 However, the Court of Appeals rejected

plaintiff’s argument that he was a third-party beneficiary of the provision-of-security

contract between Hi-Tech and Evergreen, holding that the parties’ contract on which

plaintiff relied—which had an effective date of August 28, 2006—was not in effect on

4
Bailey v Schaaf,

293 Mich App 611

810 NW2d 641

 (2011)
5

Id. at 640-642

.



                                              4
August 4, 2006, at the time of plaintiff’s injuries.6     Finally, the Court of Appeals,

applying Fultz v Union-Commerce Assoc,7 held that Hi-Tech did not owe plaintiff a duty

that was separate and distinct from Hi-Tech’s duties under the original 2003 contract

between Hi-Tech and Evergreen that was in effect at the time of plaintiff’s injuries.8

         Defendants Radney and Evergreen filed an application for leave to appeal in this

Court, arguing that the Court of Appeals erred by extending MacDonald to the landlord-

tenant context, or, alternatively, that defendants were not vicariously liable for the

security guards’ negligence because the security guards were not their agents. Moreover,

even if the security guards were defendants’ agents, defendants argue that they could not

be liable as principals under Al-Shimmari v Detroit Medical Center.9 Plaintiff also

sought leave to cross-appeal the Court of Appeals’ holdings regarding plaintiff’s claims

that he was a third-party beneficiary of the contract between Evergreen and Hi-Tech, and

that Hi-Tech owed plaintiff a duty that was separate and distinct from its contractual

obligations to Evergreen.

         We granted defendants’ application for leave to appeal and asked the parties to

address

6

Id. at 625-626

.
7
  Fultz v Union-Commerce Assoc,

470 Mich 460

683 NW2d 587

 (2004). After Bailey
was submitted to the Court of Appeals, but before that Court issued its decision in the
case, this Court clarified Fultz. See Loweke v Ann Arbor Ceiling & Partition Co, LLC,

489 Mich 157

809 NW2d 553

 (2011); Hill v Sears, Roebuck & Co,

492 Mich 651

822 NW2d 190

 (2012).
8

Bailey, 293

 Mich App at 642-643.
9
    Al-Shimmari v Detroit Med Ctr,

477 Mich 280

731 NW2d 29

 (2007).



                                             5
           whether the Court of Appeals erred when it extended the limited duty of
           merchants—to involve the police when a situation on the premises poses an
           imminent risk of harm to identifiable invitees, see [MacDonald,

464 Mich at 322

]—to landlords and other premises proprietors, such as the defendant
           apartment complex and property management company.[10]

                                II. STANDARD OF REVIEW

           A motion for summary disposition under MCR 2.116(C)(8) tests the legal

sufficiency of the claim on the basis of the pleadings alone and the ruling is reviewed de

novo.11 “The motion must be granted if no factual development could justify the

plaintiff’s claim for relief.”12 When deciding a motion under MCR 2.116(C)(8), the court

must accept as true all factual allegations contained in the complaint.13 Whether a

defendant owes a particular plaintiff a duty is a question of law that this Court reviews de

novo.14 “Only after finding that a duty exists may the factfinder determine whether, in

light of the particular facts of the case, there was a breach of the duty.”15           While

ordinarily a jury determines what constitutes the breach of a duty to provide reasonable

care under the circumstances, “in cases in which overriding public policy concerns arise,

the court determines what constitutes reasonable care.”16

10
  Bailey v Schaaf,

491 Mich 924

 (2012). Plaintiff’s application for leave to appeal as
cross-appellant remained pending.

Id.

11
     Spiek v Dep’t of Transp,

456 Mich 331, 337

572 NW2d 201

 (1998).
12

13
     Simko v Blake,

448 Mich 648, 654

532 NW2d 842

 (1995).
14
     Loweke,

489 Mich at 162

.
15
     Murdock v Higgins,

454 Mich 46, 53

559 NW2d 639

 (1997).
16
     Williams v Cunningham Drug Stores, Inc,

429 Mich 495, 500-501

418 NW2d 381


                                               6
           III. HISTORY OF COMMON LAW DUTY OF LANDLORDS AND
     MERCHANTS TO REMEDY PHYSICAL DEFECTS IN AREAS UNDER THEIR
                              CONTROL
           It is a basic principle of negligence law that, as a general rule, “there is no duty

that obligates one person to aid or protect another.”17           However, our common law

imposes a duty of care when a special relationship exists.18 These special relationships

are predicated on an imbalance of control, where “one person entrusts himself to the

control and protection of another, with a consequent loss of control to protect himself.”19

Michigan law has recognized that a special relationship exists between “[o]wners and

occupiers of land [and] their invitees,” including between a landlord and its tenants and

their invitees and between a merchant and its invitees.20

           The law of torts has historically conditioned the special relationship on the control

that a possessor of premises—whether landlord or merchant—exerts over the premises.

As a result, the law of torts has treated landlords and merchants the same in the context of

their duties to maintain the physical premises over which they exercise control. In the

(1988); MacDonald,

464 Mich at 336

17 Williams, 429

 Mich at 498-499; Hargreaves v Deacon,

25 Mich 1, 4

 (1872) (“[W]here
injury arises to a person from the neglect of one, in doing his lawful business in a lawful
way, to provide against accident, the question arises at once whether he was under any
legal obligation to look out for the protection of that particular person under those
particular circumstances. For the law does not require such vigilance in all cases, or on
behalf of all persons.”), abrogated on other grounds, Stitt v Holland Abundant Life
Fellowship,

462 Mich 591, 599

614 NW2d 88

 (2000)

18 Williams, 429

 Mich at 499.
19

Id.

20
     Id. at 499-500.



                                                 7
landlord-tenant context, Justice COOLEY’s seminal treatise on torts provides that, “[i]n

case of office and apartment buildings the landlord must exercise due care to keep the

halls, stairs, passageways, and like appurtenances reasonably safe for the tenants and

their families and servants and for those who come to visit or transact business with

them.”21 Professors Prosser and Keeton confirm the same and, moreover, recognize that

landlords are “closely analogous” to merchants because they both have a duty to keep

reasonably safe from physical hazard areas over which they exert control.22

         This state’s common law has likewise historically recognized the congruence

between a landlord’s and a merchant’s duties of care concerning the physical

maintenance of premises over which they exercise control. This Court has consistently

imposed on both landlords and merchants a duty of care to keep the premises within their

control reasonably safe from physical hazard. In Butler v Watson, a poorly attached post

situated on the rear porch of a residential apartment building fell and struck a small

child.23 When considering the duties that a residential landlord owes to his tenants and

their guests, this Court reasoned that a landlord owes a duty to its tenants and “all those

who were approaching or leaving their premises for legitimate purposes” to “exercise

reasonable diligence to keep such common portions of the property in a reasonably safe



21
     3 Cooley, A Treatise on the Law of Torts (4th ed), p 219.
22
     Prosser & Keeton, Torts (5th ed), § 63, p 440.
23
  Butler v Watson,

193 Mich 322, 323-324

159 NW 507

 (1916). The child was a guest
of her grandparents who were tenants in the apartment building.



                                               8
condition . . . .”24 This Court imposed the duty because of the control that the landlord

continued to exercise over the common portion of the property:

                [I]n such circumstances[,] the landlord not having let the common
         portion of the property to any one tenant, he has reserved the control
         thereof to himself. Having thus reserved control, it is his duty to exercise
         ordinary care for the safety of those about the same, other than trespassers,
         or mere licensees.[25]

Thus, the landlord owed his tenants and their guests the duty to repair and make

reasonably safe the porch upon which plaintiff was injured because it was a common area

used by all the tenants and its control was reserved to the landlord.

         Similarly, in Goodman v Theatre Parking, Inc, a man exited his car in defendant’s

parking lot and stepped on a cinder, spraining his ankle.26 This Court recognized that a

merchant owed its invitees a “duty to maintain its premises in a reasonably safe condition

in view of the contemplated use thereof and the purposes for which the invitation has

been extended,” and held that the defendant was obligated to keep the surface of its lot in

a safe condition so that its patrons would not be harmed in entering or leaving the parking

lot.27 Similarly, this Court’s caselaw has consistently established that a merchant’s duty

of reasonable care over the physical premises does not extend to open and obvious

24

Id. at 327-328

, quoting Herdt v Koenig, 137 Mo App 589;

119 SW 56

 (1909)
(quotation marks omitted).
25
     Butler,

193 Mich at 327

 (quotation marks and citation omitted).
26
     Goodman v Theatre Parking, Inc,

286 Mich 80, 81

281 NW 545

 (1938).
27

Id. at 81-82

. Nevertheless, this Court held that the plaintiff was ultimately barred from
recovery because of his contributory negligence in failing to avoid the hazard.

Id. at 83

.



                                              9
physical hazards because of an invitee’s coexisting ability to take reasonable measures to

avoid such hazards.28

         Siegel v Detroit City Ice & Fuel Co provides strong common-law support for

concluding that a landlord and merchant have coextensive duties to protect invitees and

tenants from physical hazards on the premises.29 There, two defendants—the commercial

owner of a parking lot and the merchant theater that leased the parking lot from the

owner—were both held liable for an invitee’s injury that arose from a hazard on the

parking lot. After getting out of his car on his way to the theater, the plaintiff fell in a

large oblong hole in the parking lot, injuring his femur. This Court explained that,

because both the owner/landlord and the merchant/tenant shared control of the property

due to the “joint right of ingress and egress,” they both owed a duty of care to invitees on

the property.30 Recognizing that “[t]his is not a case where either the tenant or the

landlord had exclusive control and possession of common passageways,” the Court’s


28
   Although Goodman negated the merchant’s liability on the basis of the plaintiff’s
contributory negligence, our subsequent caselaw has clarified that the scope of a premises
possessor’s duty “does not generally encompass removal of open and obvious dangers.”
Lugo v Ameritech Corp, Inc,

464 Mich 512, 516

629 NW2d 384

 (2001). Specifically,
Lugo held that “the open and obvious doctrine should not be viewed as some type of
‘exception’ to the duty generally owed invitees, but rather as an integral part of the
definition of that duty.”

 See also Hoffner v Goodman,

492 Mich 450, 460-461

821 NW2d 88

 (2012) (citation omitted) (“The possessor of land ‘owes no duty to protect or
warn’ of dangers that are open and obvious because such dangers, by their nature, apprise
an invitee of the potential hazard, which the invitee may then take reasonable measures to
avoid.”).
29
     Siegel v Detroit City Ice & Fuel, Co,

324 Mich 205, 214

36 NW2d 719

 (1949).
30

Id. at 213-214

.



                                            10
decision turned on the fact that “defendants each had possession and control” of the

premises.31 Notably, this Court did not establish that different duties existed for the

owner/landlord and the merchant/tenant.

          Providing further support for this principle is our opinion in Lipsitz v Schechter,

which continued to recognize that a landlord owes a duty to its residential tenants and

their invitees to keep areas under its control reasonably safe from physical hazards.32 For

that legal proposition, the Court cited both Butler, a case involving a landlord’s

responsibilities for its residential common area, and Siegel, involving as defendants both

a commercial landlord and its tenant/merchant. Lipsitz itself involved a tenant who was

walking outside her 4-story apartment building and was struck by a screen window that

fell from the building. The Court reaffirmed that “the element of control is of prime

importance” when determining the existence of a duty.33 Because the defendant landlord

admitted that he had secured a screen window that had fallen from the building and that

the landlord’s janitor occasionally removed the screens to wash them, the Court

concluded that the landlord exercised control over the screen and was consequently under

an obligation to remedy any defect with regard to the screen that constituted a hazard.34




31

Id. at 214

.
32
     Lipsitz v Schechter,

377 Mich 685, 687

142 NW2d 1

 (1966).
33

Id. at 687

.
34

Id. at 689

.



                                              11
         These cases illustrate the consistency of our treatment of landlords and merchants

as it pertains to the physical maintenance of the areas over which they retain control.

Whether someone who controls a premises is a landlord or a merchant, the element of

control forms the basis of imposing a duty to invitees. As illustrated in Butler, where

“the landlord not having let the common portion of the property to any one tenant, he has

reserved the control thereof to himself.”35 Thus, where tenants, their invitees, or a

merchant’s invitees lack control over certain premises, the concomitant actor in the

special relationship—the landlord or merchant—bears the burden of control and thus the

duty keep such areas reasonably safe.36

                IV. LIABILITY FOR THE CRIMINAL ACTS OF OTHERS

         Traditionally, the duty imposed on a landlord or merchant had been limited to

protect tenants and other invitees from physical defects in the property over which they

retained control, not to protect tenants and other invitees from the criminal acts of others

in those controlled areas.37 However, in a series of cases dating from the 1970s, this


35
     Butler,

193 Mich at 327

 (quotation marks and citation omitted).
36
   Of course, a landlord’s duty does not extend to the areas within a tenant’s leasehold,
because the landlord has relinquished its control over that area to the tenant. See
Williams,

 n 10; Lipsitz,

377 Mich at 687

 (“The lessor, absent agreement
to the contrary, surrenders possession and holds only a reversionary interest. Under such
circumstances, he is under no obligation to look after or keep in repair premises over
which he has no control.”); Prosser & Keeton, Torts (4th ed.), § 63, pp 399-400. This
relinquishment of control extinguishes the landlord’s duty of reasonable care over those
areas.
37
  Prosser & Keeton, Torts (5th ed), § 63, p 442 (“Prior to 1970, there was no general tort
duty on landlords to protect their tenants against criminal theft or attack.”); Goldberg v


                                              12
Court expanded the duty of both landlords and merchants to protect their tenants and

invitees from those criminal acts. The first case to do so, Manuel v Weitzman, held that a

bar owner may be liable in common law negligence for failing to “take action to protect

[the plaintiff] from injury” by another patron when the defendant knew that the other

patron “had engaged in a fight in a bar at some time before the attack,” when “the

bartenders on duty did not take sufficient measures to eject him after he became

obstreperous and disruptive,” and when “the bartenders did not act immediately to protect

[the plaintiff] from injury” once the initial assault began.38 In doing so, this Court

included for the first time the criminal acts of others being among the hazards within the

scope of a merchant’s duty “‘to its customers and patrons, including the plaintiff, of

maintaining its premises in a reasonably safe condition and of exercising due care to

prevent and to obviate the existence of a situation, known to it or that should have been

known, that might result in injury.’”39



Housing Auth of City of Newark, 38 NJ 578, 587;

186 A2d 291

 (1962) (“The duty to
provide police protection is foreign to the history of the landlord-tenant relationship.”).
Nationally, that duty began to expand in the context of the landlord-tenant relationship
with Kline v 1500 Mass Ave Apartment Corp, 439 F2d 477, 481 (CA DC, 1970)
(“[W]here, as here, the landlord has notice of repeated criminal assaults and robberies,
has notice that these crimes occurred in the portion of the premises exclusively within his
control, has every reason to expect like crimes to happen again, and has the exclusive
power to take preventive action, it does not seem unfair to place upon the landlord a duty
to take those steps which are within his power to minimize the predictable risk to his
tenants.”).
38
  Manuel v Weitzman,

386 Mich 157, 166-167

191 NW2d 474

 (1971), overruled in part
on other grounds Brewer v Payless Station, Inc,

412 Mich 673

316 NW2d 702

 (1982).
39
     Id. at 163, quoting Torma v Montgomery Ward & Co,

336 Mich 468, 476

58 NW2d 13

          Similarly, in Samson v Saginaw Professional Building, Inc, this Court applied the

same theory of liability to a commercial landlord that leased office space to an outpatient

mental health clinic but that had failed “to provide some security measures or warnings

for the safety of its tenants and visitors . . . .”40 Although this case implied some duty for

a landlord or merchant to take prophylactic measures to prevent third parties’ criminal

acts before they are imminent,41 it did not specifically articulate the measures that a

landlord or merchant must take to obviate the hazard of third parties’ criminal acts.

Indeed, a vigorous dissent in Samson questioned the imposition of such an amorphous

duty.42




149. Notably, Torma involved a merchant’s duty to clear a physical defect on the
property, and thus typified the traditional understanding of premises liability discussed
above.
40
     Samson v Saginaw Prof Bldg, Inc,

393 Mich 393, 408-409

224 NW2d 843

 (1975).
41
  See

id. at 411

 (LEVIN, J., dissenting) (“[W]hen the landlord is informed by his tenants
that a possible dangerous condition exists in the building, he has a duty to investigate and
take available preventative measures.”); Manuel,

386 Mich at 164

, quoting Windorski v
Doyle, 219 Minn 402, 407;

18 NW2d 142

 (1945) (“‘The proprietor of such a place has
the undoubted right to exclude therefrom drunken and disorderly persons, and the right to
remove and expel them when they become in that condition and disorderly, and likely to
produce discord and brawls. Being clothed with such power and authority, a
corresponding duty to do so in the interests of law and order, and for the protection of his
other guests, should be imposed as a matter of law.’”).
42
  Samson,

393 Mich at 421

 (LEVIN, J., dissenting) (“No line is discernible to distinguish
the liability sought to be imposed on [the defendant] from potential liability of landlords
who rent to psychiatrists or lawyers who see persons with violent or criminal
backgrounds.”).



                                             14
       Because “‘any legal standard must, in theory, be capable of being known,’”43 this

Court has since clarified the scope of the duty to prevent harm arising out of third parties’

criminal acts. In Williams v Cunningham Drug Stores, Inc, this Court held that “a

merchant’s duty of reasonable care does not include providing armed, visible security

guards to deter criminal acts of third parties.”44 In doing so, this Court described the

unpredictability of crime as the basis for limiting a merchant’s liability toward invitees:

               [A]lthough defendant can control the condition of its premises by
       correcting physical defects that may result in injuries to its invitees, it
       cannot control the incidence of crime in the community. Today a crime
       may be committed anywhere and at any time. To require defendant to
       provide armed, visible security guards 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. Defendant simply does not have that
       degree of control and is not an insurer of the safety of its invitees.[45]

43 Williams, 429

 Mich at 503 n 18, quoting Holmes, The Common Law, Lecture III
(1923), p 111.

44 Williams, 429

 Mich at 501. Although Williams stated in dicta that a landlord has more
control in his relationship with his tenants than does a merchant in his relationship with
his invitees,

id.

 at 502 n 17, we note that our common law has historically treated the
duties of landlords and merchants similarly. Nevertheless, it is notable that, in making
this distinction, Williams refused to apply Samson to the merchant-invitee special
relationship.
45
   Id. at 502. This Court has recognized that cases involving the duties of merchants
regarding criminal activity on their premises have a bearing on the similar duties of
landlords. After Williams, we remanded to the Court of Appeals a case that involved
whether a residential landlord had a duty to provide security guards, for reconsideration
in light of Williams, which held that a merchant had no duty to provide security guards.
Bryant v Brannen,

431 Mich 865

428 NW2d 346

 (1988); on remand

180 Mich App 87

446 NW2d 847

 (1989).



                                             15
         In Scott v Harper Recreation, Inc, this Court reiterated the proposition that a

merchant “ordinarily has no obligation to provide security guards or to protect customers

against crimes committed by third persons” and explained that this principle remains in

force “even where a merchant voluntarily takes safety precautions,”46 such as hiring

security guards or installing additional lighting. Accordingly, a merchant’s undertaking

of measures to deter the crimes of others does not create a duty to eliminate those crimes.

Indeed, the Court recognized that the alternative rule would create a disincentive for

security measures.47     In Mason v Royal Dequindre, Inc, this Court clarified that

“merchants have a duty to use reasonable care to protect their identifiable invitees from

the foreseeable criminal acts of third parties.”48 However, beyond indicating that a

merchant’s actions “must be reasonable,” the Court did not articulate the scope of the

merchant’s duty.

         We finally did so in MacDonald, holding that “the duty to respond is limited to

reasonably expediting the involvement of the police and that there is no duty to otherwise

anticipate and prevent the criminal acts of third parties.”49 As in Williams, we explained


46
     Scott v Harper Recreation, Inc,

444 Mich 441, 451, 452

506 NW2d 857

 (1993).
47

Id. at 451

 (“[W]e decline to adopt a theory of law under which a merchant would be
effectively obliged not to take such measures.”). The Court also cited Lee v Borman’s,
Inc,

188 Mich App 665

478 NW2d 653

 (1991), and Theis v Abduloor,

174 Mich App 247

435 NW2d 440

 (1988), for the proposition that “providing a measure of security
does not oblige a merchant to continue the practice.” Scott,

444 Mich at 451

 n 14.
48
     Mason v Royal Dequindre, Inc,

455 Mich 391, 405

566 NW2d 199

(1997).
49
MacDonald, 464 Mich at 326.

16
that, “[b]ecause criminal activity is irrational and unpredictable, it is in this sense

invariably foreseeable everywhere.”50 As a result, “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.”51 Although the element of control is essential in

establishing a landlord or merchant’s duty over the premises, they “do not have effective

control over situations involving spontaneous and sudden incidents of criminal activity.

On the contrary, control is precisely what has been lost in such a situation.”52

In sum, MacDonald clarified the scope of a merchant’s limited duty regarding the

criminal acts of third parties:

[G]enerally merchants “have a duty to use reasonable care to protect
their identifiable invitees from the foreseeable criminal acts of third
parties.” The duty is triggered by specific acts occurring on the premises
that pose a risk of imminent and foreseeable harm to an identifiable invitee.
Whether an invitee is readily identifiable as being foreseeably endangered
is a question for the factfinder if reasonable minds could differ on this
point. While a merchant is required to take reasonable measures in
response to an ongoing situation that is taking place on the premises, there
is no obligation to otherwise anticipate the criminal acts of third parties.
Consistent with Williams, a merchant is not obligated to do anything more
than reasonably expedite the involvement of the police. We also reaffirm
that a merchant is not required to provide security guards or otherwise
resort to self-help in order to deter or quell such occurrences.[53]

50
Id. at 335.
51
Id.
52
Id. at 337.
53
Id. at 338, quoting Mason,

455 Mich at 405

 (citations omitted).



                                                17
While this duty has remained in place for merchants since clarified in MacDonald, we

have not explicitly articulated the scope of the duty with regard to residential or

commercial landlords. We do so today.

                       V. THE SCOPE OF A LANDLORD’S DUTY

         In keeping with the traditional 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 with regard

to those common areas, we hold that a landlord’s duty regarding 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[ring] on the premises that would cause a

reasonable person to recognize a risk of imminent harm to an identifiable invitee.”54

         Like a merchant, a landlord can presume that tenants and their invitees will obey

the criminal law.55 Because of the unpredictability and irrationality of criminal activity,

“[t]his 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

[tenant or] invitee.”56 Only when given notice of such a situation is a duty imposed on a

landlord. Notice is critical to determination whether a landlord’s duty is triggered;
54
     MacDonald, 464 Mich at 335.
55
  Id.; see also People v Stone,

463 Mich 558, 565

621 NW2d 702

 (2001) (noting that an
individual person can presume that others will obey criminal laws).
56
     MacDonald,

203 Mich App 143, 150-151

.



                                            18
without notice that alerts the landlord to a risk of imminent harm, it may continue to

presume that individuals on the premises will not violate the criminal law. To the extent

this holding, and the holdings of MacDonald and Williams, conflict with Samson we limit

Samson to the duty clarified today and in MacDonald and Williams.57

         We wish to make clear, however, that just as a landlord does not owe a duty of

repair within a tenant’s leasehold,58 a landlord likewise does not have a duty to respond to

criminal acts occurring within the leasehold of a tenant. In both situations, the landlord

has surrendered possession and control of the leasehold to the tenant.59 Because our

common law has consistently imposed a duty only where a landlord or merchant




57
   We do not address the status of Johnston v Harris,

387 Mich 569

198 NW2d 409

(1972), because it is not implicated under the facts of this case. In Johnston, the plaintiff
was attacked in the unlocked and poorly lit vestibule of his apartment by a man who was
lurking there. He alleged that the defendant landlord was liable for his injuries because
of inadequate lighting in the vestibule and unlocked doors. Johnston held that the
landlord’s duty to repair physical defects in common areas applies to “provid[ing]
adequate lighting and locks.”

Id. at 573

. Johnston should be read in light of Scott,
however, which reaffirmed Williams’ principle that we impose no liability on premises
owners for the failure of voluntary safety precautions. In short, there is a duty imposed
on merchants or landlords to repair defects on the premises, but there is no duty to
provide extraordinary safety precautions like security guards or extensive lighting. See
Williams,

429 Mich at 502

; Scott,

444 Mich at 452

; Stanley v Town Square Coop,

512 NW2d 51

 (1993) (holding that a premises owner has a duty
to remedy a condition on the physical premises that creates “an unusual risk of criminal
attack,” but no duty to protect from the general hazard of crime which is “inherent in the
society in which we live”).
58
     See n 38.
59
  See Williams,

 n 10; Lipsitz,

377 Mich at 687

; Prosser, Torts (4th ed.),
pp 399-400.



                                             19
exercises control over particular premises, a landlord’s duty arises only when the

triggering conduct occurs in those areas under the landlord’s control.

         If and when a landlord’s duty is triggered, a reasonable response by the landlord is

required. Typically, whether an actor proceeded reasonably is a question for the fact-

finder. But, just as in MacDonald60 and Williams,61 we determine as a matter of law what

constitutes reasonable care when a landlord is confronted with imminent criminal acts

occurring on the premises under the landlord’s control. And, like MacDonald, we make

clear that as a matter of law, the duty to respond requires only that a landlord make

reasonable efforts to expedite police involvement. Landlords, like merchants, have a low

degree of control over the criminal acts of others. Our conclusion today does not expand

a landlord’s duty concerning third-party criminal acts; requiring more of a landlord than

taking reasonable efforts to expedite police involvement would essentially result in the

duty to provide police protection, a concept this Court has repeatedly rejected.62

Consistent with our recognition that the duty to provide police protection is vested with

the government, and given the unpredictability of specific acts of crime, we decline to

impose any greater obligation on a landlord.




60
     MacDonald,

464 Mich at 336

61 Williams, 429

 Mich at 501.
62
     See, e.g., MacDonald,

464 Mich at 336-337

; Williams,

429 Mich at 501

.



                                              20
                                    VI. APPLICATION

         Plaintiff’s amended complaint alleges that plaintiff was attending a barbeque in a

“common outdoor area” at Evergreen’s apartment complex, where his brother was a

tenant. Plaintiff alleges that during the barbeque, Schaaf entered the premises with a

handgun and made threats “to kill somebody.” Further, it is alleged that Laura Green, a

tenant, informed the security guards, who were approximately 30 feet away from Schaaf,

that “Schaaf was a non-resident, wielding a gun, [and] making threats to shoot people.”

It is also alleged that Green “pointed at Schaaf, identifying him” to security guards Baker

and Campbell. Importantly, plaintiff alleges that the security guards failed to “notif[y]

any police authorities of Schaaf’s dangerous presence,” even though Schaaf was “plainly

observable in the immediate vicinity.”

         We have no doubt that plaintiff alleges sufficient facts that, if accepted as true,

justify imposing a duty on defendants to notify police of the ongoing situation that was

taking place at Evergreen. As the Court of Appeals accurately explained, plaintiff alleges

facts indicating “the extreme nature of the ongoing situation at Evergreen,” which

involved “the most deadly circumstance of all” in the common area of the apartment

complex: “a man brandishing a gun—apparently in full view of two security guards—

who threatened to fire, and ultimately did fire, that gun with near fatal consequences.”63

The Court of Appeals also noted that in his complaint, plaintiff characterizes the alleged

relationship between the security guards and the landlord as an agency “for purposes of

63 Bailey, 293

Mich App at 627-628.

21
responding to safety issues.”64 Given the facts alleged involving the contract for security

services between the security company and the landlord, we agree with the Court of

Appeals that plaintiff has alleged sufficient facts that would impute to the landlord

Green’s notice to Baker and Campbell of the ongoing situation involving Schaaf in a

common area of the premises. As a result, defendants were on notice that their invitees

and tenants faced a specific and imminent harm. Furthermore, plaintiff was an

identifiable victim of that harm because he was within the range of the risk of harm

created by Schaaf’s conduct.65 Thus, if we accept plaintiff’s allegations as true,

defendants had a duty to reasonably expedite the involvement of the police, and the Court

of Appeals properly held that the defendants were not entitled to summary disposition

under MCR 2.116(C)(8).

VII. CONCLUSION

In line with our consistent historical treatment of merchants and landlords in the

context of their duty with regard to hazards in areas under their control, we apply the

MacDonald framework to situations involving the landlord-tenant special relationship

and, thereby, render consistent our treatment of landlords’ and merchants’ duties when

faced with imminent criminal action. Because the plaintiff alleged that defendant’s hired

64
Id. at 641. Notably, “Green testified at her deposition that management had instructed
the residents to call security to report any crimes.” Id. at 641 n 82.
65
See MacDonald,

464 Mich at 334

22
security guards failed to contact the police when clearly on notice of an imminent risk to

him, we affirm this part of the Court of Appeals judgment.

However, we remand this case to the Court of Appeals for its consideration of

Evergreen’s and Radney’s vicarious liability issues under Al-Shimmari,66 including

whether the issues were properly preserved for appeal. Finally, as to plaintiff’s

application for leave to appeal as cross-appellant, we vacate part V(E) of the Court of

Appeals judgment,67 which upheld the trial court’s dismissal of plaintiff’s negligence

claims against defendant Hi-Tech on the basis of the contract between Hi-Tech and

Evergreen because it applied Fultz,68 without discussing our clarification of Fultz in

Loweke.69 We remand this case to the Court of Appeals for reconsideration of that issue

in light of Loweke and Hill.70 The application for leave to appeal as cross-appellant is

denied in all other respects because we are not persuaded that the remaining question

presented should be reviewed by this Court.

Robert P. Young, Jr.
Mary Beth Kelly
Brian K. Zahra
Bridget M. McCormack
David F. Viviano

66
Al-Shimmari,

477 Mich at 280

67 Bailey, 293

 Mich App at 642-643.
68
     Fultz,

470 Mich at 460

.
69
     Loweke,

489 Mich at 157

70 Hill, 492

Mich at 651.

23
STATE OF MICHIGAN

SUPREME COURT

DEVON SCOTT BAILEY,

Plaintiff-Appellee/
Cross-Appellant,

v No. 144055

STEVEN GEROME SCHAAF,
Defendant

and

T.J. REALTY, INC., d/b/a HI-TECH
PROTECTION, TIMOTHY JOHNSON,
CAPTAIN WILLIAM BOYD BAKER,
CHRISTOPHER LEE CAMPBELL

Defendant-Appellees

and

EVERGREEN REGENCY TOWNHOMES,
LTD., and RADNEY MANAGEMENT &
INVESTMENTS,

Defendant-Appellants/Cross-
Appellees.

MCCORMACK, J. (concurring).

I agree with the majority’s analysis and join its opinion without qualification. I

write separately only to emphasize one point in the majority’s fine opinion. It is

sometimes useful for courts to emphasize that common sense, as well as precedent,

recommends a particular course of action.
The majority rightly shows how this Court’s past precedent establishes that

plaintiff states a valid claim against defendants. The principles of MacDonald v PKT,

Inc,1 Williams v Cunningham Drug Stores, Inc,2 and the other cases the majority

identifies plainly govern here. The landlord-tenant relationship is an archetypal special

relationship—the law imposes a duty on a landlord to protect tenants from certain risks.3

Landlords and tenants are bound by a voluntary market relationship, where money

is exchanged for the promise of shelter. Here, defendants Evergreen and Radney hired

security guards for a practical purpose4—to provide some measure of protection for

tenants and their social guests. Undoubtedly, the presence of those security guards gave

some amount of comfort to Evergreen’s residents, and made Evergreen a more attractive

place to live. Of course, the overhead costs of employing security staff are borne by

Evergreen and Radney and passed on to the Evergreen tenants like the other costs of any

amenity, which is to say that the market will tend to provide such services only when

they are needed or desired. The dissent’s suggestion to the contrary notwithstanding, the

1
MacDonald v PKT, Inc,

464 Mich 322

 (2001).
2
    Williams v Cunningham Drug Stores, Inc,

429 Mich 495

418 NW2d 381

 (1988).
3
    See

id.

at 502 n 17.
4
I recognize that the agency relationship between defendants Evergreen and Radney and
Hi-Tech is an issue that is being remanded to the Court of Appeals for consideration, as
there is some evidence to suggest that a contractual relationship may not have existed at
the time of Bailey’s injury. Contract or not, Hi-Tech was present on the premises not out
of a selfless desire to do good; the security guards were there at Evergreen and Radney’s
invitation.

2
question of how much security, amongst other amenities, an apartment complex should

provide is one for the market to determine, not this Court.

But the security guards’ failure to alert law enforcement when notified of the

possibility of imminent danger is a failure the law recognizes. It constitutes a violation of

the defendants’ duty because the resulting harm is foreseeable. Indeed, under the facts of

this case, Hi-Tech’s security guards are in the best position to reduce the risk of harm

presented by Schaaf. In other words, the security guards were the cheapest cost-avoiders

of the harms that Bailey suffered.5 The defendants face liability because the harm in

question was foreseeable, and the security guards failed to do their job.

Bridget M. McCormack

5
See, e.g., Calabresi, Costs of accidents: A Legal and Economic Analysis (1970); Posner,
Economic Enalysis of Law (7th ed).

3
STATE OF MICHIGAN

SUPREME COURT

DEVON SCOTT BAILEY,

Plaintiff-Appellee/
Cross-Appellant,

v No. 144055

STEVEN GEROME SCHAAF,

Defendant,
and

T.J. REALTY, INC., d/b/a HI-TECH
PROTECTION, TIMOTHY JOHNSON,
CAPTAIN WILLIAM BOYD BAKER,
CHRISTOPHER LEE CAMPBELL,

Defendants-Appellees,

and

EVERGREEN REGENCY TOWNHOMES,
LTD., and RADNEY MANAGEMENT &
INVESTMENTS,

Defendants-Appellants/Cross-
Appellees.

CAVANAGH, J. (concurring in part, dissenting in part).
At issue in this case is whether an apartment complex landlord owes a duty to its

tenants and invitees to respond to an imminent threat of a third party’s criminal act in the

common area of the premises by calling the police. Specifically, we must decide whether

MacDonald v PKT, Inc,

464 Mich 322

 (2001), applies to landlords. To
the extent that the majority holds that landlords owe their tenants and invitees the duty

established by a majority of this Court in MacDonald, I agree. However, I respectfully

disagree with the majority’s analysis, and its decision to limit the holding of Samson v

Saginaw Prof Bldg, Inc,

393 Mich 393, 409

224 NW2d 843

 (1975). In my judgment, the

majority fails to sufficiently analyze the nature of the relationship between a landlord and

the landlord’s tenants and invitees, where that relationship defines the nature of a

landlord’s duty.

          I. PREMISES PROPRIETORS’ DUTY TO PROTECT ANOTHER

                              A. GENERAL PRINCIPLES

       Generally, the law may recognize a tort duty where “the relationship between the

actor and the injured person gives rise to [a] legal obligation on the actor’s part for the

benefit of the injured person.” Moning v Alfono,

400 Mich 425, 438-439

254 NW2d 759

(1977). In determining whether there is a legal obligation on the part of the actor that the

law will recognize, often the question of duty will turn on a number of different factors,

“including foreseeability of the harm, degree of certainty of injury, closeness of

connection between the conduct and injury, moral blame attached to the conduct, policy

of preventing future harm, and . . . the burdens and consequences of imposing a duty and

the resulting liability for breach.” Valcaniant v Detroit Edison Co,

470 Mich 82, 86

679 NW2d 689

 (2004) (citations and quotation marks omitted). The nature of the parties’

relationship is critical in determining whether that relationship created the existence of a

legal obligation because it is a basic principle of negligence law that, as a general rule,

“there is no duty that obligates one person to aid or protect another.”         Williams v

Cunningham Drug Stores, Inc,

429 Mich 495, 498-499

418 NW2d 381

 (1988), citing 2


                                             2
Restatement Torts, 2d, § 314, p 116. A duty to protect another may nevertheless be

imposed when a special relationship exists between a defendant and a plaintiff. Id. at

499, citing 2 Restatement Torts, 2d, § 314A, p 118.1

       As we stated in Williams, the duty to protect may impose liability from passive

inaction, or nonfeasance, and “[t]he common law has been slow in recognizing liability

for nonfeasance because the courts are reluctant to force persons to help one another and

because such conduct does not create a new risk of harm to a potential plaintiff.”

Williams,

429 Mich at 498

. However, Williams further explained that “[s]ocial policy . . .

has led the courts to recognize an exception to [the general rule that there is no duty to

protect another] where a special relationship exists between a plaintiff and a defendant.”

Id. at 499

. This Court has also held that “[d]uty is not sacrosanct in itself, but is only an

expression of the sum total of those considerations of policy which lead the law to say

that the plaintiff is entitled to protection.” Buczkowski v McKay,

441 Mich 96, 100-101

;


1
  If a legal obligation exists arising out of the parties’ special relationship, other inquiries
remain relevant in determining whether a particular duty or standard of care is owed to a
plaintiff. See Murdock v Higgins,

208 Mich App 210, 215

527 NW2d 1

 (1994), aff’d

454 Mich 46

 (1997) (citations and quotation marks omitted) (“In order to determine
whether a ‘special relationship’ giving rise to a legal duty to act exists in a particular
case, this Court has held that it is necessary to balance the societal interests involved, the
severity of the risk, the burden upon the defendant, the likelihood of occurrence, and the
relationship between the parties. . . . Other factors which may give rise to a duty include
the foreseeability of the [harm], the defendant’s ability to comply with the proposed duty,
the victim’s inability to protect himself from the harm, the costs of providing protection,
and whether the plaintiff had bestowed some economic benefit on the defendant.”). See,
also, Dobbs, The Law of Torts, § 317, p 859 (“Even if a duty to take reasonable [active]
action is recognized, liability is by no means a foregone conclusion. The exact conduct
that reasonable care would demand may vary according to the relationship and
circumstances.”).



                                               3

490 NW2d 330

 (1992) (quotation marks omitted), quoting Prosser & Keeton, Torts (5th

ed), § 53, p 358.2

       Despite the common law’s reluctance to impose a duty to protect another,

Williams noted that, in the past, the duty to protect may apply to a common carrier and its

passengers, an innkeeper and its guests, and an employer and its employees, explaining

that

       [t]he rationale behind imposing a duty to protect in these special
       relationships is based on control. 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. [Williams,

 (citations omitted).]

                         B. MERCHANTS AND LANDLORDS

       It is true that “Michigan courts recognize a duty of care that arises solely from the

possession of land . . . .” Kessler v Visteon Corp,

448 F3d 326, 331

 (CA 6, 2006); see

also Bertrand v Alan Ford, Inc,

449 Mich 606, 609

537 NW2d 185

(1995) (“Essentially,

2
See, also, Harper & Kime, The Duty to Control the Conduct of Another, 43 Yale L J
886, 905 (1934) (stating that the policies justifying the imposition of the duty to protect
“reflect the general attitude of the community; they represent for the most part the
popular notions of what constitutes proper assumptions on the part of one person when
dealing with another. The common law attempts to interpret these communal reactions
and to crystallize them into rules of law. As business and social relations become more
and more complicated, these reactions are modified on the one hand and extended on the
other. This requires modification and extension of the common law. The principles
governing the duty of one person to control the conduct of another have this general
elasticity which characterizes other principles of tort law. . . . If . . . the relationship of
the parties appears to be, for all practical social purposes, indistinguishable from the type
of cases which have been included under these general divisions [of either a special
relationship or special circumstances], tort law may add another cubit to the stature which
it has acquired over centuries of constant growth.”).

4
social policy imposes on possessors of land a legal duty to protect their invitees on the

basis of the special relationship that exists between them.”). In fact, Williams explained

that “[o]wners and occupiers of land are in a special relationship with their invitees and

compromise the largest group upon whom an affirmative duty to protect is imposed.”

Williams,

.        Williams supported that assertion by explaining that

landlords may be held liable for an unreasonable risk of harm caused by a dangerous

condition of the land in the common areas of the premises, and merchants also have a

duty to reasonably maintain the physical structures on their premises.

Id. at 499-500

,

citing 2 Restatement Torts, 2d, §§ 343, 360, and Johnston v Harris,

387 Mich 569

198 NW2d 409

 (1972). Plaintiff, on the other hand, asserts that defendant landlords owed

him a duty to protect against imminent third-party criminal conduct that was not the

result of or facilitated by the landlord’s failure to maintain the physical premises.

Specifically, the duty that plaintiff seeks to impose on defendant landlords in this case is

identical to the duty that a majority of this Court imposed on the defendant merchant in

MacDonald.3 The MacDonald Court, however, only considered whether the scope of a

merchant’s duty established in Mason v Royal Dequindre, Inc,

455 Mich 391

566 NW2d 199

 (1997), remained valid and did not consider the justification for the imposition of the

duty itself. In Mason, we held that merchants owe the duty to protect a “‘readily

identifiable [invitee who is] foreseeably endangered’” from unreasonable risks of harm.


3
  I continue to adhere to my dissenting opinion in MacDonald. See MacDonald,

464 Mich at 346-358

 (CAVANAGH, J., dissenting). However, my dissenting opinion is not
implicated in this case because plaintiff only argues that a minimal duty, as defined by
the MacDonald majority, applies to defendants.



                                             5

Id. at 398

, quoting Murdock v Higgins,

454 Mich 46, 58

559 NW2d 639

 (1997). Mason

explained that this Court has “recognized that merchants may have a common-law duty

to protect their patrons from the criminal acts of other patrons,”

455 Mich at 399

, citing

Manuel v Weitzman,

386 Mich 157

191 NW2d 474

 (1971), and held that, generally,

merchants have a duty to protect their invitees because of their special relationship.

Mason,

455 Mich at 397-398, 405

, citing Williams,

429 Mich at 498-500

, and Mason,

455 Mich at 397

 n 2, quoting 2 Restatement Torts, 2d, § 314A, p 118. See also Mason,

455 Mich at 398-399

, quoting 2 Restatement Torts, 2d, § 344, pp 223-224.

       While our prior cases involving owners and occupiers of land clearly demonstrate

that merchants share a special relationship with their invitees, giving rise to the duty to

protect, our caselaw is not so clear as it pertains to a landlord’s duty to protect its tenants

and invitees. Notably, while several Michigan cases that address the duty to protect to

prevent harm to another in various circumstances have mentioned that landlords and

tenants share a special relationship, we have yet to provide a justification for the duty.

See, e.g., Murdock,

454 Mich at 55

 n 11, Dawe v Dr Reuven Bar-Levav & Assoc, PC,

485 Mich 20

, 26 n 3;

780 NW2d 272

 (2010), Holland v Liedel,

197 Mich App 60, 63

494 NW2d 772

 (1992), and Dykema v Gus Macker Enterprises, Inc,

196 Mich App 6, 8

492 NW2d 472

 (1992). Moreover, it is not clear from our prior cases involving only a

merchant’s duty to protect another from the criminal conduct of a third party that this

Court has assumed that merchants and landlords have synonymous duties as premises

owners. Rather, we have indicated that a landlord’s relationship with its tenants may

differ from a merchant’s relationship with its invitees. See Williams,

429 Mich at 502

 n

17 (explaining that landlords have more control over their relationships with their tenants


                                              6
than merchants do with their invitees); Scott v Harper Recreation, Inc,

444 Mich 441

,

452 n 15;

506 NW2d 857

 (1993) (expressly declining to address whether its holding

should be extended to the landlord-tenant context).4

       Before Williams was decided, Samson recognized that a special relationship exists

between a landlord and its tenants.5 Samson,

393 Mich at 409

. In Samson, a landlord of

a commercial building leased office space to a mental health clinic. Samson upheld a

jury verdict that imposed liability on the landlord for failing to protect against the harms

posed by the mental health clinic’s patients within the common areas of the building.

Id. at 408-409

. Samson reasoned that a landlord retains responsibility for the common areas

of the premises that are not leased to tenants, and no one but the landlord remains

responsible for those areas; thus, “[i]t is [the landlord’s] responsibility to insure that these

areas are kept in good repair and reasonably safe for the use of his tenants and invitees.”

Id. at 407

.

       However, Samson’s basis for upholding the landlord’s duty is arguably unclear.

Justice MARKMAN argues that Samson is distinguishable because it involved a

commercial landlord, not a residential landlord, and Samson cited to § 314A(3) of the



4
  The majority asserts that Williams “refused to apply Samson to the merchant-invitee
special relationship.” Ante at 15 n 44. In my view, Williams simply noted Samson’s
holding to provide a similar comparison between merchants to landlords, and thus
evidences the fact that our caselaw may not have treated the duties of all premises
proprietors as coextensive.
5
  Some Court of Appeals panels have cited Samson for the general proposition that
landlords and tenants share a special relationship. See, e.g., Holland,

197 Mich App at 63

.



                                               7
Restatement, which addresses premises owners who hold their land open to the public.

Samson,

. Also, commentators have surmised that the duty imposed in

Samson may be characterized as arising out of the defendant’s act of leasing the premises

to a potentially dangerous tenant. Dobbs, The Law of Torts, § 325, p 880 n 5 (citing

Samson and explaining that some jurisdictions impose a duty on a landlord if the landlord

helped create the danger that harmed the plaintiff).6 Thus, absent clear direction from our

prior caselaw, I think that the nature of the landlord-tenant relationship must be

considered in deciding whether that relationship justifies the imposition of the duty

established under MacDonald.

                    II. MACDONALD APPLIES TO LANDLORDS

       I would hold that landlords share a special relationship with their tenants and

invitees, which implicates a landlord’s duty to protect against the conduct of third parties

that poses an imminent and foreseeable risk of harm within the common areas of the

premises. Specifically, I would hold that the minimal duty that MacDonald imposed on

merchants applies to landlords on the basis of the landlord-tenant relationship.

       Historically, the general rule against imposing liability on a person for failing to

protect another may have precluded the existence of a landlord’s duty to protect in light

of the original nature of leaseholds. See Trentacost v Brussel, 82 NJ 214, 225;

412 A2d 6

 In my view, it is unnecessary for the majority to limit Samson’s holding in light of
MacDonald’s limitation on the scope of a merchant’s duty to protect its invitees. The
only question that is currently before us is whether defendant landlords owed plaintiff the
minimal duty as articulated by the MacDonald majority. See MacDonald,

464 Mich at 338

. Moreover, as Justice MARKMAN recognizes, the duties at issue in Samson and
MacDonald appear distinguishable.

8
436 (1980) (“Leases acquired the character of conveyances of real property when their

primary function was to govern the relationship between landowners and farmers. Unlike

the original, medieval tenant, the modern apartment dweller rents not for profit but for

shelter.”). Also, § 314A of the Restatement, which establishes a non-exhaustive list of

special relationships that may serve the basis for the imposition of the duty to protect

another, expressly includes the relationships between a merchant, or one who holds his

land open to the public, and his invitees, and an innkeeper and his guests but is silent on

the relationship between a landlord and tenant. 2 Restatement Torts, 2d, § 344(2), (3),

and comment b, p 118.

However, in my judgment, the modern landlord-tenant relationship shares

characteristics of both an innkeeper and a premises owner who holds his land open to the

public. Landlords, particularly those of larger multi-complex properties, are analogous to

innkeepers as to the common areas of the premises because of the reasonable expectation

that landlords will provide some degree of supervision and control over the activities

occurring within the common areas. See Kline v 1500 Mass Avenue Apartment Corp,

439 F2d 477, 482 (CA DC, 1970) (comparing a modern landlord to an innkeeper and

noting that liability in the innkeeper-guest relationship may be based on the “innkeeper’s

supervision, care, or control of the premises”), and id. at 481 (“The landlord is no insurer

of his tenants’ safety, but he certainly is no bystander.”). Further, both residential and

commercial landlords open their land for their own pecuniary benefit, similar to a

merchant’s use of its land. Moreover, while the common areas of a residential landlord’s

premises may be restricted as to who may enter the land comparative to the public areas

of a merchant’s premises, that restriction is minimal considering that any tenant may

9
bring third parties within the common areas of the property. Because landlords share a

special relationship with their tenants and invitees, just as merchants share with their

invitees, I would hold that the MacDonald duty applies to landlords.

Notably, applying MacDonald to the landlord-tenant context does not contravene

the central holding in Williams—that a premises proprietor does not have a duty to

essentially provide police protection. Williams,

429 Mich at 501-503

. In Williams, we

considered the question “whether a merchant’s duty to exercise reasonable care includes

providing armed, visible security guards to protect invitees from the criminal acts of third

parties.”

Id. at 500

. The plaintiff in Williams argued that because the defendant drug

store owner had not provided a security guard, as it had routinely done in the past, the

defendant had breached its duty of care by not intercepting the armed robbery that

occurred at the store and resulted in the plaintiff’s injuries.

Id. at 497

. Williams held that

a merchant does not have a duty to provide visible guards as a crime deterrent because

that duty would amount to a duty to provide police protection.

Id. at 501

. Williams

reasoned that a merchant is not the “insurer of the safety of his invitees” and “cannot

control the incidence of crime in the community.”

Id. at 502

.

       As MacDonald recognized, “[m]erchants do not have effective control over

situations involving spontaneous and sudden incidents of criminal activity.” MacDonald,

464 Mich at 337

 (emphasis added). However, when the facts of the case illustrate that

the premises’ proprietor has notice of a foreseeable risk to an identifiable tenant or

invitee, the criminal activity is no longer random, as contemplated by Williams. See

Williams,

429 Mich at 501

 n 15 (explaining that the facts of Williams did not compel an

application of a merchant’s duty to protect its invitees against physical harm caused by


                                             10
the intentional acts of third parties under 2 Restatement Torts, 2d, § 344, pp 223-224).

Thus, applying MacDonald to defendants as landlords is consistent with Williams’s

holding, which declined to impose a general duty on a merchant to place security on the

premises in the first instance to protect its invitees against any crime that may occur in

the community. See also Mills v White Castle Sys, Inc,

167 Mich App 202, 208

421 NW2d 631

 (1988) (holding that Williams’s policy rationale did not preclude the

plaintiff’s negligence claim because the plaintiff argued that the defendant merchant

should have summoned the police, not that the defendant should have provided police

protection).

       Additionally, assuming that Scott,

444 Mich 441

, is applicable in this case,

applying MacDonald to the landlord-tenant context does not conflict with the underlying

principles of Scott. The Scott plaintiff alleged that the defendant merchant voluntarily

assumed the duty to protect the plaintiff against the criminal acts of a third party by

advertising that that lot was “lighted” and “guarded” and that the defendant breached that

duty by failing to provide adequate security, which resulted in the plaintiff’s injuries from

a criminal attack.

Id. at 449

. Scott held that “[s]uit may not be maintained on the theory

that the safety measures are less effective than they could or should have been,”

reasoning that “‘[s]uch a policy would penalize merchants who provide some measure of

protection, as opposed to merchants who take no measures.’”

Id. at 452

, quoting Tame v

A L Damman Co,

177 Mich App 453, 457

442 NW2d 679

 (1989). Scott also “reject[ed]

the notion that a merchant who makes property visibly safer has thereby ‘increased the

risk of harm’ by causing patrons to be less anxious.” Scott,

444 Mich at 451

11
However, in this case, defendants’ voluntary decision to employ security guards is

not the basis for the imposition of the landlords’ duty. Rather, the placement of the

security guards on the premises simply serves as the means by which defendants acquired

notice of Schaaf’s impending criminal behavior. Indeed, if it is determined that

defendants are vicariously liable for the security guards’ inaction, it would be as if the

defendants themselves were called on to notify the police of Schaaf’s conduct.7 Also,

contrary to Justice MARKMAN’s assertion, in applying MacDonald to defendant landlords

in this case, I do not rely on the premise that tenants and invitees are lulled into a sense of

safety via the placement of the security measures on the property to justify the imposition

of the duty to protect on a landlord. Rather, the landlord’s duty stems from the special

relationship that the tenant and the landlord share, which is primarily based on the

reasonable expectations that society places on the modern day landlord.

7
I disagree with Justice MARKMAN’s prediction that by imposing on landlords the
minimal duty under MacDonald, landlords will completely avoid the common areas of
the premises. The duty to reasonably expedite police involvement when on notice of
imminent harm to an identifiable invitee or tenant is not an impossible task. In fact, the
burden of this duty is slight, particularly when compared to the risk of harm, i.e., the loss
of life. Weighing the burden of the duty against the desirability of avoiding the harm is
consistent with the factors that this Court considers when imposing any tort duty. As a
practical matter, it seems quite obvious that landlords will choose to be actively present,
thereby increasing the value of their rental properties, over avoiding their properties
simply because they feel it is overly burdensome to potentially have to notify the police
of an imminent risk of harm of which they are aware. Such a simple act is likely
something that many landlords would already feel obligated to do absent the majority’s
holding today and why it should be an actionable wrong to avoid this duty.

12
III. CONCLUSION

I would hold that MacDonald applies to the landlord-tenant context, which simply

required 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. To justify the

imposition of that duty, I think that the nature of the landlord-tenant relationship must be

analyzed because it is the critical factor to be considered when imposing a duty to protect

another. Further, in my view, our caselaw regarding a merchant’s duty to protect its

invitees from the conduct of a third party has either been silent or expressly declined to

opine as to whether a landlord has a similar duty to protect its tenants and invitees. Thus,

while I agree with the majority to the extent that it holds that MacDonald applies to

defendants in this case, I respectfully disagree with the majority’s approach to this case.

Michael F. Cavanagh

13
STATE OF MICHIGAN

SUPREME COURT

DEVON SCOTT BAILEY,

Plaintiff-Appellee/
Cross-Appellant,

v No. 144055

STEVEN GEROME SCHAAF,

Defendant,
and

T.J. REALTY, INC., d/b/a HI-TECH
PROTECTION, TIMOTHY JOHNSON,
CAPTAIN WILLIAM BOYD BAKER,
CHRISTOPHER LEE CAMPBELL,

Defendants-Appellees,

and

EVERGREEN REGENCY TOWNHOMES,
LTD., and RADNEY MANAGEMENT &
INVESTMENTS,

Defendants-Appellants/Cross-
Appellees.

MARKMAN, J. (dissenting).

In MacDonald v PKT Inc,

464 Mich 322

 (2001), this Court held

that a merchant has a common-law duty under limited circumstances to “aid or protect” a

patron or invitee from third-party criminal conduct. At issue in the instant case is

whether this Court should now alter the common law and impose a similar legal duty on a
residential landlord to “aid or protect” tenants and their social guests from third-party

criminal conduct. Because longstanding common-law rules should not be altered absent

compelling reasons for such alteration, and because the majority opinion has provided no

such reasons in this case, I would continue to adhere to the general common-law rule in

Michigan that a landlord has no legal duty to “aid or protect” tenants and their social

guests from harm caused by a third-party’s criminal conduct.             Rather, traditional

understandings of legal responsibility within our common law have made clear that it is

the criminal perpetrator himself who is exclusively accountable for his own criminal

conduct, not a third party.

       This Court has created exceptions to our common-law rule and thereby imposed

legal accountability on someone other than the criminal perpetrator only in exceptional

circumstances where there is some “special relationship” in which one person can fairly

be said to have entrusted himself to the control and protection of another with a

consequent loss of control to protect himself. But the majority opinion has not offered

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. For these reasons, I respectfully dissent.




                                             2
                                   I. COMMON LAW

                           A. NATURE OF COMMON LAW

       The common law develops through judicial decisions. Placek v City of Sterling

Hts,

405 Mich 638, 657

275 NW2d 511

 (1979). Thus, it has been described as “judge-

made-law.”

 In particular, “[t]he law of negligence was created by common-law

judges and, therefore, it is unavoidably the Court’s responsibility to continue to develop

or limit the development of that body of law absent legislative directive.” Moning v

Alfono,

400 Mich 425, 436

254 NW2d 759

 (1977). As this Court explained in Bugbee v

Fowle, the common law “‘is but the accumulated expressions of the various judicial

tribunals in their efforts to ascertain what is right and just between individuals in respect

to private disputes.’” Bugbee v Fowle,

277 Mich 485, 492

269 NW 570

 (1936), quoting

Kansas v Colorado,

206 US 46, 97

27 S Ct 655

51 L Ed 956

 (1907).

       By its nature, the common law is not static; it adapts to changing circumstances.

Price v High Pointe Oil Co, Inc,

493 Mich 238, 242

828 NW2d 660

 (2013). “The

common law is always a work in progress and typically develops incrementally, i.e.,

gradually evolving as individual disputes are decided and existing common-law rules are

considered and sometimes adapted to current needs in light of changing times and

circumstances.”

Id. at 243

. As this Court stated in Beech Grove Investment Co v Civil

Rights Comm:

              It is generally agreed that two of the most significant features of the
       common law are: (1) its capacity for growth and (2) its capacity to reflect
       the public policy of a given era. . . .



                                             3
                                         * * *
             “The common law does not consist of definite rules which are
      absolute, fixed, and immutable like the statute law, but it is a flexible body
      of principles which are designed to meet, and are susceptible of adaption to,
      among other things, new institutions, public policies, conditions, usages
      and practices, and changes in mores, trade, commerce, inventions, and
      increasing knowledge, as the progress of society may require. So, changing
      conditions may give rise to new rights under the law . . . .” [Beech Grove
      Investment Co v Civil Rights Comm,

380 Mich 405, 429-430

157 NW2d 213

 (1968), quoting 15 A CJS, Common Law, § 2, pp 43-44.]

                           B. ALTERING COMMON LAW

      Nevertheless, although the common law evolves, “alteration of the common law

should be approached cautiously with the fullest consideration of public policy and

should not occur through sudden departure from longstanding legal rules.” Price,

493 Mich at 259

. “[W]hen it comes to alteration of the common law, the traditional rule must

prevail absent compelling reasons for change. This approach ensures continuity and

stability in the law.”

Id. at 260

 (emphasis added). Thus, because it is altering the

common law, the majority bears the heavy burden to provide compelling reasons for its

alteration and extension of the common law. In my judgment, the majority presents no

compelling reasons to justify its alteration of the common law. Indeed, as set forth

below, a number of persuasive reasons counsel against such a change. I would therefore

continue to adhere to our present common-law rule, one that has endured from the outset

of Michigan’s statehood and that faithfully reflects what has always previously been

recognized as the “‘accumulated expressions of the various judicial tribunals in their

efforts to ascertain what is right and just between individuals in respect to private

disputes[.]’” Bugbee,

277 Mich at 492

, quoting Kansas,

206 US at 97

.


                                            4
                           II. COMMON LAW NEGLIGENCE

       To state a cause of action for recovery under a negligence theory, certain elements

must be present. These elements are: (1) that defendant owed the plaintiff a legal duty;

(2) the defendant breached that legal duty; (3) that plaintiff suffered damages; and (4) that

defendant’s breach constituted a proximate cause of the plaintiff’s damages. Hill v Sears,

Roebuck & Co,

492 Mich 651, 660

822 NW2d 190

 (2012). If any element is absent, a

defendant is entitled to summary disposition.

       The specific issue in this case concerns duty. In the absence of any relevant

statute, the question of whether a legal duty exists in a given type of relationship is a

question answered by the common law.1 That is, this Court must determine whether

under our common law defendant, a residential landlord who does not hold his land open

to the public, owed plaintiff, a social guest of a tenant, a legal duty to aid or protect him

from third-party criminal conduct and, if not, whether we should now alter that common

law and impose such a duty.

            A. COMMON-LAW DUTY TO AID OR PROTECT ANOTHER

       The general common-law rule is that a person has no legal duty to aid or protect

another from harm, especially where, as here, such harm is caused by third-party criminal

conduct. Williams v Cunningham Drug Stores, Inc,

429 Mich 495, 498-499

418 NW2d 1

 Although it is an ordinary responsibility of a common-law judge to decide whether there
is an established legal duty in a tort case, the question before this Court is a distinct one,
to wit, whether we should create a new legal duty, i.e., a new basis for a negligence action
by altering the common law to impose a legal duty on a residential landlord to protect a
tenant and their social guests from third-party criminal conduct.



                                              5
381 (1988). Rather, the criminal perpetrator himself is exclusively responsible for such

conduct and for the harm caused.2 MacDonald,

 (“[I]t is unjustifiable to

make merchants . . . effectively vicariously liable for the criminal acts of third parties.”);

Williams,

429 Mich at 503

 (“The inability of government and law enforcement officials

to prevent criminal attacks does not justify transferring the responsibility to a business

owner.”); Scott v Harper Recreation, Inc,

444 Mich 441, 452

506 NW2d 857

 (1993)

(“[M]erchants are ordinarily not responsible for the criminal acts of third persons.”).

There are a small number of exceptions to this rule, however, and such a legal duty may

arise “by operation of the common law.” Hill,

492 Mich at 661

. As the “principal

steward of Michigan’s common law,” Price,

493 Mich at 258

 (quotation marks and

citation omitted), this Court has been highly reluctant to modify the general common-law

rule and impose a legal duty on persons to affirmatively aid or protect another from harm:

              In determining standards of conduct in the area of negligence, the
       courts have made a distinction between misfeasance, or active misconduct
       causing personal injury, and nonfeasance, which is passive inaction or the
       failure to actively protect others from harm. The common law has been
       slow in recognizing liability for nonfeasance because the courts are
       reluctant to force persons to help one another and because such conduct
       does not create a new risk of harm to a potential plaintiff. Thus, as a
       general rule, there is no duty that obligates one person to aid or protect
       another. [Williams,

429 Mich at 498-499

2
That one may have a moral duty or obligation to aid or protect is not the equivalent of
having a legal duty to aid or protect. Thus, although a person who sees that a pedestrian
is about to walk into oncoming traffic certainly possesses a moral obligation to intervene,
a person has never been viewed as having a legal obligation to do so, and as a result the
law will not hold him or her liable or accountable in a courtroom for the harms that occur
where this moral obligation is not carried out. This is not an area of disagreement among
any of the opinions in this case.

6
Nonetheless, we have imposed a legal duty to affirmatively aid or protect another

from harm in exceptional situations in which there is some special relationship. The

justification for these exceptions is that in such a special relationship, one person has

entrusted himself to the control and protection of another person, with a consequent loss

of control to protect himself:

Social policy, however, has led the courts to recognize an exception
to this general rule where a special relationship exists between a plaintiff
and a defendant. Thus, a common carrier may be obligated to protect its
passengers, an innkeeper his guests, and an employer his employees. The
rationale behind imposing a duty to protect in these special relationships is
based on control. 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. [Id. at 499.][3]

As the majority and concurring opinions recognize, Williams sets forth what has always

comprised our common-law general rule concerning the duty to aid or protect another,

Williams,

429 Mich at 498-499

, as well as the standard for identifying the limited range

of exceptions to such general rule.

Id. at 501

. See ante at 7 (“[O]ur common law

imposes a duty of care when a special relationship exists. These special relationships are




3
  See also Hill,

492 Mich at 666

 (“The rationale behind imposing a duty to protect in
these special relationships is based on control. In each situation one person entrusts
himself to the control and protection of another, with a consequent loss of control to
protect himself.”) (quotation marks and citation omitted); Dawe v Dr Reuven Bar-Levav
& Assoc, PC,

485 Mich 20, 26

780 NW2d 272

 (2010) (same); 2 Restatement Torts, 2d,
§ 314A(4), p 118 (“One who is required by law to take or who voluntarily takes the
custody of another under circumstances such as to deprive the other of his normal
opportunities for protection is under a similar duty to [aid or protect] the other.”).



                                            7
predicated on an imbalance of control, where ‘one person entrusts himself to the control

and protection of another, with a consequent loss of control to protect himself.’”).

                      B. COMMON-LAW PREMISES LIABILITY

       As the majority and concurring opinions also recognize, our common law has long

recognized that a special relationship exists between “[o]wners and occupiers of land,”

Williams,

, and those who come onto the land.               Accordingly, our

common law imposes particular duties on the landowner that reflect the precise nature,

and are a function, of this special relationship. That is, the duty imposed is tailored to the

specific manner in which the person coming onto the land has entrusted himself to the

control and protection of the landowner, and has consequently lost some aspect of his

ability to protect himself.4 In Hoffner v Lanctoe,

492 Mich 450, 459-460

821 NW2d 88

(2012), this Court explained the precepts of this “well-recognized” common-law duty:

               The law of premises liability in Michigan has its foundation in two
       general precepts. First, landowners must act in a reasonable manner to
       guard against harms that threaten the safety and security of those who enter
       their land. Second, and as a corollary, landowners are not insurers; that is,
       they are not charged with guaranteeing the safety of every person who
       comes onto their land. These principles have been used to establish well-
       recognized rules governing the rights and responsibilities of both
       landowners and those who enter their land. Underlying all these principles
       and rules is the requirement that both the possessors of land and those who
       come onto it exercise common sense and prudent judgment when
       confronting hazards on the land. These rules balance a possessor’s ability

4
  When such a relationship exists, the particular duty that is imposed serves to alleviate
the particular entrustment and consequent loss of control that exists as a result of the
parties “relationship.” Thus, different duties are imposed in different circumstances.
See, e.g. Takacs v Detroit United R,

234 Mich 42, 49-51

207 NW 907

 (1926) (common
carrier).



                                              8
      to exercise control over the premises with the invitees’ obligation to assume
      personal responsibility to protect themselves from apparent dangers.

      The precise duty the landowner owes depends on the exact status of the other

person on the land. Hoffner,

492 Mich at 460

 n 8. There are “three common-law

categories for persons who enter upon the land or premises of another: (1) trespasser, (2)

licensee, or (3) invitee.” Stitt v Holland Abundant Life Fellowship,

462 Mich 591, 596

614 NW2d 88

 (2000).5 The landowner owes the following duty to invitees:

             With regard to invitees, a landowner owes a duty to use reasonable
      care to protect invitees from unreasonable risks of harm posed by
      dangerous conditions on the owner’s land. Michigan law provides liability
      for a breach of this duty of ordinary care when the premises possessor
      knows or should know of a dangerous condition on the premises of which
      the invitee is unaware and fails to fix the defect, guard against the defect, or
      warn the invitee of the defect. [Hoffner,

492 Mich at 460

.]

The landowner owes the following duty to licensees:

            A landowner owes a licensee a duty only to warn the licensee of any
      hidden dangers the owner knows or has reason to know of, if the licensee
      does not know or have reason to know of the dangers involved. The
      landowner owes no duty of inspection or affirmative care to make the
      premises safe for the licensee’s visit. [Stitt,

462 Mich at 596

.]

And finally, “[t]he landowner owes no duty to the trespasser except to refrain from

injuring him by ‘wilful and wanton’ misconduct.”

5
  “A ‘trespasser’ is a person who enters upon another’s land, without the landowner’s
consent.” Stitt,

462 Mich at 596

. “A ‘licensee’ is a person who is privileged to enter the
land of another by virtue of the possessor’s consent.”

 “Typically, social guests are
licensees who assume the ordinary risks associated with their visit.”

 “An ‘invitee’ is
‘a person who enters upon the land of another upon an invitation which carries with it an
implied representation, assurance, or understanding that reasonable care has been used to
prepare the premises, and make [it] safe for [the invitee’s] reception.’”

Id. at 596-597

,
quoting Wymer v Holmes,

429 Mich 66

, 71 n 1;

412 NW2d 213

 (1987).



                                             9
       I agree with the majority that “the law of torts has treated landlords and merchants

the same in the context of their [legal] duties to maintain the physical premises over

which they exercise control.” Ante at 7. It is correct that neither the “landlord” nor the

“merchant” has ever been excepted from these duties. The legal duties to protect visitors

from physical defects that apply generally to property-owners apply notwithstanding

whether the person who owns the property happens to be a “merchant” or a “landlord.”

Indeed, I am unaware of any class of persons excepted by our common law from these

legal duties in connection with their properties.

       Drawn solely from this fact, i.e., that a merchant and landlord share a common

legal duty to remedy physical defects, the majority undertakes the leap in logic that the

particular duty this Court has imposed on a merchant concerning third-party criminal

conduct should identically be imposed on a landlord. Ante at 22 (“In line with our

consistent historical treatment of merchants and landlords in the context of their duty

with regard to hazards in areas under their control, we apply the MacDonald framework

to [landlords] . . . .”). I respectfully disagree with such analysis because I do not see how

this unremarkable and irrelevant historical “consistency” can have any logical bearing on

the instant case. This “duty with regard to hazards in areas under their control” is

universally applied to landowners, with all landowners being treated “consistently” in this

regard. However, the fact that our common law has imposed this general and well-

established duty regarding physical defects in property on both merchants and landlords

tells us nothing about whether merchants and landlords should be treated equivalently

when it comes to third-party criminal conduct. The absence of even a perfunctory


                                             10
analysis in this regard overlooks that the body of law that has developed concerning

physical defects in property, which of course encompasses equally the property of a

merchant-landowner and a landlord-landowner, has no obvious relevance in a case that

concerns liability for third-party criminal conduct.6

       Again, the majority provides little analysis regarding the current state of our

common law as it relates to a landlord’s distinctive liability for third-party criminal

conduct. The majority does not compare the development of the common law as to a

merchant’s liability for third-party criminal conduct with that of the landlord. It does not

attempt to compare or contrast the distinct circumstances of the merchant and the

landlord in terms either of their control over their property or the resultant loss of control

on the part of others to protect themselves from third-party criminals. And the majority

does not take into consideration why a landlord should be treated like a merchant where,

as here, the landlord, unlike the merchant, has never held his land open to the public. As

discussed below, the body of common law that has developed as to a merchant’s liability

6
  Indeed, there is a corollary to the landlord’s duty with regards to hazards in the common
area: the tenant bears responsibility for conditions in those parts of the leasehold under
the tenant’s control. See Williams,

 n 10 (“The landlord is not liable for
injuries that occur within the boundaries of the leased premises.”). Why then, under the
majority opinion’s analysis, would a tenant, in his area of control, not bear the same
obligation as a landlord to protect others from third-party criminal conduct? Why would
every landowner not owe this same duty? See Miller v Whitworth, 193 W Va 262, 267-
268;

455 SE2d 821

 (1995) (quoting Clarke v JRD Mgt Corp, 118 Misc2d 547, 549;

461 NYS2d 168

(1983) (“The trend toward enlarging the duty of landlords and other private
parties to provide security against criminal acts, even in the absence of agreements to do
so, has the potential of reaching absurd proportions. One can foresee landowners,
proprietors of restaurants, stores, theaters, banks, schools and, indeed, public buildings
being civilly responsible for all crimes on their premises.”). I would add to the foregoing
list homeowners and farmers.

11
for third-party criminal conduct-- a liability which is premised on the merchant holding

his land open to the public-- is irrelevant to the circumstances of a residential landlord,

who has not held his land open to the public.

C. THIRD-PARTY CRIMINAL CONDUCT

Again, the general common-law rule is that a person has no legal duty to aid or

protect another from third-party criminal conduct and cannot be held liable for failing to

render aid or protection. Rather, the criminal perpetrator himself is exclusively

responsible for such conduct and for the harm caused.

1. MERCHANT LIABILITY FOR THIRD-PARTY CRIMINAL CONDUCT

Traditionally, courts have held that a merchant has no duty to aid or protect

invitees from criminal conduct. The merchant simply had the common-law duties related

to physical defects on the merchant’s premises. Rather, the criminal perpetrator himself

was exclusively responsible for his criminal conduct and for the harm caused.

However, as the majority correctly notes, in a line of cases beginning with Manuel

v Weitzman,

386 Mich 157

191 NW2d 474

 (1971), overruled in part on other grounds

Brewer v Payless Stations, Inc,

412 Mich 673

316 NW2d 702

 (1982), this Court began

to gradually erode the general common-law rule by imposing new duties to aid or protect

upon “merchants” and by holding such merchants liable for an increasing array of harms

caused by third-party criminal conduct. Manuel was a common-law negligence case in

which a patron sued a “tavern keeper” for the injuries sustained when assaulted by

another patron. This Court proceeded for the first time to expand the traditional scope of

common law premises liability for tavern-keeper merchants from a “duty to repair


                                            12
physical defects” to a “duty to protect patrons from third-party criminal conduct.” Id. at

164. From this beginning, the ‘tavern keepers’ common-law duty to aid or protect

invitees from third-party criminal conduct was extended on a case-by-case basis to other

types of merchants. See Mason v Royal Dequindre, Inc,

455 Mich 391, 399-403

566 NW2d 199

 (1997) (discussing such cases). Eventually, this Court clarified the scope of

the now-generally-applicable merchant’s duty in a line of cases that included Williams,

Scott, Mason, and MacDonald. In MacDonald, 464 Mich at 325-326, this Court provided

the following summary regarding the development that had occurred in this line of cases

and articulated the scope of the merchant’s legal duties:

               Under [Mason], 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 limited to reasonably expediting the involvement of the police
       and that there is no duty to otherwise anticipate and prevent the criminal
       acts of third parties. Finally, consistent with [Williams], and [Scott], 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.

This duty to aid or protect applies to merchants: “A possessor of land who holds it open

to the public for entry for his business purposes is subject to liability to members of the

public while they are upon the land for such a purpose . . . .” 2 Restatement Torts, 2d,

§ 344, pp 223-224 (emphasis added).7



7
  Although MacDonald rejected the argument that Mason adopted the entire “rule” set
forth in § 344 and comment f to § 344 of 2 Restatement Torts, 2d, MacDonald, 464 Mich
at 341-342, there was no indication that MacDonald rejected the Restatement’s
description of the class of people who owed this duty, or that the “merchant” duty in
MacDonald was imposed on anyone other than those who hold property open to the


                                            13
       As discussed below, the body of common law that developed for a possessor of

land who holds it open to the public for entry is inapplicable to a possessor of land who

does not open his land to the public for similar entry. Indeed, in Scott and Williams this

Court expressly stated that its decision did not apply with regard to “the application, in

the area of landlord-tenant law, of the principles discussed.” Scott,

444 Mich at 452

 n 15;

see Williams,

429 Mich at 502

 n 17. The majority opinion provides no convincing

explanation as to why a common area that is not open to the public should be treated in

the identical fashion as a merchant’s property that is open to the public.

      2. LANDLORD LIABILITY FOR THIRD-PARTY CRIMINAL CONDUCT

       Similarly, and in accordance with the general common-law rule, courts have

historically held that a landlord has no duty to aid or protect tenants or their social guests

from criminal conduct. In its analysis, the majority relies on Samson v Saginaw Prof

Bldg, Inc,

393 Mich 393

224 NW2d 843

 (1975) as the (sole) basis of support for its

conclusion that this Court has “expanded” our traditional common-law rule regarding the

duty imposed on a landlord such that a landlord can be held liable for the third-party

criminal conduct that occurred in this case. Ante at 12-13 (“[T]his Court expanded the

duty of both landlords and merchants to protect their tenants and invitees from those

criminal acts.”). Although Samson is indispensable to the overall majority argument

because it provides the legal basis for its conclusion that landlords are under a general



public. Indeed, MacDonald clarified the common-law duty owed by this very class of
people. Id. at 325-326.



                                             14
duty to aid or protect tenants and their social guests from third-party criminal conduct

under existing Michigan common law, it is easy to overlook this fact because the majority

opinion devotes only a single sentence to Samson, despite discussing general common-

law premises liability for nearly six full pages, and a merchant’s liability for the criminal

conduct of a third party for nearly five full pages. This point cannot be overstated:

Samson is the one and only case on which the majority opinion relies for its assertion

that the landlord has a common-law duty to aid or protect tenants and their social guest

from third-party criminal conduct under our common law. That is, according to the

majority, Samson recognized that a landlord and tenant have a special relationship of

entrustment and control, and that the duty the landlord owes on account of this special

relationship also extends to a tenant’s social guests. Thus, says the majority, defendant-

(landlord) owed a duty to aid or protect plaintiff (tenant’s social guest) under existing

Michigan common law and can be held liable for failing to render aid or protection.8 The

majority offers the following one sentence “analysis” of Samson:


8
  The majority opinion further makes it clear that the duty it has found under our existing
Michigan common law, and then “clarified” by imposing the merchant’s duty does not
come from this Court’s decision in Johnston v Harris,

387 Mich 569

198 NW2d 409

(1972), which, according to the majority opinion, concerned “the landlord’s duty to repair
physical defects in common areas.” Ante at 19 n 57 (“We do not address the status of
[Johnston], because it is not implicated under the facts of this case.”). The concurring
opinion likewise agrees that this case does not concern the type of physical defects that
were at issue in Johnston. Ante at 5 (concurring opinion) (“[P]laintiff . . . asserts that
defendant landlords owed him a duty to protect against imminent third-party criminal
conduct that was not the result of or facilitated by the landlord’s failure to maintain the
physical premises.”). The Court of Appeals reached this same conclusion. Bailey v
Schaaf,

293 Mich App 611, 640

810 NW2d 641

 (2011) (“[T]his case clearly does not
involve a condition on the land that placed Bailey at a heightened risk of harm at the


                                             15
               Similarly, in [Samson], this Court applied the same theory of
       liability [that it applied in Manuel] to a commercial landlord that leased
       office space to an outpatient mental health clinic but that had failed “to
       provide some security measures or warnings for the safety of its tenants and
       visitors . . . .” [Ante at 14 (citation omitted).]

       Because the majority never explains what it believes to be the theory of liability in

Manuel, it is unclear what exactly it believes to be the “theory of liability” this Court

applied in Samson.9 In any event, this Court made abundantly clear in Samson that it was

imposing a duty on the defendant only because he had held his land open to the public.10

Consequently, Samson’s “theory of liability” is utterly inapplicable here because

defendant did not do the same.

hands of third parties.”) (emphasis in original). I agree that Johnston as a genuine
premises-liability case is distinguishable from the instant case.
9
  To the extent the majority is asserting that the “theory of liability” was a function of the
duty owed by an owner or occupier of land, i.e., general premises liability, one might
wonder why the majority opinion gives no consideration to the open-and-obvious-danger
doctrine, a doctrine closely enmeshed with premises liability. Under this doctrine¸ a
landlord’s (or any other landowner’s) duty to protect others from dangerous conditions
“does not extend to conditions from which an unreasonable risk cannot be anticipated or
to dangers so obvious and apparent that an invitee may be expected to discover them
himself.” Williams,

429 Mich at 500

. It appears that the third-party criminal conduct at
issue here may well have been so obvious and apparent that an invitee may have been
expected to discover them himself. Indeed, the tenants appear to have quickly and easily
discovered the danger.
10
Clearly, landlords and tenants have the special relationship of entrustment and
consequent loss of control that exists between “owners and occupiers of land” and those
who come onto the land, and thus a landlord owes a tenant the traditional common-law
duties that pertain to address the entrustment and consequent loss of control that exist
under that particular special relationship. See n 5. But this landlord and his tenant’s
social guest do not have the particular special relationship of entrustment and consequent
loss of control that was the source of the Samson defendant’s duty to aid or protect the
plaintiff from third-party criminal conduct. Having a special relationship in one realm
does not signify that parties must have a special relationship in every realm.

16
In Samson, a clinic that treated mental-health patients, including those from the

Ionia State Prison, leased space on the fourth floor of a commercial office building from

the defendant, the owner of the building. Tenants in the building told the defendant’s

representatives that they were afraid of the clinic’s patients, who had to use the stairs and

elevators to reach the clinic, but the defendant took no action. The plaintiff, a secretary

employed by a lawyer who leased an office on the fifth floor, was attacked by one of the

clinic’s patients in an elevator while on her way to a coffee shop located on the first floor.

The plaintiff claimed that the defendant was negligent by failing to take appropriate

actions to ensure that the common area of the building were reasonably safe, and the jury

awarded damages. The Court of Appeals affirmed. On appeal, this Court held that it was

the responsibility of the defendant to ensure that the common area of the building were

reasonably safe, and that a jury question had been presented as to whether the defendant’s

failure to undertake precautionary security measures in relation to the clinic constituted a

breach of its legal duty to aid or protect the plaintiff.

Regarding the special relationship that provided the source of the defendant’s

duty, this Court explained:

Defendant leased its premises to the Mental Health Clinic. For this
act, by itself, our law imposes no liability and indeed should impose none.
Whether or not the landlord retains any responsibility for actions which
occur within the confines of the now leased premises is not now before this
Court and need not be answered. It would appear, however, that he would
not retain any responsibility for such actions except in the most unusual
circumstances. However, the landlord has retained his responsibility for the
common areas of the building which are not leased to his tenants. The
common areas such as the halls, lobby, stairs, elevators, etc., are leased to
no individual tenant and remain the responsibility of the landlord. It is his

17
responsibility to insure that these areas are kept in good repair and
reasonably safe for the use of his tenants and invitees.

The existence of this relationship between the defendant and its
tenants and invitees placed a duty upon the landlord to protect them from
unreasonable risk of physical harm. 2 Restatement Torts, 2d, § 314A(3).
[Samson,

.]

       As can be seen from the above quotation, this Court made it clear that its decision

was based on 2 Restatement Torts, 2d, § 314A(3), p 118, which provides:

               A possessor of land who holds it open to the public is under a similar
       duty to [aid or protect] members of the public who enter in response to his
       invitation. [Emphasis added.][11]

As subsection (3) makes clear, the duty imposed on the owner of the commercial office

building to aid or protect the attorney’s secretary was not based on the owner being a

“landlord” and leasing office space to commercial tenants, one of whom employed the

plaintiff. Indeed, a “landlord-tenant” relationship could not have been the source of the

defendant’s legal duty to aid or protect the plaintiff because the plaintiff and the

defendant did not even have a “landlord-tenant” relationship.12 That is, the defendant



11
   Samson cited 2 Restatement Torts, 2d, § 314A(3) as the sole support for its concluding
sentence in the relationship and duty section, the very same sentence in which it held that
that there was a relationship and duty. Samson,

. That this Court chose
to reference a single citation, and to cite a specific subsection can be nothing other than a
deliberate decision. To hold then that this Court was not genuinely applying the only
legal rule that it actually cited in support of its decision is, to say the least, a considerable
stretch.
12
  Black’s Law Dictionary (9th ed), defines “landlord” as “[o]ne who leases real property
to another,” and “tenant” as “[o]ne who holds or possesses lands or tenements by any
kind of right or title.”

 It defines “landlord-tenant relationship” as:



                                               18
was not the plaintiff’s landlord and the plaintiff was not the defendant’s tenant. Rather,

the only relationship the plaintiff had with the defendant was that the plaintiff was

employed as a secretary by one of the defendant’s tenants.

         However, what is most obvious and pertinent about the Samson analysis is that the

special relationship, and attendant legal duty to aid or protect, was a function of the

defendant holding his land open to the public.13 Thus, in the same way that the owner of

a mall leases individual storefronts to commercial tenants and invites the public into the


                The legal relationship between the lessor and lessee of real estate.
         The relationship is contractual, created by a lease (or agreement for lease)
         for a term of years, from year to year, for life, or at will, and exists when
         one person occupies the premises of another with the lessor’s permission or
         consent, subordinated to the lessor’s title or rights. [Id.]
13
     The concurring opinion states:

                Justice MARKMAN argues that Samson is distinguishable because it
         involved a commercial landlord, not a residential landlord, and Samson
         cited to § 314A(3) of the Restatement, which addresses premises owners
         who hold their land open to the public. Also, commentators have surmised
         that the duty imposed in Samson may be characterized as arising out of the
         defendant’s act of leasing the premises to a potentially dangerous tenant.
         Dobbs, The Law of Torts, § 325, p 880 n 5 (citing Samson and explaining
         that some jurisdictions impose a duty on a landlord if the landlord helped
         create the danger that harmed the plaintiff). [Ante at 7-8 (concurring
         opinion).]

First, although Samson involved a commercial landlord, this Court made it clear that it
was imposing a duty on the defendant not because he was a commercial landlord but
because he held his land open to the public. Second, regarding the commentator’s theory
of Samson, this Court went out of its way to make it clear that this was not the basis for
its decision, stating:

                Defendant leased its premises to the Mental Health Clinic. For this
         act, by itself, our law imposes no liability and indeed should impose none.
         [Samson,

.]


                                              19
common area over which the owner retains control (e.g., walkways, restrooms,

escalators), the defendant in Samson leased the individual offices to commercial tenants

and invited the public into the common area over which it retained control. According to

2 Restatement Torts, 2d, § 314A(3), which, again, constituted the only stated legal basis

for our decision in Samson, the owner has a legal duty to aid or protect invitees because it

has held these areas open to the public, not because the owner happened also to be a

“landlord” who leased property to commercial “tenants” in the building.

       In contrast, and particularly relevant to this case, the common area of a residential

apartment building is not open to the public, nor is the general public invited to gather

there. Whether a residential common area lies within an expansive apartment complex or

within a large house converted into apartments, the world is not invited into these areas.

Rather, the common area of an apartment building is simply not a place of public use or

gathering from which a landlord, in the same manner as a merchant or mall owner, profits

from the presence of the very public that has been invited onto his property, and therefore

must in fairness share in the legal risks to which public invitation may give rise. The

common area of a residential apartment is by its nature private and open only to those

persons invited onto the property. It is to all significant purposes the equivalent of a

home, in which residents are generally responsible for their own protection from third-

party criminal conduct. Absent some compelling explanation as to how the differences

between a home and an apartment impose on residents of the latter some real diminution

in the ability to protect oneself from such conduct, the legal duty to aid or protect that this

Court recognized in very different circumstances in Samson on the basis of Restatement,


                                              20
§ 314A(3) is inapplicable to this case, and there is no other decision of this Court that

stands for the same proposition that the majority opinion erroneously attributes to

Samson.

      The majority fails to account for this Court’s specific citation in Samson to

Restatement, 2d, § 314A(3). By failing to recognize that the legal duty at issue in

Samson was predicated on the special relationship set forth in § 314A(3), the majority is

left free to determine at its own discretion that the legal duty there was predicated on

some other special relationship . In other words, by not giving consideration to the

exclusive reliance in Samson placed on Restatement, § 314A(3), the majority is able to

characterize the special relationship in Samson as it sees fit and to assert that the legal

duty identified in that case was imposed on the basis of that special relationship, rather

than on the basis of the special relationship that, in fact, was expressly at the heart of

Samson and that was grounded on Restatement, § 314A(3). Although in this case, the

majority deems that a “landlord-tenant” relationship constituted the source of the legal

duty to aid or protect imposed in Samson, in the next case it could just as easily identify

such legal duty as reposing in a “building owner-elevator rider” special relationship, or a

“building owner-lawyer’s secretary” special relationship, as the source of a defendant’s

legal duty to aid and protect. Whatever check or constraint can reasonably be derived

from Restatement, § 314A(3) on the scope of exceptions to the general rule in Michigan

that there is no legal duty to aid or protect another from the criminal conduct of third

parties has been eroded by the free-form analysis of the majority opinion.




                                            21
       Given that Samson is inapplicable, the majority opinion lacks support for its

assertion that the landlord here had a common-law duty to aid or protect a tenant’s social

guest from third-party criminal conduct under the existing common law.14 Rather, the

majority is altering the common law by creating a new special-relationship exception to

the common-law rule that there is no legal duty to aid or protect another from third-party

criminal conduct and thus imposing on “landlords” whose property is not open to the

public, new legal responsibility and accountability for the criminal conduct of third

parties.15


14
   Even if our decision in Samson had been predicated on the existence of a landlord-
tenant special relationship, there is no such special relationship in the instant case because
plaintiff, again, was not a tenant. The majority supplies no explanation as to why a
landlord owes a tenant’s social guest the same duty it owes the tenant himself, with
whom it has a landlord-tenant relationship. The majority merely labels the tenant’s social
guest an “invitee” without any further explanation. However, “[t]ypically, social guests
are licensees who assume the ordinary risks associated with their visit.” Stitt,

462 Mich at 596

; see Jack v Fritts, 193 W Va 494, 499;

457 SE2d 431

(1995) (holding that a
landlord owes no duty to a tenant’s social guest to protect that guest from third-party
criminal conduct because such a duty is predicated on the existence of a landlord-tenant
special relationship and the landlord and tenant’s social guest lack any such relationship).
15
Moreover, the majority provides no definition of “landlord.” It is thus unclear exactly
who is now subject to this new duty and legal liability. Is a “landlord” “[o]ne who leases
real property to another?” Black’s Law Dictionary; see n 15. Or does the statutory
definition of “landlord” provided in this state’s Landlord Tenant Relationship Act apply?
See MCL 554.601(c) (“‘Landlord’ means the owner, lessor, or sublessor of the rental unit
or the property of which it is a part and, in addition, means a person authorized to
exercise any aspect of the management of the premises, including a person who, directly
or indirectly, acts as a rental agent, receives rent, other than as a bona fide purchaser, and
who has no obligation to deliver the receipts to another person.”). Or perhaps some other
definition? The majority does not say. If a child moves home after college and his
parents charge him $100 a month to “rent” a room, do the parents now owe this new
“landlord” duty to their child and all of his or her guests? Is a person who rents out his
basement apartment now subject to this new legal duty? What of the owner of a duplex

22
3. “CLARIFYING” SAMSON DUTY
After firstly concluding erroneously that defendants are subject under our common

law to Samson, the majority then, secondly, proceeds to transform the Samson duty as a

function of “clarifying” it, and then, thirdly, it effectively overrules Samson by “limiting”

it. The majority states that although Samson “implied some duty for a landlord . . . to

take prophylactic measures to prevent third parties’ criminal acts before they are

imminent, it did not specifically articulate the measures that a landlord . . . must take to

obviate the hazard of third parties’ criminal acts.” Ante at 14. The majority states that

the “implied” duty in Samson was “amorphous,” ante at 14, and then “clarifie[s] . . . the

scope of the [Samson] duty,” ante at 16, by imposing onto a landlord the entire body of

common law that developed as to a merchant’s liability for third-party criminal conduct.

See ante at 19 (“the duty clarified today”).

This “clarified” duty imposed from the line of common-law decisions concerning

a merchant’s liability for third-party criminal conduct has no bearing on the question of

what duty, if any, should be imposed on the landlord, at least absent compelling

justification. Indeed, the majority adopts this merchant’s duty despite the fact that the

landlord in this case bears little resemblance to a merchant, and despite the fact our

common law has in no way treated a merchant and a landlord in an equivalent fashion

who lives in one half and rents out the other? Is he subject to this new legal duty? All
that is certain is that the present opinion of the Court will yield new litigation, new
creative theories of legal liability, higher insurance premiums on landlords, and that some
unknown number of landlords will ultimately be held legally responsible and accountable
in the courtroom for the criminal conduct of third parties.

23
when it comes to third-party criminal conduct. Even if one were to overlook that in this

case there is no duty to be “clarified” because the Samson duty does not apply to

landlords, the “clarified” duty applied in lieu of the Samson duty is in fact a new duty that

this Court has never before imposed. Notably, if the majority’s “now-clarified” duty

were to be applied in Samson-- the very case on which the majority relies for the legal

duty that it is now “clarifying”-- Samson would be effectively overruled because there

would be no factual basis for upholding the jury verdict that imposed liability on the

landlord.16 Despite this, the majority still fails to acknowledge that it is altering the

common law of this state, opining only that “[t]o the extent this holding . . . conflict[s]

with Samson, we limit Samson to the duty clarified today and in MacDonald.” Ante at

19.

Moreover, although the majority acknowledges that we have imposed a legal duty

to affirmatively aid or protect only in exceptional circumstances in which there is some

16
The duty imposed in Samson required the landlord to “investigate” and take “available
preventative measures” where tenants “voiced their concern and uneasiness over the
[mental patients’] use of the elevators and stairwells of the building.” Samson,

393 Mich at 404, 411

. In contrast, under the “clarified” Samson duty-- i.e., the MacDonald duty-- a
landlord has no obligation to “investigate” or “take any preventative measures” with
regard to third-party criminal conduct. The landlord’s only duty is to “make reasonable
efforts to expedite police involvement,” ante at 20, when confronted with a “specific
situation occur[ring] on the premises that would cause a reasonable person to recognize a
risk of imminent harm to an identifiable invitee,” MacDonald,

. The
victim in Samson was robbed in seclusion, in an elevator. Samson,

393 Mich at 398-399

.
When the elevator “reached the ground floor, [the third-party criminal] ran away.”

Id. at 399

. The landlord in Samson thus lacked notice of third-party criminal conduct sufficient
to trigger his MacDonald duty to call the police. That is, he had no notice whatsoever
that a crime was occurring in the elevator. See ante at 8 n 6 (concurring opinion) (“[T]he
duties at issue in Samson and MacDonald appear distinguishable.””).



                                             24
special relationship, it fails to explain how this test has been met here and how the “now-

clarified” duty it imposes is designed to mitigate against the consequences of the

particular entrustment and consequent loss of control that exists under these parties’

special relationship.    Before legal responsibility and accountability for third-party

criminal conduct is apportioned and extended beyond the actual criminal perpetrator

himself, this Court is obligated under its own “control and protect” standard to show

clearly how: (a) a person can fairly be said to have entrusted himself to the control and

protection of another; (b) such entrustment was reasonable; and (c) as a result of such

entrustment, there has been a consequent loss of control by that person to protect himself.

The majority opinion not only does none of these things before redefining the common-

law legal duties in this case, but it also fails to answer what is invariably the ultimate and

practical inquiry in a case in which the common law is to be altered-- what has changed

in our society, what has evolved in our customs and practices and values, what is

different as to our expectations in terms of the law, that justifies imposition of a legal

duty in 2013 on landlords to aid or protect tenants given that there has been no such legal

duty in the past 176 years of Michigan's common law?

       I have no doubt that this Court possesses the legal authority to undertake today’s

decision, and I can understand how reasonable people can differ from my own viewpoint

as to the wisdom of the majority’s course of action, but this Court today undertakes

something that is significant and consequential when it redefines the legal consequences

of criminal conduct and establishes new legal duties in that regard within our common




                                             25
law. This Court, in my judgment, owes a far more thorough explanation in support of

why this redefinition of our legal rights and responsibilities has now become necessary.

       Although I certainly agree with the majority that a landlord has a substantially

higher degree of control over the physical structures and architecture of the common

area, I fail to follow how that higher degree of control, which is already accounted for by

the duties imposed under traditional common-law premises liability principles, has any

bearing on whether tenants or their social guests have entrusted themselves to the

“control and protection” of the landlord and, in so doing, have diminished or

compromised their own ability to protect themselves against third-party criminal

conduct. According to the majority opinion, “as a matter of law, the duty to respond

requires only that a landlord make reasonable efforts to expedite police involvement.”

Ante at 20. Making reasonable efforts to expedite police involvement is apparently all

that is required by the majority's rule. Per the majority, the landlord is not required to

modify or repair the common area in any way that makes criminal conduct less likely, he

is not required to take control of these areas and actively root out criminal conduct that

may be occurring or that is imminent, and he is not required to institute surveillance or

any other particular security precaution. If he were required to do any of these things, I

might agree with the majority opinion that the landlord would be in the better, if still not

exclusive, position to undertake these measures as a function of his control over the

common area. But by the majority’s holding, the landlord is not obligated to do such

things, because that is not what the MacDonald legal duty requires. Indeed, the landlord

is not even required to make himself available to tenants so that he may become better


                                            26
aware that a third party’s criminal conduct may be imminent. In light of the specific

legal obligations, and nonobligations, imposed on the landlord via MacDonald, how

precisely does the landlord’s greater control over the common area place the landlord in a

better position to “make reasonable efforts to expedite police involvement?” And how

precisely does the landlord’s greater control over the common area have any bearing

whatsoever as to whether the landlord or tenants and their social guests are in a better

position to undertake such efforts? Where a third-party criminal threat arises, and where

the landlord becomes aware of that threat, what exactly is the relevance of the landlord’s

control over the common area of the property? How does this control assist the landlord,

or hinder the tenant, in attempting to “expedite police involvement.” The majority

opinion does not say. To take into consideration only a single factor, would not the

development of cellular-telephone technology over the past generation render tenants in

2013 even more capable of expediting such police involvement than tenants in 1983,

1903 or 1843?17


17
  The concurring opinion contends that there is a “reasonable expectation that landlords
will provide some degree of supervision and control over the activities occurring within
the common areas.” Ante at 9 (concurring opinion). However, it does not say how
“provid[ing] some degree of supervision and control over the activities occurring within
the common areas” is any different than “expecting” the landlord to provide a safer
environment than that encountered in the community-at-large, the very argument this
Court soundly rejected in Williams, 429 Mich App at 502:

             [A]lthough defendant can control the condition of his premises by
      correcting physical defects that may result in injuries to its invitees, it
      cannot control the incidence of crime in the community. Today a crime
      may be committed anywhere and at any time. To require defendant to
      provide armed, visible security guards to protect invitees from criminal acts


                                           27
       Furthermore, the tenant who believes that criminal conduct is imminent is free to

make reasonable efforts on his own and to expedite police involvement, and is in no way

prevented from taking such an action as a result of the landlord’s higher degree of control

over the common area. The tenant is in closer proximity to his home, a presumed place

of safety to which he and his guests may retreat, and again is in no way prevented from

undertaking such actions as a result of the landlord’s higher degree of control over the

common area. Indeed, in this very case, the security guards hired by the landlord

themselves had no obvious place of safety or retreat.18 Even if the landlord happens to be


       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. Defendant simply does not have that
       degree of control and is not an insurer of the safety of its invitees.

Even if we assume that some tenants or their social guests may “expect” the landlord to
“provide some degree of supervision and control,” no explanation is provided for why
such an “expectation” is reasonable or would cause responsible persons to be diminished
or compromised in their own ability to protect themselves. In fact, this Court has
explicitly rejected liability on the basis of a person assertedly being “induced to relax his
normal vigilance,” Scott

444 Mich at 451

, yet such speculation is exactly what underlies
the tenant behavior that the majority presents as justification for imposing greater legal
duties on the landlord. Indeed, although a property owner can always control the
condition of his premises by correcting physical defects that may result in injuries, he
cannot always affect, much less control, the incidences of crime within his community.
The inability of government and law enforcement officials to abolish all violent crime
does not justify transferring liability to a landlord or to the security company that the
landlord hires. See Williams,

429 Mich at 503

.
18
   The security guards did not possess keys to the landlord's office/private area. One
guard had a personal cell phone, and the other had no phone. Thus, only one even
possessed the present ability to contact the police. Moreover, both guards lacked the
threshold authority the majority deems essential to its imposition of a duty on the
landlord; neither had any right to alter or control any physical structure in the common
area.



                                             28
actually present within the common area, the tenant does not lose any ability to protect

himself as a consequence of the landlord’s higher degree of control.

                     4. MACDONALD DUTY AND LANDLORDS

       Not only, I believe, has the majority opinion failed to present “compelling

reasons” for altering the common law, but the status quo represents responsible and

rational public policy, a consideration crucial to this Court’s common-law

decisionmaking.    Indeed, extending the MacDonald duty advanced by the majority

opinion is contrary to sound public policy, in my judgment, for several reasons.

       Presence-- First, to reemphasize a point made earlier, there is an important

distinction between the merchant in MacDonald and the landlord in this case in that the

merchant (or his employees and agents) almost always has to be physically present on the

business premises to serve customers and otherwise conduct business. By contrast, the

landlord (and his employees or agents) has no similar reason to be physically present.

This is particularly true of landlords of more modest rental properties. Indeed, a landlord

may have no reason at all to visit a common area of an apartment building for weeks or

months on end, and even large rental properties may have their leasing and management

offices off-site, far away from the common area of the actual apartment building. In

other words, the merchant’s presence on the premises of his property is largely

obligatory, whereas the landlord’s presence in the common area of his property is largely

discretionary.

       As a result, imposing the MacDonald duty on landlords will almost certainly

encourage at least some landlords to take greater care in avoiding the common area since


                                            29
it is their largely discretionary presence in such area that apparently constitutes the only

means by which the landlord can gain the awareness of criminal conduct in the first place

that would give rise to the MacDonald duty.19 In other words, a landlord who provides

security guards or video cameras or alarms in the common area will ironically be exposed

to a greater risk of legal liability for the criminal conduct of third parties than will a

landlord who simply fails to take take such precautions. As a consequence, imposing the

MacDonald legal duty can only have the effect of disincentivizing and discouraging some

landlords, especially those in the high-crime neighborhoods most in need of vigilance

against third-party criminal conduct, from instituting the very security measures that will

trigger this duty in the first place. Compare, MacDonald, 464 Mich at 341 (asserting that

the dissent’s rule in that case, which would have allowed the character of the merchant’s

business and an assessment of whether prior similar conduct had occurred on the

premises to be considered, “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”). Imposing this new

liability on landlords will do nothing to promote safety for the low-income tenants in


19
     The majority opinion clearly recognizes that such awareness is crucial:

                 Only when given notice of [a situation occurring on the premises
         that would cause a reasonable person to recognize a risk of imminent harm
         to an identifiable tenant or invitee] is a duty imposed on a landlord. Notice
         is critical to the determination whether a landlord’s duty is triggered;
         without notice that alerts the landlord to a risk of imminent harm, it may
         continue to presume that individuals on the premises will not violate the
         criminal law. [Ante at 18-19.]


                                              30
high-crime neighborhoods who are the most in need of protection. Instead, it is likely to

harm these very individuals.

       Disincentives-- Second, imposing the MacDonald legal duty on landlords runs

afoul of the policies underlying this Court’s decision in Scott, in which this Court

explicitly declined to adopt a policy that “would penalize merchants who provide some

measure of protection, as opposed to merchants who take no such measures.” Scott,

444 Mich at 452

 (quotation marks and citation omitted). Because only the landlords who

provide security in the common area will face potential liability under MacDonald, the

majority's new legal duty will penalize precisely those landlords who “provide some

measure of protection.” The landlords who do so will be held to a higher legal duty than

those who do not, and those landlords who are the most compelled to undertake such

protection as a result of high levels of criminal conduct within the neighborhoods in

which their properties are located will be the hardest hit by potential lawsuits. Clearly in

this case, the defendants’ provision of security guards is the only thing that gives rise

under the majority opinion to potential legal responsibility for third-party criminal

conduct.

       False Alarms-- Third, imposing the MacDonald duty on landlords will result in a

considerable increase of “false alarm” calls to police, since failure to call the police is the

principle step landlords must take to avoid liability. No landlord will risk exercising any

judgment if he becomes aware by any means of a problem arising on his property-- an

unidentified person, a broken window, an unaccounted-for piece of personal property, a

nearby fracas, or anything at all that might be viewed in hindsight as having created a


                                              31
“specific situation occur[ring] on the premises that would cause a reasonable person to

recognize a risk of imminent harm to an identifiable invitee,” MacDonald,