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sample response to motion for summary disposition by nonmoving party (usually the plaintiff) which generally opposes what the movers want--to win.
STATE OF MICHIGAN IN THE EATON COUNTY CIRCUIT COURT RESPONSE TO Sandra Cowling, as next friend of MOTION FOR Timothy Cowling, a minor, and SUMMARY Sandra Cowling, DISPOSITION Plaintiffs, BRIEF OPPOSING MOTION FOR SUMMARY DISPOSITION v. PROPOSED ORDER PROOF OF SERVICE International Department Stores, Inc., File No: 03-1234-NI a Michigan Corporation, and Sam Security, jointly and severally, Hon. Ima Judge Defendants. ___________________________________________________________________________/ Evelyn C. Tombers (P44444) Andrew Quinn (P22222) Tombers and Associates, P.C. Quinn and Quinn, P.C. Attorneys for the Plaintiff Attorneys for the Defendants 300 S. Capitol Ave. 217 S. Capitol Ave. Lansing, MI 48933 Lansing, MI 48933 (517) 371-5140 517-555-1212 __________________________________________________________________________/ RESPONSE TO MOTION FOR SUMMARY DISPOSITION1 The Plaintiffs, Sandra Cowling as next friend of Timothy Cowling, and Sandra Cowling, through their attorneys, Tombers and Associates, P.C., oppose the Defendants’ Motion for Summary Disposition and respond to it as follows: 1. The Plaintiffs admit that Timothy Cowling was injured when he was bumped off of the curb in front of the International Department Store (the Store) and into the path of an oncoming car. In addition, Sam Security and the 1 This response and the brief opposing summary disposition were originally prepared by Marilyn Tombs for Profs. Sundstrum and Schlossberg’s Michaelmas 1998 Law Practice class. It has been edited. Note: it does not reflect the current state of Michigan law. 1 Store created the dangerous condition by ejecting eight-year-old Timothy Cowling, and the significantly older youths who injured him, from the store. (Deposition of Sam Security at 12:2-9, attached as Exhibit A.) 2. Because the Store and Sam Security controlled what happened to Timothy Cowling, they owed Timothy Cowling a duty to protect him. Dykema v Gus Macker Enterprises, Inc, 196 Mich App 6, 8; 492 NW2d 472 (1992). 3. While a duty owed generally ends when the person leaves the premises, Locklear v Stinson, 161 Mich App 713, 717-718; 411 NW2d 834 (1987), that rule is not absolute. Schneider v Nectarine Ballroom, Inc (On Remand), 204 Mich App 1, 6-7; 514 NW2d 486 (1994). 4. Timothy Cowling may have been outside the store when the injuries occurred, but according to the court in Schneider, supra, a court errs when it focuses solely on the site of the injury. Id. at 4. Rather the court must ask if the defendant increased the risk of harm by ejecting a plaintiff into the danger. Id. at 5. 5. Plaintiffs deny that the Store’s duty to Timothy Cowling ended once Timothy was no longer inside the Store. 6. Plaintiffs deny that the Store’s duty to Timothy Cowling ended once Timothy was no longer in an area that the Store owned or controlled. See Schneider, supra at 5. 7. Plaintiffs admit that Timothy was outside of the Store’s building when he was injured. 8. Plaintiffs admit that in general an invitor’s duty to its invitees does not require the invitor to protect its invitees from the criminal activities of others. But when the criminal acts are related to or arise from the invitee’s purpose on the invitor’s premises, the invitor owes a duty to protect the invitee from those criminal acts. Alexander v American Multi-Cinema, AMC, 450 Mich 877; 540 NW2d 674 (1995) (Levin, J. dissenting) (citing cases in which the court held the invitor owed a duty to protect from criminal activity). 9. Plaintiffs admit that the youths outside the store were causing a disturbance. Plaintiffs neither admit nor deny that the youths violated the disorderly persons statute, MCL 750.167, because a jury must determine guilt or innocence in a criminal matter. 10. Plaintiffs admit that one of the youths pushed Timothy Cowling from the sidewalk. 2 11. Plaintiffs deny the allegations in paragraph 11 of Defendants’ Motion for Summary Disposition because the allegations are not true. 12. Plaintiffs deny the allegations in paragraph 12 of Defendants’ Motion for Summary Disposition because the allegations are not true. For these reasons, and for the reasons stated in Plaintiffs’ brief opposing this motion, the Plaintiffs respectfully ask this Court to deny the Defendants’ Motion for Summary Disposition of Count II of the Plaintiffs’ Complaint. Respectfully submitted: ___________________________________ Evelyn C. Tombers (P44444) Tombers and Associates, P.C. 300 S. Capitol Ave. Lansing, MI 48933 Dated: July 21, 2002 3
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