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response to motion for summary disposition

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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.

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									                            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.


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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.




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     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




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