STATE OF MICHIGAN
IN THE EATON COUNTY CIRCUIT COURT
Sandra Cowling, as next friend of
Timothy Cowling, a minor, and
International Department Stores, Inc., File No: 03-1234-NI
a Michigan Corporation, and
Sam Security, jointly and severally, Hon. Ima Judge
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
BRIEF IN SUPPORT OF DEFENDANTS’
MOTION FOR SUMMARY DISPOSITION1
STATEMENT OF FACTS
On April 6, 2002, Sandra Cowling left her eight-year-old son alone in the
electronics department of the International Department Store (the Store) at the
Big Mall in Lansing while she shopped for bedspreads. (Deposition of Sandra
Cowling at p 6-7:25-10, attached as Exhibit C.) Shortly after Ms. Cowling left
1 This motion and the brief in support of it were originally prepared by Giuseppina M. Fricano
for Profs. Sundstrum and Schlossberg‘s Michaelmas 1999 Law Practice class. It has been
her son alone, six or seven teen-aged boys entered the store. (Deposition of
Sam Security at p 7:6-7, 17-20 attached as Exhibit D.)
The teenagers almost immediately began causing a disturbance. (Id. at
8:3-10.) Sam Security, a seven-year veteran of the store‘s security force,
noticed that the boys ―were engaging in some sort of distraction or diversion so
that somebody could steal something.‖ (Id. at 5:2, 8:3-5.) When Mr. Security
noticed that a video tape was missing, he suspected that one of the boys – all of
the boys, including Timothy Cowling – had stolen the video tape. (Id. at 7:23-
25.) Mr. Security took all of the boys to the security office where he looked for
and asked them about the tape. (Id. at 10:6-11.)
After Mr. Security was through, he escorted the boys, including Timothy
Cowling, from the store. (Id. at 12:4-9.) Timothy Cowling never protested his
custody and never said anything to Mr. Security. (Id. at 10:18-20.) Mr.
Security did not stay outside with the boys. (Id. at 12:10-13, Timothy Cowling
Dep at 13:4-8.)
Once outside, the older boys again began causing a disturbance.
(Timothy Cowling Dep. at 12:22-24.) They shoved each other, yelled at each
other, and called each other ―nasty names.‖ (Id.) During this disturbance, one
of the boys pushed Timothy Cowling off of the sidewalk. (Id. at 13:1-2, 14-17.)
Timothy was struck by a passing car. (Id. at 13:17.)
Timothy‘s mother learned of these events only after she finished
shopping and came out of the store. (Sandra Cowling Dep at 8:10-14.)
Timothy and his mother have sued the International Department Store
and Sam Security for, among other things, negligence, claiming that the Store
and Mr. Security are somehow liable for Timothy‘s injuries. The Store and Mr.
Security have filed this motion for summary disposition of the negligence count
in the Complaint because as a matter of law, they neither owed nor breached
any duty to Timothy Cowling.
I. Standard of review
A. Under MCR 2.116(C)(10)
―In reviewing a motion for summary disposition brought
under MCR 2.116(C)(10), a trial court considers affidavits,
pleadings, depositions, admissions, and documentary evidence
filed in the action or submitted by the parties, MCR 2.116(G)(5), in
the light most favorable to the party opposing the motion. A trial
court may grant a motion for summary disposition under MCR
2.116(C)(10) if the affidavits or other documentary evidence show
that there is no genuine issue in respect to any material fact, and
the moving party is entitled to judgment as a matter of law. MCR
―In presenting a motion for summary disposition, the moving
party has the initial burden of supporting its position by affidavits,
depositions, admissions, or other documentary evidence.
Neubacher v Globe Furniture Rentals, 205 Mich App 418, 420; 522
NW2d 335 (1994). The burden then shifts to the opposing party to
establish that a genuine issue of disputed fact exists. Id. Where
the burden of proof at trial on a dispositive issue rests on a
nonmoving party, the nonmoving party may not rely on mere
allegations or denials in pleadings, but must go beyond the
pleadings to set forth specific facts showing that a genuine issue of
material fact exists. McCart v J Walter Thompson, 437 Mich 109,
115; 469 NW2d 284 (1991). If the opposing party fails to present
documentary evidence establishing the existence of a material
factual dispute, the motion is properly granted. McCormic v Auto
Club Ins Ass'n, 202 Mich App 233, 237; 507 NW2d 741 (1993).‖
[Smith v Globe Life Ins Co, 460 Mich 446, 454-455; 597 NW2d 28
(1999), quoting Quinto v Cross & Peters Co, 451 Mich 358, 362-
363; 547 NW2d 314 (1996).]
"A litigant's mere pledge to establish an issue of fact at trial
cannot survive summary disposition under MCR 2.116(C)(10)."
Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999).
Instead, a litigant opposing a properly supported motion for
summary disposition under this subrule must present
substantively admissible evidence to the trial court before its
decision on the motion, which creates a genuine issue of material
Sprague v Farmer‘s Ins Exch, 251 Mich App 260, 264-265; 650 NW2d 374, 376
B. Under MCR 2.116(C)(8)
A motion for summary disposition brought under [MCR
2.116(C)(8)] . . . tests the legal sufficiency of the complaint on the
basis of the pleadings alone. Beaudrie v Henderson, 465 Mich
124, 129; 631 NW2d 308 (2001). ―The purpose of such a motion is
to determine whether the plaintiff has stated a claim upon which
relief can be granted. The motion should be granted if no factual
development could possibly justify recovery.‖ Id. at 129-130; 631
Mack v City of Detroit, 254 Mich App 498, ___; 658 NW2d 492, 493 (2003).
Summary disposition is proper under MCR 2.116(C)(8) in a negligence suit if
the court determines as a matter of law that the defendants owed the plaintiff
no duty under the facts alleged in the complaint. Schneider v Nectarine
Ballroom, Inc, 204 Mich App 1, 4; 514 NW2d 486 (1994).
II. International Department Stores, Inc., and Sam Security did not
owe Timothy Cowling a duty to protect him harm where his injuries
stemmed from the unforeseeable criminal acts of a third person, and
where Timothy’s accident occurred outside of the store’s premises.
The Defendants, International Department Stores, Inc., and Sam
Security are entitled to summary disposition of Count II of Plaintiffs‘ Complaint
(negligence) for two reasons. First, the Store and Mr. Security did not owe
Timothy a duty to protect him from conditions outside the Store‘s premises:
Timothy‘s accident occurred in the Mall‘s parking lot. Second, the Store and
Mr. Security did not owe Timothy a duty to protect him from the unforeseeable
criminal acts of another: the youths outside were causing a disturbance and
one of them pushed Timothy pushed from the sidewalk into the path of an
In any negligence suit a plaintiff must allege and prove the following: ―(1)
a duty owed to the plaintiff by the defendant; (2) breach of duty; (3) causation;
and (4) damages. Moning v Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977),
reh den 401 Mich 951 (1977).‖ Locklear v Stinson, 161 Mich App 713, 715-
716; 411 NW2d 834 (1987). Duty is a question of law that this Court must
decide. Id. at 716. A duty is an obligation one actor has to behave in a certain
manner toward another. Id. The duty analysis involves looking at the
relationship between the actors, and it involves looking at the reasonableness
of the risk an actor‘s conduct created. Id. Stated otherwise, a legal duty is ―an
obligation recognized by law which requires an actor to conform to a certain
standard of conduct for the protection of others against unreasonable risk.‖
Swartz v Huffmaster Alarm Systems, Inc, 145 Mich App 431, 434; 377 NW2d
A. Neither the Store nor Mr. Security owed Timothy
Cowling a duty to protect him from unreasonable risks of
harm once Timothy left the Store.
While a shopkeeper generally owes its invitees a duty to keep them safe
from unreasonable risks of harm, that duty ends once the invitee is no longer
on the premises. Because Timothy Cowling was outside the Store when his
accident occurred, the Store no longer owed Timothy any duty. Accordingly,
summary disposition is appropriate, and this Court should grant it.
Even if the shopkeeper ejects a rowdy patron and then allows another
patron to follow, the shopkeeper is not liable when the first patron injures the
second. Locklear, supra at 717-718. In Locklear, the bar owner ejected the
defendant Stinson from the bar after Stinson fought the plaintiff Locklear. Id.
at 714. Locklear‘s personal representative claimed that the bar‘s employees
allowed Stinson to wait in the parking lot for Locklear to come out. Id. at 714-
715. Locklear left the bar, got into his car, drove away, and Stinson followed.
Id. at 715. The confrontation continued away from the bar, and Locklear was
eventually killed in an automobile accident. Id. Locklear‘s personal
representative sued the bar and claimed, in essence, that it had owed Locklear
a duty to protect him from Stinson. Id. at 717. The Court of Appeals
disagreed. It held that any duty the bar owner may have had ended when
Locklear left the bar and was ―no longer on the property owned or controlled by
the defendants.‖ Id. at 717-718.
Likewise, even if an invitee is impaired by ―alcohol, legal blindness, and
anxiety,‖ a premises owner is under no legal duty to prevent him from leaving
the premises. Swartz, supra at 435. In Swartz, the plaintiff left a restaurant
and was hit by a car when he tried to cross a busy highway. Id. at 433-434.
He claimed that the premises owner owed him a duty to prevent him from
leaving the premises and therefore keep him safe. Id. at 435. Again the Court
of Appeals disagreed. It refused to hold that one who had nothing to do with
the impairment should have a duty to protect the impaired person once that
person leaves the premises. Id. at 436. Once the plaintiff left the premises,
any duty the premises owner may have had to keep the plaintiff safe ended. Id.
Plaintiffs here claim that the Store and Mr. Security ejected Timothy
along with a group of rowdy youths. (Complaint at ¶¶ 25-26, Timothy Cowling
Dep, supra at 10:10-16.) Plaintiffs recognize that the accident did not occur
inside the store. (Complaint at ¶ 27.) As the court in Locklear made clear, the
premises owner‘s duty to the invitee ends once the invitee is no longer in an
area that the premises owner owns or controls. And as the court in Swartz
held, that duty ends even if the invitee is legally incapacitated. Like those
under the influence of alcohol, children have long been referred to as under a
legal incapacity. See, e.g., Armitage v Widoe, 36 Mich 124, *2 (1877)
(contracts), Reynolds v Garber-Buick Co, 183 Mich 157, 167; 149 NW 985
(1914) (contracts), Baker v Alt, 374 Mich. 492; 132 NW2d 614 (1965)
(contributory negligence), Burhans v Witbeck, 375 Mich 253; 134 NW2d 225
(1965) (contributory negligence), and Queen Ins Co v Hammond, 374 Mich 655,
132 NW2d 792 (1965) (contributory negligence). Thus, even if the Plaintiffs
were to argue that the Store and Mr. Security had a duty not to eject a child
from the store, according to the court in Swartz, that argument would be futile.
As a matter of law, then, any duty that the Store or Mr. Security may
have owed to Timothy Cowling while he was in the store ended when Timothy
left the store. Summary disposition is, therefore, appropriate, and this Court
should grant the Defendants‘ motion.
B. Neither the Store nor Mr. Security owed Timothy
Cowling a duty to protect him from the unforeseeable
criminal acts of others.
Summary disposition is appropriate here for another reason: a premises
owner does not owe its invitees a duty to protect them from the unforeseeable
criminal acts of others. Plaintiffs do not dispute that the other youths who
were ejected from the store were disturbing the peace. And while they were
disturbing the peace, one of them pushed Timothy Cowling into the path of an
oncoming car. Neither the Store nor Mr. Security, therefore, owed Timothy
Cowling a duty to protect him from another youth‘s criminal act. This Court
should grant the Defendants‘ motion for summary disposition.
An invitor does not owe its invitees a duty to protect them from criminal
activity of others. MacDonald v PKT Inc., 464 Mich 322, 335; 628 NW2d 33
(2001). Michigan law prohibits disorderly conduct. See MCL 750.167
(disorderly person defined), MCL 750.168 (penalties for violation of the
disorderly person statute). Under the statute, a person is a disorderly person if
the person ―is found jostling or roughly crowding people unnecessarily in a
public place.‖ MCL 750.167(1)(l). And under MCL 750.168, ―Any person
convicted of being a disorderly person [is] guilty of a misdemeanor.‖ Timothy
Cowling described the Young Hoods‘ conduct once they left the Store: ―[T]hey
started shoving each other, yelling at each other, calling each other nasty
names . . . they were right there by me and they just pushed, and shoved and
one of them pushed me into the street . . . .‖ (Timothy Cowling Dep at 12-13:
23-2.) The Young Hoods committed a crime. Neither the Store nor Mr.
Security owed Timothy Cowling a duty to protect him from that crime.
Moreover, merchants are not insurers of their patrons‘ safety—they do
not have a duty to protect them from unforeseeable risks. Williams v
Cunningham Drug Stores, Inc, 429 Mich 495, 500; 418 NW2d 381 (1998).2 A
merchant must be able to foresee that a danger specific to a particular invitee
exists before a duty will be imposed. Id. ―[F]or a special[-]relationship duty to
be imposed on a defendant, the invitee must be ‗readily identifiable as
foreseeably endangered.‘‖ Id.
Where a merchant does not know (or should not know) that an invitee is
endangered by another‘s criminal act, the merchant does not owe the invitee a
duty to protect him from that act. Perez v KFC National Management Co, 183
Mich App 265, 271; 454 NW2d 145 (1990). In Perez, a patron assaulted and
injured the plaintiff after that patron had argued with a clerk and left the store.
2 Note: This brief was originally drafted in 1999. It does not reflect the current
state of Michigan law.
Id. at 266-267. The trial court refused to grant the merchant‘s motion for
summary disposition; the court of appeals reversed. It held that in spite of the
earlier disturbance, the defendant could not have reasonably foreseen that the
patron posed a threat to the plaintiff because the earlier disturbance was not
directed at the plaintiff. Id. at 270-271.
Like the earlier disturbance in Perez, the earlier disturbance in the
electronics department was not directed at Timothy Cowling, and he admits as
much. (Timothy Cowling Dep. at 7:19-23.) He ―just tried to keep playing [his]
game and not look at those boys.‖ (Id.) Timothy Cowling did not even speak to
the Young Hoods; according to him, he was staying by himself ―playing Candy
Cruncher.‖ (Id. at 9:1-2.) As a result, neither the Store nor Mr. Security could
have reasonably foreseen that the Young Hoods posed a threat to Timothy
But where the court has held that a merchant had a duty to protect its
invitee from the criminal act of a third person, the merchant owed a duty
because the merchant had notice that the third person had a propensity for
violence. See e.g., Jackson v White Castle System, Inc, 205 Mich App 137; 517
NW2d 286 (1994), Schneider v Nectarine Ballroom, Inc, 204 Mich App 1; 514
NW2d 486 (1994). For example, in Jackson, the third person had already once
entered the restaurant carrying a baseball bat and had shoved and threatened
the plaintiff. Id. at 138. The third person left the restaurant but came back in
and shot the plaintiff. Id. The court of appeals held that the trial court should
not have granted the defendant‘s motion for summary disposition. Id. at 141.
The earlier assault on the plaintiff supported an inference that the defendant
knew or should have known of a specific risk of harm to the plaintiff. Id. at
142. This incident was not ―so random and instantaneous that the defendant
lacked notice to exercise reasonable care for its patrons.‖ Id. at 141.
Similarly, in Schneider, an altercation between the plaintiff and a third
person occurred inside the defendant‘s bar. A bar employee ejected them both,
and, once outside the bar, the third person injured the plaintiff. Id. at 3-4.
The court of appeals held that the bar owner had a duty not to eject the
plaintiff ―into a known, obvious, and imminently dangerous situation.‖ Id. at 7.
Unlike the defendants in Jackson and Schneider, the Store and Mr.
Security did not have notice that the youths had a propensity for violence or
would create a disturbance outside the store. The initial disturbance ended
once the boys were in the security office. (Deposition of Sam Security at 11:10-
16.) As Timothy Cowling concedes, he and the youths were in the security
office for ―a long time.‖ (Timothy Cowling Dep. at 9:23.) Unlike the imminently
dangerous situation in Schneider, the boys‘ conduct had ended long before
they were told to leave the store.
The facts here are not in dispute. There was no reason for either the
Store or Sam Security to know that the Young Hoods would disturb the peace
and bump Timothy Cowling off of the sidewalk outside the store and into an
oncoming car. Because the alleged danger to Timothy Cowling was not
foreseeable, neither the Store nor Mr. Security owed Timothy Cowling a duty to
protect him from the criminal act of a third person. Summary disposition is
appropriate, and this Court should grant it.
International Department Stores, Inc., and Sam Security are entitled to
summary disposition of Count II of the Plaintiffs‘ Complaint under either MCR
2.116(C)(8) or MCR 2.116(C)(10). A plaintiff does not state a claim for which
relief may be granted if the plaintiff has not alleged a legally recognized duty.
Here, the Plaintiffs have not pleaded facts sufficient to support their claim that
the Store and Mr. Security owed Timothy Cowling a duty. Specifically, neither
the Store nor Mr. Security owed Timothy Cowling to protect him from an
unreasonable risk of injury once Timothy Cowling left the Store.
Even if this Court goes beyond the Complaint and examines the facts,
the Plaintiffs cannot support the duty alleged because a merchant owes no
duty to protect its invitees from the criminal acts of another. Plaintiffs do not
dispute that the Young Hoods violated the disorderly persons statute;
therefore, neither the Store nor Mr. Security had a duty to protect timothy
Cowling from that criminal act. In addition, neither the Store nor Mr. Security
had notice or could have foreseen that the Young Hoods would begin their
roughhousing again once outside the store. Plaintiffs do not claim that the
Young Hoods‘ earlier disturbance was directed at Timothy Cowling. Moreover,
Plaintiffs do not suggest that the roughhousing never stopped and that
Timothy was sent into a situation that either the Store or Mr. Security knew
would result in imminent harm.
REQUEST FOR RELIEF
The Defendants, International Department Stores, Inc., and Sam
Security, respectfully ask this Court to grant their Motion for Summary
Disposition and dismiss Count II of Plaintiffs‘ Complaint.
Andrew Quinn (P22222)
Quinn and Associates, P.C.
217 S. Capitol Ave.
Lansing, MI 48933
Dated: June 23, 2002