Docstoc

brief in support of motion for summary disposition

Document Sample
brief in support of motion for summary disposition Powered By Docstoc
					                               STATE OF MICHIGAN
                      IN THE EATON COUNTY CIRCUIT COURT

Sandra Cowling, as next friend of
Timothy Cowling, a minor, and
Sandra Cowling,

                                    Plaintiffs,

v.

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
__________________________________________________________________________/

                      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
edited.
                                               1
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.)


                                        2
      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.

                                  ARGUMENT

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
      2.116(C)(10), (G)(4).

            ―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).‖
                                         3
      [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
      fact. Id.

Sprague v Farmer‘s Ins Exch, 251 Mich App 260, 264-265; 650 NW2d 374, 376
(2002).


      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
      NW2d 308.

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).




                                         4
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

oncoming car.

      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.‖

                                        5
Swartz v Huffmaster Alarm Systems, Inc, 145 Mich App 431, 434; 377 NW2d

393 (1985).

      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.
                                        6
      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


                                        7
(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
                                       8
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.
                                        9
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

Cowling.

      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.
                                      10
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


                                        11
protect him from the criminal act of a third person. Summary disposition is

appropriate, and this Court should grant it.

                                  CONCLUSION

      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.
                                        12
                            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.



                                            Respectfully submitted,




                                            _________________________________
                                            Andrew Quinn (P22222)
                                            Quinn and Associates, P.C.
                                            217 S. Capitol Ave.
                                            Lansing, MI 48933
                                            (517) 555-1212

Dated:      June 23, 2002




                                       13

				
DOCUMENT INFO
Description: sample legal brief or memorandum of law in support of the motion for summary disposition which has the factual and legal arguments for why the moving party should win.