1 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 OPPOSING DEFENDANTS’ MOTION FOR SUMMARY DISPOSITION1 COUNTERSTATEMENT OF FACTS On April 6, 2002, Defendant, Sam Security, ejected eight-year-old Timothy Cowling from the International Department Store (the Store). (Deposition of Sam Security at 12:2-9, attached as Exhibit A.) Not only did Security eject an eight-year-old boy from the Store, but he also ejected six or seven significantly older boys, members of the Young Hoods gang, into the 1This 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. 2 parking lot along with him. (Id.) And even though Timothy looked scared, Security did not stay outside to make sure that Timothy wasn’t in danger. (Id. at 12:10-15.) The incident that culminated in Timothy’s injuries started in the electronics department of the International Department Store. Timothy was quietly playing video games while his mother shopped. (Deposition of Timothy Cowling at 7:1-3, attached as Exhibit B.) During one of those games, the Young Hoods entered the electronics area and started creating a disturbance. (Id. at 7:14-23.) The youths scared Timothy, so he just tried to ignore them and kept playing his game. (Id. at 7:21-23.) When Sam Security, a 5’10”, 200-pound, uniformed seven-year veteran of the Store’s security force, approached Timothy and told Timothy he had to go with him, Timothy obeyed. (Security Dep at 6:20-25, 4:24-5:1; Timothy Cowling Dep at 8:1-3.) Security took all of the youths, including young Timothy, to the security office, accused Timothy of stealing a video tape, patted Timothy down, made Timothy lift up his shirt, and kept him in the security office for about 20 minutes. (Timothy Cowling Dep at 8:9-18.) Timothy was scared of the gang members and of Sam Security and tried to hide in a corner of the office. (Id. at 9:6-9.) The Defendants have moved for summary disposition claiming that they owed no duty to little Timothy Cowling to protect him from dangers outside of the store or from the criminal acts of others. Plaintiffs oppose this motion because the Store’s duty to Timothy did not end when Security ejected him 3 from the store’s building. Moreover, the Store and Security should have foreseen the danger posed to an eight year old by tossing him out of a store and onto the sidewalk adjoining the mall’s streets and parking lot. ARGUMENT I. Standard of Review For the most part, Plaintiffs agree with Defendants’ statement of the standard of review. But the Defendants’ statement did not go far enough. A motion under MCR 2.116(C)(10) “should be granted only when it is impossible for the claim to be supported at trial because of a deficiency that cannot be overcome.” Warren’s Station, Inc v City of Bronson, 241 Mich App 384, 388; 615 NW2d 769 (2000) (citing Holland v Liedel, 197 Mich App 60, 64; 494 NW2d 772 (1992)). Defendants identify the “deficiency” here as no duty owed to Timothy Cowling. Defendants err. As will be shown, Defendants owed a duty to Timothy to protect him from foreseeable dangers and dangers they created. Summary disposition is not appropriate here, and the Defendants’ motion should be denied. II. International Department Stores, Inc., and Sam Security owed Timothy Cowling a duty to protect him from dangers they created and from the foreseeable criminal acts of the Young Hoods street gang members. Timothy Cowlings’s claim is not deficient; on April 6, 2002, Timothy was the Store’s invitee. And because Timothy was an invitee, the Store owed Timothy a duty to use reasonable care to avoid placing Timothy in danger. But as Sam Security in effect admits, the Store ignored this duty and subjected 4 young Timothy to an unreasonable risk of harm by placing Timothy into a dangerous situation. Sam Security tossed Timothy out of the store along with six or seven older street-gang members and did not stay outside to ensure that Timothy would not be harmed. This Court should deny the Defendants’ Motion for Summary Disposition. Under Michigan law one generally does not have a duty to aid or protect another from danger. See DeMare v Woodbridge, 182 Mich App 356, 358; 451 NW2d 871 (1990). And when the premises owner does have a duty to protect its invitees, that duty may end at the owner’s property line. Locklear v Stinson, 161 Mich App 713, 717-718; 411 NW2d 834 (1987). In addition, Michigan law does not generally burden an individual or entity with a duty to protect another from a third person’s criminal conduct. Mason v Royal Dequindre, Inc, 455 Mich 391, 397; 566 NW2d 199 (1997) (citing Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 498-499; 418 NW2d 381 (1988)). But all of these general rules have exceptions, and it is those exceptions that prescribe the scope of the duty the Store and Sam Security owed to Timothy Cowling. A. The Store and Sam Security’s duty to protect Timothy Cowling did not end when Sam Security ejected Timothy from the Store. The Defendants claim that their duties to Timothy Cowling ended once Timothy was no longer inside the Store. Defendants err. Defendants fail to recognize that, once they put Timothy in danger by ejecting him from the store, their duties to him continued. Because their duties continued, this Court should deny their motion for summary disposition. 5 Michigan caselaw establishes that an invitor’s duty does not always end once the invitee is no longer on the premises. Schneider v Nectarine Ballroom, Inc, (On Remand), 204 Mich App 1, 6-7; 514 NW2d 486 (1994). In Schneider, three men attacked the plaintiff in the defendant’s tavern. Id. at 3. After ejecting plaintiff’s attackers, the defendant’s employees physically ejected the plaintiff. Id. The same men who had attacked the plaintiff inside the tavern now attacked him outside. Id. The plaintiff sued the tavern owner claiming that the owner had breached its duty by negligently placing him into an area of danger. Id. The defendant moved for summary disposition claiming, like the Defendants in this case claim, that its duty to the plaintiff ended once the plaintiff left the tavern. The trial court granted the defendant’s motion. The court of appeals reversed. It held that the trial court erroneously focused on the site of the injury (the sidewalk outside the tavern) when it determined that the tavern owed its invitee no duty. Id. at 4. Plaintiff’s complaint clearly alleges [that] defendant, having been warned of the danger posed by his assailants, not only failed to take suitable measures to protect him, but in fact increased the risk of harm by actively ejecting him into the danger. Plaintiff’s complaint therefore appears to set forth an unassailable duty and an alleged breach thereof by defendant. [Id. at 5.] Like the tavern owner in Schneider, who knew about the dangers posed by the men outside, the Store and Sam Security knew about the Young Hoods’ previous gang activities and therefore knew about the danger they posed to Timothy. Sam Security understood that the Young Hoods were a Lansing street gang. (Security Dep at 9:9-11.) The gang members knew that Security would not “put up with any of their gang shenanigans.” (Id. at 13:21-22.) 6 Nevertheless, Security ejected Timothy and the gang members into the dangers of the parking lot and into the dangers the gang members posed. Defendants rely on Locklear v Stinson, 161 Mich App 713; 411 NW2d 834 (1984), to claim that it owed no duty to Timothy once Timothy left the store. But the court in Schneider clarified the reach of that rule. It rejected the notion that Locklear may be used as a shield in every case in which the injury occurs outside the premises. Schneider, supra at 6. Given the fact that the injury sustained by the plaintiff in Locklear was not only inflicted off the defendant’s bar premises, but several blocks from the premises under circumstances clearly unforeseeable to the defendant bar, we do not disagree with the decision reached by the Locklear panel. However . . . to whatever extent the opinion intimates liability may not attach under “any” circumstances where the injury occurs off the premises, we disagree and decline to follow it. Unlike the situation in Locklear . . . the injuries sustained [by the plaintiff] should have been reasonably foreseeable to the defendant and the situation could have been easily avoided without difficulty. [Schneider, supra at 6-7.] Defendants’ reliance on Locklear is misplaced. Defendants owed Timothy a duty not to put him in harm’s way. They ignored that when they put Timothy into the busy parking lot with known gang members. Their motion for summary disposition of Count II of Plaintiffs’ Complaint should be denied. B. The Store and Sam Security owed Timothy Cowling a duty to protect him from the Young Hoods because it is foreseeable that an eight-year-old child may be harmed if turned out into the streets in the company of a street gang. While as a general rule the invitor does not owe its invitees a duty to protect them from another’s criminal acts, two exceptions to this rule apply here. First, where the invitee has allowed the invitor to control and protect him 7 or her, the invitor owes a duty to do so. Second, the invitor knows that another’s conduct places the invitee in danger, the invitor has a duty to protect the invitee. Here, the Store and Sam Security controlled Timothy’s freedom to leave or enter the store when Sam Security took Timothy to the security office and later ejected Timothy from the store. Security therefore owed Timothy a duty to protect him from an unreasonable risk of harm. In addition, and as mentioned earlier, Security knew about the Young Hoods’ propensity to roughhouse and cause disturbances; therefore, it was foreseeable to the Store and to Sam Security that a young boy could be injured if left alone with the Young Hoods. Sam Security and the Store owed Timothy a duty to protect him from this foreseeable risk. Accordingly, the Defendants are not entitled to summary disposition of Count II of the Plaintiffs’ Complaint. The invitor’s legal obligation to act to protect its invitees is sometimes based on control. See Dykema v Gus Macker Enterprises, Inc, 196 Mich App 6, 8; 492 NW2d 472 (1992). The duty to protect is imposed upon the person in control because he is in the best position to provide a place of safety. Thus, the determination whether a duty-imposing special relationship exists in a particular case involves the determination whether the plaintiff entrusted himself to the control and protection of the defendant, with a consequent loss of control to protect himself. [Id. at 9.] In this case, Timothy Cowling was an invitee at the International Department Store. He most certainly was not the person who could best control events inside the store. Indeed, Timothy gave up control and the ability to protect himself when Sam Security confined him and then physically 8 removed him from the Store. (Security Dep at 12:2-9.) Furthermore, Sam Security knew what the Young Hoods were capable of. (Id. at 9:9-11; 13:21-22.) He and the Store should have protected Timothy from the Young Hoods. The duty to the invitee also arises if the invitor can foresee an unreasonable risk of harm to its invitee. Jackson v White Castle System, Inc, 205 Mich App 137, 142; 517 NW2d 286 (1994), Roberts v Pinkins, 171 Mich App 648; 430 NW2d 808 (1988) (“Other factors which may give rise to a duty include the foreseeability of the [harm] . . . .”). In Jackson, for example, the court held that because the plaintiff’s assailant had earlier caused a disturbance in the defendant’s restaurant just minutes before he injured the plaintiff, the defendant was on notice of the possible danger posed to its invitees. Jackson, supra at 141. Thus, even though the assailant suddenly came back into the building, his assaulting the plaintiff was not a random, unforeseeable act of violence. Id. “[T]he plaintiff stated a claim upon which relief could be granted in alleging that the defendant failed to control or eject the unruly patrons and failed to notify the police when it knew or should have known that its patrons were placed in peril.” Id. at 142. Even though the invitee in Jackson was injured as a result of another’s criminal act, the court recognized that the invitor had a duty to protect the invitee. Like the invitor in Jackson, the invitor in this case, the International Department Store, knew or should have known that Timothy would be in danger alone outside with the members of the Young Hoods. Timothy’s injury was not the result of a random, unforeseeable act because the gang’s unruly 9 actions inside the store should have alerted Sam Security of the possible danger to Timothy if left alone with the gang members. Whether based on Timothy’s inability to protect himself or the foreseeability of injury to an eight-year-old boy if left along with a group of street thugs, International Department Stores, Inc., and Sam Security owed Timothy a duty to protect him from unreasonable risks of harm. CONCLUSION Timothy Cowling’s claim against Sam Security and International Department Stores, Inc., is not deficient. Timothy has stated a claim and has evidence to support his claims. Sam Security and the Store owed Timothy a duty to protect him from unreasonable risks of harm. Sam Security created the risks when he ejected Timothy from the store together with the members of the Young Hoods. Timothy should have his opportunity to prove the breach of that duty at trial. REQUEST FOR RELIEF For the reasons stated in this brief, Timothy Cowling respectfully asks this Court to deny the Defendants’ Motion for Summary Disposition. Respectfully submitted: __________________________________ Evelyn C. Tombers (P44444) Attorney for the Plaintiffs Dated: July 14, 2003