Order Michigan Supreme Court
Lansing, Michigan
December 8, 2006 Clifford W. Taylor,
Chief Justice
131685 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
STEVEN PURDY, Maura D. Corrigan
Plaintiff-Appellee, Robert P. Young, Jr.
Stephen J. Markman,
Justices
v SC: 131685
COA: 256730
Wayne CC: 03-306683-NO
CHRISTOPHER JOHN BERNAICHE,
Defendant,
and
BABAR & ABRAHAM, INC., a/k/a
DRINKS SALOON
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the June 13, 2006
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should now be reviewed by this Court.
MARKMAN, J., concurs and states as follows:
Christopher Bernaiche, a patron at defendant bar, verbally confronted another
patron at the bar, and the bar’s employees forcefully evicted him. Some witnesses
testified that Bernaiche threatened to return and kill one or more of the other persons at
the bar, while others testified that they did not hear these threats. As Bernaiche was
ejected, the manager of the bar called the police and requested that they respond. Several
moments later, the manager called the police again. The parties dispute what the
manager told the police during the second call. According to the police dispatch log, the
manager stated that the police did not need to respond. However, the manager contends
that he continued to request a police response. In the end, the police did not respond to
the calls, and Bernaiche returned to the bar approximately 45 minutes after being ejected
and shot five people, including plaintiff. Plaintiff filed suit against Bernaiche and
defendant bar. The trial court denied summary disposition to defendant bar, and the
Court of Appeals affirmed.
2
This Court has established the parameters of a merchant’s duty to respond to
criminal activity. In MacDonald v PKT, Inc, 464 Mich 322 (2001), this Court stated that
“a merchant has no obligation to anticipate the criminal acts of third parties.” Id. at 339.
A merchant can assume that patrons will obey the criminal law. . . .
This assumption should continue until a specific situation occurs on the
premises that would cause a reasonable person to recognize a risk of
imminent harm to an identifiable invitee. It is only a present situation on
the premises, not any past incidents, that creates a duty to respond. [Id. at
335.]
Once a duty arises, “fulfilling the duty to respond requires only that a merchant make
reasonable efforts to contact the police.” Id. at 336. MacDonald did not impose a higher
duty on merchants because to do so “would essentially result in the duty to provide police
protection . . . .” Id. at 337. Nor are merchants “effectively vicariously liable for the
criminal acts of third parties.” Id. at 335. To impose such obligations not only lacks any
basis in the law, it would also have a destructive effect on small businesses in high-crime
areas of the state. Id. at 341, 344-345.
The witnesses provided varying testimony regarding whether Bernaiche threatened
to return to the bar and kill patrons. Because of this differing testimony, it is uncertain
whether a “present situation on the premises” can fairly be said to have existed, and
consequently whether defendant bar had a duty to respond and what precisely that duty
entailed. If the bar, in fact, had such a duty, the parties dispute whether the bar’s
manager satisfied that duty by his subsequent actions. Resolving what the manager told
the police, and why he told them what he did, will assist in determining whether
defendant bar made “reasonable efforts to contact the police,” in a context in which the
manager was “situated in roughly the same position [as his patrons] in terms of . . .
vulnerability to the violent criminal predator.” Id. at 337 n 12 (emphasis omitted).
Because potentially dispositive facts are in dispute, summary disposition for defendant
bar under MCR 2.116(C)(10) is inappropriate at this time. On remand, the trial court
should bear in mind that, under the law of our state, defendant bar has a duty to respond
to criminal activity only if a “present situation on the premises” can be said to exist, and
that any duty to respond is limited to making “reasonable efforts to contact the police.”
Imposing a higher duty upon merchants would be a step toward requiring them to provide
police protection for patrons, a duty that this Court squarely rejected in MacDonald.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 8, 2006 _________________________________________
d1205 Clerk