Mason v. Royal Dequindre, Inc.

Weaver, J.

I concur with the result only in Mason, and dissent from the result in Goodman.

I disagree with the majority’s holding in Goodman that plaintiff’s injury was foreseeable because two previous shootings had recently occurred in the defendant bar’s parking lot. This is tantamount to saying that almost any injury is foreseeable to an invitee *406in high-crime, high-risk areas. Not only do I disagree with this Court’s apparent policy to impose a higher degree of liability on merchants and other property owners in high-crime areas, but I find the majority’s conclusion to be without a logical foundation.

The majority finds that the harm that occurred, the shooting, was foreseeable because two shootings had occurred in that location before the attack on plaintiff. Would the harm still have been foreseeable had the plaintiff been stabbed, or clubbed? The majority’s theory would make it foreseeable that any patron would be shot upon leaving the bar.

I also disagree with the majority’s underlying premise that “merchants can be hable in tort for failing to take reasonable measures to protect their invitees from harm caused by the criminal acts of third parties.” Ante, p 393.1 believe that owners and occupiers of land do not have a duty to protect invitees from the criminal acts of third parties, absent extraordinary circumstances. This Court has previously held that a merchant is not ordinarily required to protect customers from criminal acts of third parties. Scott v Harper Recreation, Inc, 444 Mich 441, 448; 506 NW2d 857 (1993); Williams v Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418 NW2d 381 (1988).

The majority misstates the general rule set forth by this Court in Williams. Williams discusses tort liability for nonfeasance, holding that “as a general rule, there is no duty that obligates one person to aid or protect another.” Id., p 499.1 Williams recognized an *407exception to the general rule, where there is a special relationship between a plaintiff and defendant, (i.e., employer-employee or innkeeper-guest). Id. Ultimately, Williams rejected the plaintiffs assertion that the defendant had a duty to provide police protection against third-party criminal acts.

However, the majority misstates the Williams general rule for nonfeasance. The majority purports to rely on Williams for the proposition that “The general rule is that a person does not have a duty to aid or protect another person endangered by a third person’s conduct. Williams, supra at 498-499.” Ante, p 397 (emphasis added). By adding six words to the general rule for nonfeasance, the majority incorrectly makes it seem that Williams created liability for failure to protect others from a third party’s actions when there is a special relationship between the plaintiff and defendant. This is ironic in light of Williams’ finding that merchants do not have a duty to provide police protection against third-party criminal acts and this Court’s holding in Scott, supra, p 448, that a merchant is not ordinarily required to protect customers from criminal acts of third parties.

The majority should acknowledge that the step it takes today is a new one and not, in effect, pretend that it is merely applying established precedent. I would hold that in both cases, the defendants were not required to protect the plaintiffs from the criminal acts of third parties.

Williams said that “In determining standards of conduct in the area of negligence, the courts have made a distinction between misfeasance, or active misconduct causing personal injury, and nonfeasance, which is passive inaction or the failure to actively protect others from harm. The com*407mon law has been slow in recognizing liability for nonfeasance because the courts are reluctant to force persons to help one another and because such conduct does not create a new risk of harm to a potential plaintiff. Thus, as a general rule, there is no duty that obligates one person to aid or protect another.” Id., pp 498-499.