(dissenting). I would deny leave to
appeal.__
*454I
Harper Recreation advertised "Free Ample Lighted Security Parking.”1 The majority argumentatively construes this language2 stating:
—that this does not mean that Harper Recreation promised to "provide a haven guaranteed to be completely free of all criminal activity.”3 (Emphasis added.)
—Harper Recreation "did not advertise that it would 'make the parking lot safe’ or provide a 'lot free of criminal activity.’ ”4 (Emphasis added.)
—Harper Recreation "never claimed the ability or the intention to create an environment that was guaranteed to be free of crime.”5 (Emphasis added.)
*455—"[N]either this defendant’s advertising nor the measures it put in place constituted a guarantee of the plaintiff’s personal safety”6 (Emphasis added.)
—Harper Recreation "did not advertise a crime-free haven from ordinary life . . . .”7 (Emphasis added.)
Scott did not claim, however, that Harper Recreation promised him the equivalent of secret service protection. He claimed, rather, that Harper Recreation failed "to provide adequate security to make the parking lot safe” and to "implement adequate security procedures to keep the lot free of criminal activity . . . .” (Emphasis added.)
ii
To the extent the allegations in Scott’s complaint overstate an appropriate and fair construction of what would constitute "Free Ample Lighted Security Parking,” Scott is entitled to an opportunity on remand from the Court of Appeals or this Court to file an amended complaint restating his claim so that the complaint alleges, e.g., that Harper Recreation failed "to provide adequate security to make the parking lot [reasonably] safe” and to "implement adequate security procedures to keep the lot [reasonably] free of criminal activity.”
It appears that Scott, in his amended complaint filed before summary disposition was granted, alleged an express undertaking to exercise reasonable care, and that the majority’s characterization of his complaint — as alleging a promise to "provide a haven guaranteed to be completely free of all *456criminal activity” — is inaccurate.8 (Emphasis added.)
hi
The majority reads Rhodes v United Jewish Charities of Detroit, 184 Mich App 740; 459 NW2d 44 (1990), as stating "that a party voluntarily undertaking to provide protection must do so in a nonnegligent manner.”9 That statement finds sup*457port in the Restatement:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.[10] [Emphasis added.]
I find nothing in Rhodes — which speaks in terms of providing protection in a "nonnegligent manner” — that justifies the following statement in the majority opinion:
To the extent that Rhodes implies that an agreement to provide security is an actionable warranty that the guarded area will be safe from all criminal activity, it is inconsistent with Michigan law.[11] [Emphasis added.]
IV
Harper Recreation did not contend, either formally, in its motion papers, or informally, in its brief, that there was an absence of a genuine issue of material fact on the factual issue whether it had failed to provide security personnel.
Harper Recreation did not in the trial court or in the Court of Appeals contend that Scott’s deposition testimony established "that a security guard *458was present at the lot when he arrived and was there to assist him after he was shot.”12
Because there has been no trial, and a motion under subrule (C)(10) was not properly filed,13 the majority errs in making the following findings of fact:
—"the defendant put in place each promised security measure”;14
—"[t]he defendant provided all that it advertised.”15
The majority also errs in stating ex cathedra that public policy requires that it pronounce a crimped and stingy construction of "Free Ample Lighted Security Parking.”16
v
The majority states:
Suit may not be maintained on the theory that the safety measures are less effective than they could or should have been.16
*459Reading the foregoing text and footnote together, it appears that the majority has made a factual determination, even though there has been no trial, and a motion under subrule (0(10) was not properly filed.18 In recognition that a motion under subrule (0(10) was not properly filed, the majority should not decide "in light of the deposition testimony of the plaintiff and others” "the specific allegation that the defendant failed to provide security personnel,”19 and should not preclude Scott from establishing at trial that Harper Recreation did not provide "safety measures” it agreed to provide.
VI
This Court cannot properly rule, as a matter of law, that Harper Recreation provided security personnel simply because a security guard was present at the lot when Scott arrived and may have been there to "assist” him after he was shot, if the security guard was not, in fact, on duty in the interim during which Scott made his way from the building to his automobile and was shot. That is not to say that the security guard had, as a matter of law, to be on duty every second. It is to say, however, that the whereabouts of the security guard during the interim — and whether, in the words of the majority, "an important safety measure [was] specifically promised and [was] entirely absent”20 — are factual questions that cannot properly be resolved by this Court as a matter of law without any focus on them at the trial level._
*460VII
Today’s decision is violative of the procedures established in the court rules requiring that a party filing a motion under subrule (C)(10)
—assert that there is "no genuine issue as to any material fact” — Harper Recreation did not so assert;
—"specifically identify the issues as to which the moving party believes there is no genuine issue” (subrule [G][4]) — Harper Recreation did not so specifically identify an issue;
—support the motion with "affidavits, depositions, admissions, [or] other documentary evidence” (subrule [G][5]> — -Harper Recreation did not so support its motion; all it did was state that it’s motion was based on subrule (0(10) as well as (0(8) and nothing more.
Today’s decision is not only violative of the procedures established in the court rules. The decision deprives Scott of an opportunity to respond to the argument, put forth for the first time when this per curiam opinion was circulated, that the admission on deposition that a security guard was present at the lot when Scott arrived and was there to assist him after he was shot, bars, as a matter of law, any factual response through the testimony of any witness or witnesses that might tend to establish that the security guard had been absent for a considerable period of time before the assault and was, in reality, "entirely absent.” Ante, p 452, n 16.
Footnote 9 of the majority opinion states: "there is no testimony in the record that the guard was absent, improperly engaged, or otherwise derelict in his duties.” A different question would be presented if Harper Recreation had "specifically” identified, as subrule (0(10) requires, as an issue *461about which it believed there was no genuine issue, the issue whether the security guard "was absent, improperly engaged, or otherwise derelict in his duties.” Because Harper Recreation did not so specifically identify such an issue, Scott cannot be faulted, and Harper Recreation cannot properly prevail, because there is "no testimony in the record” in that regard.
VIII
Peremptory disposition, without plenary consideration, full briefing, oral argument, and an opportunity for the profession to file briefs as amici curiae, should be reserved for cases in which the law is settled and factual assessment is not required.21 In the instant case, as indicated in the *462majority opinion, factual and legal assessment is required. Peremptory disposition is not appropriate.
Leave to appeal should be denied.
The defendant, Harper Recreation, Inc., doing business as Club UBQ, filed a motion for summary disposition under MCR 2.116(C)(8) and (10).
A motion under subrule (0(10) asserts that there is "no genuine issue as to any material fact.” Such a motion "must specifically identify the issues as to which the moving party believes there is no genuine issue.” "Affidavits, depositions, admissions, or other documentary evidence in support of the grounds asserted” are "required” when judgment is sought on the basis of subrule (C)(10). MCR 2.116(G)(3) and (4).
Although subrule (C)(10) was mentioned in the motion for summary disposition, the motion did not assert the absence of a "genuine issue as to any material fact.” Nor did the motion "specifically identify” any issue about which it was claimed there was no genuine issue. Nor was the motion supported by affidavits, depositions, admissions, or other documentary evidence.
The majority’s decision is contrary to the following rule of law:
Where a contract is to be construed by its terms alone, it is the duty of the court to interpret it, but where its meaning is obscure, and its construction depends upon other and extrinsic facts in connection with what is written, the question of interpretation must be submitted to the jury. [75A Am Jur 2d, Trial, § 802, pp 407-408.]
See People v Austin, 301 Mich 456; 3 NW2d 841 (1942).
Ante, p 449, n 8.
Ante, p 450.
Id.
Ante, pp 450-451.
Ante, p 453.
The complaint alleged:
19. That by virtue of the Defendant’s undertaking to provide a "secure” parking lot, the Defendant assumed a duty to its patrons to exercise reasonable care to provide same.
The syllabus prepared by the Reporter of Opinions for Rhodes reads as follows:
Janice Rhodes brought an action in Wayne Circuit Court against United Jewish Charities of Detroit (ujc), Jewish Vocational Services and Community Workshop (jvs), Guardian Guard Services, James Crawford and Anthony King. Plaintiff alleged that she was assaulted by King in a fenced and guarded parking lot owned by ujc adjacent to a building in which ujc leased space to jvs and plaintiff’s employer. Plaintiff further alleged that, under the terms of the lease agreement between ujc and jvs, jvs was obligated to provide security on the lot, and that jvs contracted with Guardian for security services. The court, Thomas J. Foley, J., granted summary disposition against plaintiff on her claims of negligence by ujc, jvs and Guardian. The court also denied plaintiff leave to amend her complaint to allege that she was a third-party beneficiary of the contract between ujc and jvs. Plaintiff appealed.
The Court of Appeals held:
1. When a person voluntarily assumes the performance of a duty, that person is required to perform it carefully, not omitting to do what an ordinarily prudent person would do in accomplishing the task. Here, when ujc and jvs voluntarily assumed the duty of providing protection in the form of guards from Guardian, it became incumbent upon them to provide that protection in a manner that was not negligent. Because the question of negligence was properly one for the jury, the trial court erred in granting summary disposition.
2. Because it can properly be argued that plaintiff was a third-party beneficiary of the contract between ujc and jvs, plaintiff shall, on remand, be granted leave to amend her complaint.
Reversed and remanded.
Restatement Torts, 2d, § 323, p 135.
Ante, p 452.
. . . We offer no view regarding other factual situations that might arise, such as where an important safety measure is specifically promised and is entirely absent, and injury is proximately caused thereby. However, we emphasize the core holding of Williams [v Cunningham Drug Stores, 429 Mich 495; 418 NW2d 381 (1988)]: Merchants are not responsible for maintaining public order or preventing crime![17]
Ante, p 449.
See n 1.
Ante, p 450.
Ante, p 453.
The majority states:
It did not advertise a crime-free haven from ordinary life, and public policy would render unenforceable any such promise unless it were both reasonable and entirely explicit. [Ante, p 453.]
Ante, p 452.
See n 1.
Ante, p 453.
Ante, p 452, n 16.
People v Wright, 439 Mich 914, 914-915 (1992) (Levin, J., dissenting); Roek v Chippewa Valley Bd of Ed, 430 Mich 314, 322; 422 NW2d 680 (1988) (Levin, J., separate opinion); Grames v Amerisure Ins Co, 434 Mich 867, 868-875 (1990) (Levin, J., dissenting); People v Little, 434 Mich 752, 769-770; 456 NW2d 237 (1990) (Levin, J., dissenting); People v Wrenn, 434 Mich 885, 885-886 (1990) (Levin, J., dissenting); Harkins v Northwest Activity Center, Inc, 434 Mich 896, 899 (1990) (Levin, J., dissenting); Dep’t of Social Services v American Commercial Liability Ins Co, 435 Mich 508, 515; 460 NW2d 194 (1990) (Levin, J., separate opinion); Yahr v Garcia, 436 Mich 872 (1990) (Levin, J., dissenting); Universal Underwriters Ins Co v Vallejo, 436 Mich 873, 873-874 (1990) (Levin, J., dissenting); People v Stephens, 437 Mich 903, 903-910 (1991) (Levin, J., dissenting); People v Berkey, 437 Mich 40, 54; 467 NW2d 6 (1991) (Levin, J., dissenting); Turner v Washtenaw Co Rd Comm, 437 Mich 35, 38-39; 467 NW2d 4 (1991) (Levin, J., separate opinion); Lepior v Venice Twp, 437 Mich 955, 956-966 (1991) (Levin, J., dissenting); Rochester Hills v Southeastern Oakland Co Resource Recovery Authority, 440 Mich 852, 852-856 (1992) (Levin, J., dissenting); In re Reinstatement of Eston (Grievance Administrator v Eaton), 440 Mich 1205, 1205-1207 (1992) (Levin, J., dissenting); In re Reinstatement of Callanan, 440 Mich 1207, 1207-1209 (1992) (Levin, J., dissenting); McFadden v Monroe Civil Service Comm, 440 Mich 890, 890-891 (1992) (Levin, J., dissenting); Holly Twp v Dep’t of Natural Resources (Holly Twp v Holly Disposal, Inc), 440 Mich 891, 891-893 (1992) (Levin, J., dissenting); Marzonie v ACIA, 441 Mich 522, 535-539; 495 NW2d 788 (1992) (Levin, J., dissenting); People v Waleed, 441 Mich 902, 902-903 (1992) (Levin, J., dissenting); People v Hardison, 441 Mich 913, 914-916 (1993) (Levin, J., dissenting); People v Justice, 441 Mich 916, 917-919 (1993) (Levin, J., dissenting).
*462See Schweiker v Hansen, 450 US 785, 791; 101 S Ct 1468; 67 L Ed 2d 685 (1981) (Marshall, J., dissenting) ("A summary reversal is a rare disposition, usually reserved by this Court for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error”); Leis v Flynt, 439 US 438, 457-458; 99 S Ct 698; 58 L Ed 2d 717 (1979) (Stevens, J., dissenting) ("Summary reversal 'should be reserved for palpably clear cases of . . . error.’ Eaton v Tulsa, 415 US 697, 707 [94 S Ct 1228; 39 L Ed 2d 693 (1974)] [Rehnquist, J., dissenting]”).