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 

Robert P. Young, Jr. Plaintiff-Appellee, 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. 

d1205 

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 

Clerk