Michigan Supreme Court 

# Order

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 cons idered, and it is DENIED, because we are not persuaded that the questions presented s hould now be reviewed by this Court.

M ARKMAN , J., concurs and states as follows:

Christopher Bernaiche, a patron at defe ndant bar, verbally confronted another patron at the bar, and the bar’s employees forcefully evic ted him. Some witnesses
testified that Bernaiche threatened to return and kill one or more of the other persons at the bar, while others testifie d that they did not hear thes e threats. As Bernaiche was ejected, the manager of the bar called the poli ce and requested that th ey respond. Several moments later, the manager called the poli ce again. The parties dispute what the manager told the police during the second call. According to the poli ce dispatch log, the manager stated that the police did not need to respond. Ho wever, the manager contends that he continued to request a police response. In the end, the police did not respond to the calls, and Bernaiche returne d 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 su mmary disposition to defendant bar, and the Court of Appeals affirmed._______________________________________ __ 2

This Court has established the paramet ers 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 un til a specific situa tion occurs on the premises that would cause a reasona ble person to recognize a risk of
imminent harm to an iden tifiable 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 re spond 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 oblig ations not only lacks any basis in the law, it would also have a dest ructive effect on small businesses in high-crime
areas of the state. Id . at 341, 344-345.

The witnesses provided varying testimony regarding whether B ernaiche 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 d efendant bar had a duty to respond and what precisely that duty entailed. If the bar, in fact, had such a duty, the parties dis pute whether the bar’s manager satisfied that duty by his subsequent actions. Resolving wh at 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 c ontext in which the manager was “situated in roughly the same position [as his patrons] in terms of . .

. vulnerability to the violen t 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, defenda nt bar has a duty to respond to criminal activity only if a “p resent 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 th at this Court squarely rejected in MacDonald

.

d1205 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

December 8, 2006

Clerk