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Michigan Supreme Court

Lansing, Michigan 48909 

C hief Justice Justices

Maura D. Corrigan	 Michael F. Cavanagh

Elizabeth A. Weaver 

Marilyn Kelly

Clifford W. Taylor

Robert P. Young, Jr. Opinion Stephen J. Markman 

FILED JUNE 26, 2001
 

MOLLY MACDONALD,
 

Plaintiff-Appellee,
 

v	 No. 114039
 

PKT, INC, known as PINE KNOB MUSIC


THEATER, and ARENA ASSOCIATES,


jointly and severally,
 

Defendants-Appellants,
 

and
 

CAPITAL CITIES/ABC, INC,
 

Defendant.
 

STEPHEN L. LOWRY,
 

Plaintiff-Appellant,
 

v	 No. 115322
 

CELLAR DOOR PRODUCTIONS OF MICHIGAN,


INC, a Michigan corporation, and


ARENA ASSOCIATES INC, d/b/a PINE


KNOB MUSIC THEATER, jointly and


severally,
 

Defendants-Appellees.
 

BEFORE THE ENTIRE BENCH
 

YOUNG, J.
 

I. INTRODUCTION
 
 

In these consolidated premises liability cases,
 

plaintiffs seek to recover for injuries they suffered when
 

fellow concertgoers at the Pine Knob Music Theater (Pine
 

Knob), an outdoor amphitheater that offered seating on a
 

grass-covered hill, began pulling up and throwing pieces of
 

sod. We granted leave to address the duty of premises owners
 

concerning the criminal acts of third parties.
 

Under Mason v Royal Dequindre, Inc, 455 Mich 391; 566
 

NW2d 199 (1997), merchants have a duty to respond reasonably
 

to situations occurring on the premises that pose a risk of
 

imminent and foreseeable harm to identifiable invitees. We
 

hold today that the duty to respond is limited to reasonably
 

expediting the involvement of the police and that there is no
 

duty to otherwise anticipate and prevent the criminal acts of
 

third parties. Finally, consistent with Williams v Cunningham
 

Drug Stores, Inc, 429 Mich 495; 418 NW2d 381 (1988), and Scott
 

v Harper Recreation, Inc, 444 Mich 441; 506 NW2d 857 (1993),
 

we reaffirm that merchants are not required to provide
 

security personnel or otherwise resort to self help in order
 

to deter or quell such occurrences. 


II. FACTUAL AND PROCEDURAL BACKGROUND
 

A. MACDONALD
 

In MacDonald, plaintiff Molly MacDonald attended a
 

concert on May 4, 1995, at Pine Knob at which several bands
 

were performing. Pine Knob offers seating on a grass-covered
 

hill, as well as seating in a pavilion. Plaintiff received
 

the tickets to the concert as part of a promotional giveaway
 

by a local radio station sponsoring the concert. When
 

2
 
plaintiff arrived at Pine Knob, she and a friend found a spot
 

to sit on the hill. While a band called Bush was performing,
 

some patrons began pulling up sod and throwing it.
 

Before the concert, the event coordinator had asked the
 

bands to stop performing in the event that the audience
 

members began throwing sod, and announce that the sod throwing
 

must stop. There were also flyers posted in the dressing
 

rooms of the bands requesting the bands to make an
 

announcement to the audience to stop throwing sod. Pursuant
 

to that request, the band finished the song and stopped
 

performing, making an announcement that unless the sod
 

throwing stopped, the concert would not continue. The crowd
 

complied with the band’s request, and several individuals were
 

ejected from Pine Knob for throwing sod.
 

While the next band, the Ramones, was performing, the sod
 

throwing resumed. After that band refused to make an
 

announcement to stop throwing sod, the event coordinator
 

turned on the house lights. When the sod throwing continued,
 

the band made an additional announcement demanding that it
 

stop. Once again, several individuals who were involved in
 

throwing sod were ejected from the theater. During the second
 

incident of sod throwing, plaintiff fractured her ankle when
 

she fell while attempting to avoid being struck by a piece of
 

sod. Discovery materials indicated that there had been two
 

sod-throwing incidents at previous concerts at Pine Knob, one
 

incident in 1991, at a Lollapalooza concert, and another
 

3
 
 

incident in 1994, at a Metallica concert.1
 

Plaintiff filed a complaint against, among others, PKT,
 

Inc., also known as Pine Knob Music Theater and Arena
 

Associates.2 Plaintiff alleged that Pine Knob was negligent
 

in failing to provide proper security, failing to stop the
 

performance when it should have known that continuing the
 

performance would incite the crowd, failing to screen the
 

crowd to eliminate intoxicated individuals, and by selling
 

alcoholic beverages. Pine Knob moved for summary disposition,
 

arguing that it did not have a duty to protect plaintiff from
 

the criminal acts of third parties. Meanwhile, plaintiff
 

moved to amend her complaint to add certain theories including
 

design defect, nuisance, and third-party beneficiary claims
 

and to more specifically set forth her negligence claim.
 

The trial court granted summary disposition for Pine Knob
 

pursuant to MCR 2.116(C)(8) and (10), but the Court of Appeals
 

reversed.3 The Court of Appeals held that the trial court
 

erred in granting summary disposition in favor of Pine Knob
 

because there were fact questions for the jury regarding
 

whether the sod throwing incident created a foreseeable risk
 

of harm and whether the security measures taken by Pine Knob
 

1The 1994 sod-throwing incident resulted in the lawsuit


at issue in Lowry.
 

2Although not fully explained by the parties, apparently


Pine Knob Music Theater and Arena Associates is one entity.


Capital Cities/ABC, Inc., the owner of the radio station that


sponsored the concert, was dismissed as a party defendant from


the case early on and is not a party to this appeal. 


3

233 Mich App 395; 593 NW2d 176 (1999).
 

4 
were reasonable. The Court of Appeals reasoned that plaintiff
 

submitted evidence that there had been incidents of sod
 

throwing at previous concerts, that Pine Knob was aware of
 

those instances, and that it had formulated policies to deal
 

with sod throwing incidents before the concert. Regarding the
 

question whether security measures taken by Pine Knob were
 

reasonable, the Court of Appeals stated that plaintiff
 

presented evidence sufficient to survive summary disposition
 

by submitting the affidavit of an expert witness who stated
 

that Pine Knob was negligent by (1) failing to have adequately
 

trained security personnel properly positioned at the
 

concert,4 (2) failing to summon the police to eject or arrest
 

those throwing sod, (3) failing to have a clear, written
 

policy regarding the sod throwing, (4) allowing the concert to
 

continue after the first incident, and (5) serving alcohol.
 

Finally, the Court of Appeals held that the trial court
 

abused its discretion in denying plaintiff’s motion to amend
 

her complaint pursuant to MCR 2.116(I)(5). The Court of
 

Appeals stated that the proposed claims were legally
 

sufficient and were justified by the evidence. This Court
 

granted Pine Knob’s application for leave to appeal.5


 B. LOWRY
 

In Lowry, plaintiff and a friend attended a Suicidal
 

Tendencies/Danzig/Metallica concert at Pine Knob on June 22,
 

4

Approximately forty security officers and eleven
 

officers from the Oakland County Sheriff’s Department were


working at the concert.
 

5461 Mich 987 (2000). 

5 
1994. Plaintiff suffers from multiple sclerosis and uses the
 

aid of two canes or a wheelchair. Plaintiff was seated in the
 

handicapped section at Pine Knob, which is located at the rear
 

of the pavilion immediately adjacent to the grass seating.
 

During the performance of Danzig, patrons seated on the lawn
 

of Pine Knob began throwing sod. Plaintiff was allegedly
 

struck with sod on the head and shoulders. Within a few
 

minutes, the band stopped performing and an announcement was
 

made requiring individuals to stop or the concert would not
 

continue. Alcohol sales were cut off. Deposition testimony
 

indicated that the sod throwing stopped within ten to fifteen
 

minutes and numerous individuals were ejected from Pine Knob.6
 

Plaintiff brought a negligence action against Pine Knob,
 

as well as Cellar Door Productions of Michigan, Inc., the
 

producer of the concert, alleging that defendants failed to
 

protect plaintiff from the foreseeable dangers of sod throwing
 

by patrons. Plaintiff also alleged that defendants violated
 

his rights under the Michigan Handicapper’s Civil Rights Act
 

(MHCRA), (now: Persons With Disabilities Civil Rights Act),
 

MCL 37.1101 et seq., by failing to adequately accommodate his
 

disability.
 

Defendants moved for summary disposition under MCR
 

2.116(C)(8) and (10), arguing that they owed no duty to
 

protect plaintiff from the criminal acts of third parties, and
 

that plaintiff’s handicap was fully accommodated. With regard
 

6Approximately seventy crowd control personnel, as well


as officers from the Oakland County Sheriff’s Department, were


present at the concert. 


6
 
to plaintiff’s premises liability claim, the trial court
 

granted summary disposition for defendants on the ground that
 

the sod throwing was unforeseeable and that defendants took
 

reasonable measures to protect their patrons. The trial court
 

also granted summary disposition for defendants on plaintiff’s
 

handicapper discrimination claim, holding that defendants
 

provided plaintiff with full and equal utilization of the
 

facilities.
 

The Court of Appeals affirmed in an unpublished per
 

curiam decision.7 As an initial matter, the Court of Appeals
 

noted that both the parties and the trial court had failed to
 

recognize that because Cellar Door was not the owner of the
 

premises, it could not have been negligent under a premises
 

liability theory.8 By implication, the Court also held that
 

Cellar Door could not have violated plaintiff’s rights under
 

the MHCRA. With regard to Pine Knob, the Court of Appeals
 

held that it owed no duty to protect plaintiff because it was
 

unforeseeable as a matter of law that the crowd would throw
 

sod at plaintiff during the concert. In that respect, the
 

Court of Appeals found that the instant case was factually
 

distinguishable from MacDonald because (1) unlike MacDonald,
 

in the instant case there was no evidence whatsoever that
 

defendants had formulated a specific policy to deal with sod
 

throwing incidents, (2) the sod throwing incident in this case
 

7Issued June 8, 1999 (Docket No. 206875).
 

8Plaintiff does not challenge this aspect of the Court of


Appeals decision. Accordingly, we deem plaintiff to have


abandoned his claims against Cellar Door.
 

7
 
occurred before the incident in MacDonald, and (3) in
 

MacDonald, the plaintiff was injured during the second
 

occurrence of sod throwing during the same concert, whereas in
 

this case, there were no incidents of sod throwing during the
 

prior evening’s performance that involved the same bands. The
 

Court of Appeals also held that Pine Knob fully accommodated
 

plaintiff’s disability.
 

One panel member dissented in part, arguing that
 

“[a]lthough plaintiff did not present evidence regarding the
 

number of previous sod throwing incidents or the dates and
 

circumstances surrounding those previous occurrences,
 

plaintiff nonetheless established the existence of a genuine
 

issue of material fact with respect to whether the sod
 

throwing incident at issue in this case was foreseeable.” The
 

dissent further suggested that the reasonableness of Pine
 

Knob’s conduct with respect to protecting the patrons with
 

disabilities from injuries should have been submitted to a
 

jury.
 

This Court granted plaintiff’s application for leave to
 

appeal.9
 

III. STANDARD OF REVIEW
 

We review de novo a trial court’s decision to grant or
 

deny summary disposition. The Herald Co v Bay City, 463 Mich
 

111, 117; 614 NW2d 873 (2000). A motion for summary
 

disposition under MCR 2.116(C)(8) tests the legal sufficiency
 

of the complaint and allows consideration of only the
 

9461 Mich 987 (2000).
 

8 
pleadings. Wade v Dep’t of Corrections, 439 Mich 158, 162;
 

483 NW2d 26 (1992). The motion should be granted only when
 

the claim is so clearly unenforceable as a matter of law that
 

no factual development could possibly justify a right of
 

recovery. Id. at 163.
 

A motion for summary disposition pursuant to MCR 2.116
 

(C)(10) tests the factual support of a claim. Smith v Globe
 

Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999). The
 

motion should be granted if the evidence demonstrates that no
 

genuine issue of material fact exists, and that the moving
 

party is entitled to judgment as a matter of law. Id. at 454­

455, quoting Quinto v Cross & Peters Co, 451 Mich 358, 362­

363; 547 NW2d 314 (1996).
 

IV. THE DUTIES OF A MERCHANT
 

We recognized in Mason the general rule that merchants
 

"do not have a duty to protect their invitees from
 

unreasonable risks that are unforeseeable." Id. at 398.
 

Accordingly, we held that a duty arises only on behalf of
 

those invitees that are "‘readily identifiable as [being]
 

foreseeably endangered.’" Id., quoting Murdock v Higgins, 454
 

Mich 46, 58; 559 NW2d 639 (1997). We further held that the
 

measures taken must be reasonable. Mason at 405. In the
 

instant cases, we are called upon to further clarify the duty
 

that we articulated in Mason.
 

Mason and its companion case, Goodman v Fortner, both
 

involved altercations that began in bars. In Mason, one of
 

the plaintiff’s friends, Dan Kanka, was involved in an
 

altercation with another man, Thomas Geoffrey. The plaintiff
 

9
 
 

was in a different area of the bar when the fight began, and
 

only witnessed its conclusion. The bar’s bouncers immediately
 

ejected Geoffrey and, in an attempt to avoid more conflict,
 

instructed Kanka to remain until Geoffrey left the premises.
 

When the plaintiff left the bar some time later, Geoffrey
 

assaulted him in the parking lot, breaking his nose and jaw.
 

Id. at 393-394. We upheld the dismissal of the plaintiff’s
 

resulting premises liability claim on the ground that, because
 

the plaintiff was not near the area where the initial fight
 

occurred (and the defendant had no knowledge that the
 

plaintiff was associated with either Kanka or Geoffrey), the
 

defendant had no reason to believe that the plaintiff was in
 

danger. Even viewed in a light most favorable to the
 

plaintiff, we held that the facts did not support a finding
 

that the attack on the plaintiff was foreseeable. Id. at 404.
 

In Goodman, the plaintiff’s girlfriend, Theresa Woods,
 

was involved in a bar room scuffle with the plaintiff’s former
 

girlfriend and mother of his child, Joslynn Lewis. The fight
 

continued in the parking lot and then moved back inside the
 

bar, with two of Lewis’ relatives joining the fray. Despite
 

repeated requests that they call the police, the bar’s
 

bouncers refused, although they did remove Lewis and her group
 

from the bar. When the plaintiff and Woods attempted to leave
 

the bar, Lewis and her friends were waiting out in the parking
 

lot, yelling at the plaintiff and threatening to kill him.
 

There was evidence that the bouncers standing at the door
 

could undoubtedly hear the commotion. One of Lewis’ friends
 

eventually shot the plaintiff in the chest. Id. at 395-396.
 

10
 
We upheld a jury verdict in the plaintiff’s favor on the
 

ground that a reasonable jury could find that the harm to the
 

plaintiff was foreseeable. We also held that a reasonable
 

jury could find that the defendant did not take reasonable
 

steps to prevent the plaintiff’s injury. Id. at 404-405.
 

As we made clear in Williams and Scott, a merchant has no
 

obligation generally to anticipate and prevent criminal acts
 

against its invitees. Indeed, as the Court of Appeals panel
 

in Lowry correctly noted, we have never recognized as
 

"foreseeable" a criminal act that did not, as in Goodman,
 

arise from a situation occurring on the premises under
 

circumstances that would cause a person to recognize a risk of
 

imminent and foreseeable harm to an identifiable invitee.
 

Consequently, a merchant’s only duty is to respond reasonably
 

to such a situation. To hold otherwise would mean that
 

merchants have an obligation to provide what amounts to police
 

protection, a proposition that we soundly rejected in both
 

Williams and Scott.10 To the extent that, in Goodman, we
 

relied upon evidence of previous shootings at the bar in
 

assessing whether a reasonable jury could find that the
 

Goodman plaintiff’s injury was foreseeable, we now disavow
 

that analysis as being flatly inconsistent with Williams and
 

Scott.
 

10Mason cited § 344 of 2 Restatement of Torts, 2nd, and


comment f to § 344, which indicate that a merchant has a duty


to take precautions against the criminal conduct of third


persons that may be reasonably anticipated. We overrule that
 

portion of Mason as conflicting with Williams and Scott.
 

11
 
A premises owner’s duty is limited to responding
 

reasonably to situations occurring on the premises because, as
 

a matter of public policy, we should not expect invitors to
 

assume that others will disobey the law. A merchant can
 

assume that patrons will obey the criminal law. See People v
 

Stone, 463 Mich 558, 565; 621 NW2d 702 (2001), citing Prosser
 

& Keeton, Torts (5th ed) § 33, p 201; Robinson v Detroit, 462
 

Mich 439, 457; 613 NW2d 307 (2000); Buzckowski v McKay, 441
 

Mich 96, 108, n 16; 490 NW2d 330 (1992); Placek v Sterling
 

Hts, 405 Mich 638, 673, n 18; 275 NW2d 511 (1979). 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.
 

Subjecting a merchant to liability solely on the basis of
 

a foreseeability analysis is misbegotten. Because criminal
 

activity is irrational and unpredictable, it is in this sense
 

invariably foreseeable everywhere. However, even police, who
 

are specially trained and equipped to anticipate and deal with
 

crime, are unfortunately unable universally to prevent it.
 

This is a testament to the arbitrary nature of crime. Given
 

these realities, it is unjustifiable to make merchants, who
 

not only have much less experience than the police in dealing
 

with criminal activity but are also without a community
 

deputation to do so, effectively vicariously liable for the
 

criminal acts of third parties.
 

12
 
 

 

 

Having established that a merchant’s duty is to respond
 

reasonably to criminal acts occurring on the premises, the
 

next question is what is a reasonable response? Ordinarily,
 

this would be a question for the factfinder. However, in cases
 

in which overriding public policy concerns arise, this Court
 

may determine what constitutes reasonable care. See Williams,
 

supra at 501, citing Moning v Alfono, 400 Mich 425, 438; 254
 

NW2d 759 (1977). Because such overriding public policy
 

concerns exist in the instant cases, the question of
 

reasonable care is one that we will determine as a matter of
 

law. Williams, supra at 501. We now make clear that, as a
 

matter of law, fulfilling the duty to respond requires only
 

that a merchant make reasonable efforts to contact the police.
 

We believe this limitation is consistent with the public
 

policy concerns discussed in Williams. 


In Williams, supra, the plaintiff was shopping in the
 

defendant’s store when an armed robbery occurred. As the
 

plaintiff, a store patron, attempted to flee, the robber shot
 

him. The plaintiff sued the defendant store, alleging that it
 

breached its duty to exercise reasonable care in part by not
 

providing armed and visible security guards for the security
 

of the store’s patrons. Id. at 497. This Court held that a
 

merchant’s duty of reasonable care does not include providing
 

armed, visible security guards to deter criminal acts of third
 

parties. Id. at 501. We reasoned that such a duty is vested
 

in the government alone, and that to shift the burden to the
 

private sector "would amount to advocating that members of the
 

public resort to self-help. Such a proposition contravenes
 

13
 
 

public policy." Id. at 503-504. We further explained that
 

[t]o require defendant to provide armed, visible


security guards to protect invitees from criminal


acts in a place of business open to the general


public would require defendant to provide a safer


environment on its premises than its invitees would


encounter in the community at large. Defendant
 

simply does not have that degree of control and is


not an insurer of the safety of its invitees. [Id.
 at 502.]
 

The rationale of this Court in Williams for not requiring
 

merchants to provide security guards to protect invitees from
 

the criminal acts of third parties is the same rationale for
 

not imposing on merchants any greater obligation than to
 

reasonably expedite the involvement of the police. That is,
 

the duty to provide police protection is vested in the
 

government. Williams, supra at 501. To require a merchant to
 

do more than take reasonable efforts to expedite the
 

involvement of the police, would essentially result in the
 

duty to provide police protection, a concept that was rejected
 

in Williams.11 Merchants do not have effective control over
 

situations involving spontaneous and sudden incidents of
 

criminal activity. On the contrary, control is precisely what
 

has been lost in such a situation.12 Thus, to impose an
 

obligation on the merchant to do more than take reasonable
 

efforts to contact the police is at odds with the public
 

policy principles of Williams. 


11A merchant may voluntarily do more than reasonably


attempt to notify the police. However, we hold today, that a


merchant is under no legal obligation to do so.
 

12In most instances, other than merely being the owner of


the business being victimized, the merchant and invitee will


be situated in roughly the same position in terms of their


vulnerability to the violent criminal predator.
 

14
 
In Scott, supra at 452, we expanded on this theme by
 

holding that, even where a merchant voluntarily takes safety
 

precautions in an effort to prevent criminal activity, "[s]uit
 

may not be maintained on the theory that the safety measures
 

are less effective than they could or should have been."
 

Consequently, in any case in which a factfinder, be it the
 

trial court or a jury, will be assessing the reasonableness of
 

the measures taken by a merchant in responding to an
 

occurrence on the premises, a plaintiff may not present
 

evidence concerning the presence or absence of security
 

personnel, or the failure to otherwise resort to self-help, as
 

a basis for establishing a breach of the merchant’s duty. A
 

jury thus must be specifically instructed in accordance with
 

the principles of Williams and Scott as we have outlined them
 

here.
 

To summarize, under Mason, generally merchants "have a
 

duty to use reasonable care to protect their identifiable
 

invitees from the foreseeable criminal acts of third parties."
 

Id. at 405. The duty is triggered by specific acts occurring
 

on the premises that pose a risk of imminent and foreseeable
 

harm to an identifiable invitee. Whether an invitee is
 

readily identifiable as being foreseeably endangered is a
 

question for the factfinder if reasonable minds could differ
 

on this point. See id. at 404-405. While a merchant is
 

required to take reasonable measures in response to an ongoing
 

situation that is taking place on the premises, there is no
 

obligation to otherwise anticipate the criminal acts of third
 

parties. Consistent with Williams, a merchant is not
 

15
 
obligated to do anything more than reasonably expedite the
 

involvement of the police. We also reaffirm that a merchant
 

is not required to provide security guards or otherwise resort
 

to self help in order to deter or quell such occurrences.
 

Williams, supra. 


V. APPLICATION
 

A. MACDONALD
 

The Court of Appeals in MacDonald held that plaintiff
 

presented sufficient evidence to create a genuine issue of
 

material fact concerning whether the harm to her was
 

foreseeable. We agree that plaintiff created a jurysubmissible issue concerning whether she was readily
 

identifiable as being foreseeably endangered once the sod
 

throwing began. However, we reject the Court of Appeals
 

reliance on incidents previous to the day in question as a
 

basis for concluding that sod throwing was “foreseeable” in
 

this instance. The Mason duty, as clarified here, is not
 

based upon the general question whether a criminal act was
 

foreseeable, but, rather, once a disturbance occurs on the
 

premises, whether a reasonable person would recognize a risk
 

of imminent harm to an identifiable invitee. As stated, a
 

merchant has no obligation to anticipate the criminal acts of
 

third parties.
 

The Court of Appeals also held that a genuine issue of
 

material fact exists concerning whether Pine Knob took
 

reasonable measures in response to the sod throwing. We
 

disagree. Because Pine Knob already had the police present at
 

the concert, Pine Knob fully discharged its duty to respond.
 

16
 
Thus, we reverse the Court of Appeals decision denying Pine
 

Knob’s motion for summary disposition and reinstate the trial
 

court’s decision to grant summary disposition for Pine Knob
 

pursuant to MCR 2.116(C)(8) and (10). 


We also reverse the Court of Appeals decision that the
 

trial court abused its discretion in denying plaintiff’s
 

motion to amend her complaint to add certain theories
 

including design defect, nuisance, and third-party beneficiary
 

claims and to more specifically set forth her negligence
 

claim. We conclude that plaintiff’s amendment would have been
 

futile. 


B. LOWRY
 

In contrast with MacDonald, the Court of Appeals panel in
 

Lowry relied solely on the absence of evidence concerning
 

previous incidents of sod throwing to uphold the trial court’s
 

decision granting summary disposition for Pine Knob. This too
 

was error. Whether Pine Knob could have anticipated that sod
 

throwing would be a problem does not answer the legally
 

relevant question whether plaintiff Lowry was foreseeably
 

endangered once sod throwing began on the day of plaintiff’s
 

attendance. However, in accordance with this opinion, because
 

Pine Knob already had the police at the concert, we hold that
 

Pine Knob had no further obligation. Pine Knob discharged its
 

duty to respond by having police present once the sod throwing
 

began. Thus, we affirm the Court of Appeals affirmance of the
 

trial court’s decision to grant summary disposition in favor
 

of Pine Knob. We also affirm the Court of Appeals decision to
 

uphold summary disposition in Pine Knob’s favor on plaintiff’s
 

17
 
 

handicapper discrimination claim. We agree that Pine Knob
 

fully accommodated plaintiff’s disability.
 

VI. RESPONSE TO THE DISSENT
 

The dissent accuses us of “uproot[ing] the entire basis
 

for imposing a duty on merchants to protect their invitees
 

that we expressed in Mason . . . .” Slip op, pp 4-5. We
 

disagree. 


The principal difference between the dissent and the
 

majority lies in our respective attempts to reconcile our
 

several premises liability cases and the policies that
 

undergird them. The dissent seeks in effect to limit or
 

ignore the holdings of Williams and Scott. The majority
 

refuses to do so. 


In its effort to explain away the tort duty policy
 

choices this Court adopted in Williams and Scott, the dissent
 

reads into Mason rationales and holdings the dissent would
 

have liked Mason to have adopted but which that opinion
 

plainly did not embrace.
 

We believe that the actual policy rationales of Williams
 

and Scott must be reconciled with the merchant’s duty set
 

forth in Mason. In reconciling these cases, we seek to
 

establish a clear rule. We reject the premises liability rule
 

that the dissent proposes because (1) it provides little
 

guidance to any premises owner concerning its obligations
 

under law and (2) despite its claims to the contrary, the
 

dissent’s rule would unfairly expose merchants in high-crime
 

areas to excessive tort liability and increase the pressure on
 

18
 
commercial enterprises to remove themselves from our troubled
 

urban and high-crime communities. Mason undeniably cites
 

2 Restatement Torts, 2d, § 344, and comment f.13 However, in
 

quoting that section and comment of the restatement, the Mason
 

majority did not “recognize” the imposition of a duty on a
 

merchant to protect its invitees from criminal conduct of
 

third parties as being “contingent upon whether the character
 

of his business, or past experience . . . gives the merchant
 

knowledge or reason to know that those acts may occur again.”
 

Slip op, p 4. Other than in the text of the restatement, the
 

“character of the merchant’s business” is not even discussed
 

13The dissent cannot seriously suggest that the mere


quotation of comment f of the Restatement in Mason constituted
 

an adoption of it. Comment f explicitly provided that a


premises owner’s duty encompasses the responsibility to


"provide a reasonably sufficient number of servants to afford


a reasonable protection" against the criminal acts of third


parties. This proposition was flatly rejected in both


Williams and Scott. See Williams at 502-503 and Scott, supra.
 

Nevertheless, “this Court is not, nor is any other court,


bound to follow any of the rules set out in the Restatement.”


Rowe v Montgomery Ward, 437 Mich 627, 652; 473 NW2d 268


(1991). “[T]he application of a common-law rule to a


particular set of facts does not turn on whether those facts


can be characterized in the language of the Restatement.”


Smith v Allendale Mutual Ins Co, 410 Mich 685, 712-13; 303


NW2d 702 (1981). While the drafters of the Restatements “may


sometimes strive to choose ‘the better rule’ or to predict or


shape the development of the law, its influence depends upon


its persuasiveness.” Id. at 713 (emphasis added).
 

Even where a particular Restatement section


has received specific judicial endorsement, cases


where that section is invoked must be decided by


reference to the policies and precedents underlying


the rule restated. Textual analysis of the
 

Restatement is useful only to the extent that it


illuminates these fundamental considerations. [Id.
 

(emphasis added).]
 

Further, our rejection of § 344, and comment f, is consistent


with the overriding public policy concerns discussed in this


opinion. 


19
 
in Mason. Nor did we “implicitly note” in Mason that a
 

careful consideration of the facts in each case, namely, the
 

nature of the harm, etc., is essential in determining whether
 

a § 344 analysis is justified. Thus, the dissent ingeniously
 

injects concepts into Mason that clearly were not adopted by
 

the Mason court.
 

The dissent attempts to distinguish Williams from Mason
 

and the instant cases by explaining that Williams involved
 

"random crime” "unrelated to the character of the merchant’s
 

business", slip op, p 8, and asserting that the sod-throwing
 

incidents in these cases were “related” to Pine Knob’s
 

business because the nature of the harm was created by the
 

“character” of its business. We do not agree with the
 

dissent’s focus on the “randomness” or spontaneity of a
 

criminal act as being a relevant factor in determining whether
 

an occurrence was foreseeable. The key inquiry is not whether
 

the criminal act was "random," but rather whether, as stated
 

in Mason, the merchant has reason to recognize a risk of
 

imminent harm to an identifiable invitee. In Williams, the
 

merchant had no reason to expect the criminal attack. In
 

Mason, we distinguished Williams and Scott by explaining that
 

in Williams and Scott "[t]he merchants had had no previous
 

contact with the assailants and could not have determined that
 

the plaintiffs were in danger." Mason, supra at 402. The
 

rule set forth in this opinion is thus consistent with Mason
 

as well as Williams and Scott: A merchant should not be
 

20
 
expected to anticipate any type of criminal activity, whether
 

"random" or otherwise, before there is some specific activity
 

on the premises creating a foreseeable risk of imminent harm
 

to an identifiable invitee.14 The merchant then must make
 

efforts to notify those deputized to deal with such
 

circumstances: the police.
 

Moreover, none should be mistaken that the test of
 

“relatedness” proposed by the dissent would apply, if not now,
 

then very soon, to virtually all criminal acts in commercial
 

establishments. It cannot be questioned that there can always
 

be, given crime’s unfortunate pervasiveness, a plausible
 

argument that the criminal being drawn to the business
 

enterprise at all makes it “related” in such a way as to
 

trigger liability.15 Surely after one crime has occurred on
 

the premises, or even in a similar business, with the criminal
 

14Mason distinguished Williams by analyzing the merchant's


ability to foresee imminent harm, i.e., awareness of a


situation. However, as articulated in this opinion, we would


not go so far as to consider specific prior incidents, as that


would conflict with the general proposition in Williams and
 

Scott that merchants are “ordinarily” not legally responsible


to patrons and others on their premises for the criminal acts


of third parties, as well as the premise that a merchant can


assume that others will obey the criminal law until they


actually do otherwise. See slip op, pp 11-13.
 

15The “relatedness” test proposed by the dissent states:
 

If the nature of the harm is random and
 

spontaneous, and thus unrelated to the character of


the merchant’s business, the merchant cannot be


expected to foresee its occurrence, and reference


to prior similar occurrences is not justified. If
 

the nature of the harm was created by the character


of the merchant’s business, reference to prior


similar occurrences is justified because a merchant


can be expected to foresee such harm happening


again, in light of his prior experience with such


acts. Slip op, p 8.
 

21 
 

having been arguably drawn to that business, the “relatedness”
 

test will be met. Indeed, probably even more attenuated
 

linkages (the crime rate in the area comes to mind) will
 

suffice, as the law develops, to establish “relatedness.”
 

This will all mean, and it was this the Williams and Scott
 

courts understood, that urban merchants will be exposed to
 

crippling tort liability. 


Thus, the dissent’s rule would have its most pernicious
 

and devastating effect on the many commercial businesses that
 

are located in Michigan’s urban and high-crime areas.
 

Avoiding this kind of adverse effect was one of the Court’s
 

primary concerns when it adopted the Williams and Scott
 

16
 principles. It simply cannot be gainsaid that businesses in
 

urban and high-crime areas do foresee that criminals may
 

attack their establishments—opportunistically or with
 

premeditation. Indeed, the fact that many businesses in our
 

16Imposing liability on the business owner, poses the


threat that businesses may move away from high crime areas.


See Homant & Kennedy, Landholder Responsibility for Third


Party Crimes in Michigan: An Analysis of Underlying Legal


Values, 27 U Tol L Rev 115, 147 (1995). See also McNeal v
 

Henry, 82 Mich App 88, 90, n 1; 266 NW2d 469 (1978), stating:
 

In the majority of urban communities, both


large and small businesses could not bear the heavy


insurance burden which would be required to protect


against this extraordinary kind of liability. Some
 

of our big cities have more than their share of


destructive and violent persons, young and old, who


roam through downtown department stores and other


small retail businesses stealing and physically


abusing legitimate patrons. Guards are placed in


the stores but those activities continue. We fear
 

that to hold businessmen liable for the clearly


unforeseeable third-party torts and crimes incident


to these activities would eventually drive them out


of business. 


22
 
 

urban and high-crime areas erect barriers to protect their
 

employees is ample proof that they actually anticipate crime
 

occurring in their establishments. Plainly stated, their
 

precautions give proof that they understand that criminal acts
 

in their establishments are not “random” as the dissent would
 

understand it, but rather are foreseeable risks related to the
 

business. 


For these policy reasons, we, as the courts before us,
 

decline to adopt the dissent’s proposed rule.
 

VII. CONCLUSION
 

Consistent with our decisions in Williams, Scott, and
 

Mason, we conclude that merchants have a duty to respond
 

reasonably to situations occurring on the premises that pose
 

a risk of imminent and foreseeable harm to identifiable
 

invitees. We hold that the duty to respond is limited to
 

reasonably expediting the involvement of the police, and that
 

there is no duty to otherwise anticipate the criminal acts of
 

third parties. Finally, we reaffirm that merchants are not
 

required to provide security personnel or otherwise resort to
 

self-help in order to deter or quell such occurrences. 


In MacDonald, we reverse the Court of Appeals decision
 

denying summary disposition. In Lowry, the decision of the
 

Court of Appeals to grant summary disposition for Pine Knob is
 

affirmed.
 

CORRIGAN, C.J., and WEAVER, TAYLOR, and MARKMAN, JJ.,
 

concurred with YOUNG, J.
 

23
 
S T A T E O F M I C H I G A N
 

SUPREME COURT
 

MOLLY MACDONALD, 

Plaintiff-Appellee, 

v No. 114039 

PKT, INC, known as PINE KNOB MUSIC

THEATER, and ARENA ASSOCIATES,

jointly and severally, 

Defendants-Appellants, 

and 

CAPITAL CITIES/ABC, INC, 

Defendant. ________________________________ 

STEPHEN L. LOWRY, 

Plaintiff-Appellant, 

v No. 115322 

CELLAR DOOR PRODUCTIONS OF MICHIGAN,

INC, a Michigan corporation, and

ARENA ASSOCIATES INC, d/b/a PINE

KNOB MUSIC THEATER, jointly and

severally, 

Defendants-Appellees. ________________________________ 

CAVANAGH, J. (dissenting). 

The majority holds that under Mason v Royal Dequindre,
 

Inc, 455 Mich 391; 566 NW2d 199 (1997), a merchant has a duty
 

to “respond reasonably to situations occurring on the premises
 

that pose a risk of imminent and foreseeable harm to
 

identifiable invitees,” and the duty to respond entails
 

nothing more than the merchant’s attempt to contact the
 
police. Slip op at 2. This artful formulation of the Mason
 

duty removes any inquiry into prior similar occurrences as
 

part of the foreseeability analysis, reducing the
 

foreseeability question to whether a merchant should have
 

known that an ongoing occurrence on the premises could have
 

harmed an identifiable invitee. Because the majority created
 

this formulation of the Mason duty with brazen disregard for
 

the principles that created it, I respectfully dissent.
 

I
 

In Mason, we had to determine whether merchants have a
 

common-law duty to protect their patrons from criminal acts of
 

third parties. To resolve this question, we examined the
 

rationale behind imposing a duty on a person to protect
 

another person endangered by a third party’s conduct.
 

Generally, a person has no duty to protect another person
 

endangered by a third party’s conduct unless there is a
 

special relationship between those persons. The reason for
 

this exception to the general no-duty rule when a special
 

relationship is present is based on control. As we explained,
 

“In each situation one person entrusts himself to the control
 

and protection of another, with a consequent loss of control
 

to protect himself. The duty to protect is imposed upon the
 

person in control because he is best able to provide a place
 

of safety.” Mason at 398. Thus, while merchants are not
 

insurer’s of their invitees’ safety, we recognized that courts
 

will impose a duty on a merchant to protect its invitees, like
 

the duty imposed when a special relationship is present, when
 

they are “readily identifiable as [being] foreseeably
 

2
 
endangered.” Id. at 398, quoting Murdock v Higgins, 454 Mich
 

46, 58; 559 NW2d 639 (1997). 


After exploring the basis for imposing a duty on a
 

merchant to protect its invitees, we explained that these same
 

principles are embodied in 2 Restatement Torts, 2d, § 344,
 

pp 224-225, and comment f to § 344, pp 225-226. The
 

Restatement further explains how control and foreseeability
 

govern a landowner’s liability to its invitees. Section 344
 

provides:
 

A possessor of land who holds it open to the


public for entry for his business purposes is


subject to liability to members of the public while


they are upon the land for such a purpose, for


physical harm caused by the accidental, negligent,


or intentionally harmful acts of third persons or


animals, and by the failure of the possessor to


exercise reasonable care to 


(a) discover that such acts are being done or


are likely to be done, or
 

(b) give a warning adequate to enable the


visitors to avoid the harm, or otherwise to protect


them against it.
 

Comment f to § 344 states:
 

Since the possessor is not an insurer of the


visitor’s safety, he is ordinarily under no duty to


exercise any care until he knows or has reason to


know that the acts of the third person are
 

occurring, or are about to occur. He may, however,


know or have reason to know, from past experience,


that there is a likelihood of conduct on the part


of third persons in general which is likely to


endanger the safety of the visitor, even though he


has no reason to expect it on the part of any


particular individual. If the place or character


of his business, or his past experience, is such


that he should reasonably anticipate careless or


criminal conduct on the part of third persons,


either generally or at some particular time, he may


be under a duty to take precautions against it, and


to provide a reasonably sufficient number of
 

servants to afford a reasonable protection. 


3
 
In quoting § 344 and comment f, we recognized that the
 

imposition of a duty on a merchant to protect its invitees
 

from criminal conduct of third parties is contingent upon
 

whether the character of his business, or past experience
 

either in general or at a specific time, gives the merchant
 

knowledge or reason to know that those acts may occur again.
 

As noted in the quoted sections of the Restatement, this
 

analysis includes a consideration of whether such acts had
 

occurred in the past. 


Following these premises liability principles, we held
 

that “merchants can be liable in tort for failing to take
 

reasonable measures to protect their invitees from harm caused
 

by the criminal acts of third parties. The harm must be
 

foreseeable to an identifiable invitee and preventable by the
 

exercise of reasonable care.” Id. at 393. Clearly, our
 

holding in Mason was premised on tort principles that require
 

a look into the character of the merchant’s business and prior
 

similar occurrences to determine whether the harm is
 

foreseeable. 


The majority introduces a version of the Mason duty that
 

ignores the basis of our holding in Mason and instead holds
 

that under Mason, a merchant has a duty to respond to ongoing
 

frays on the premises, and the duty is only to make an effort
 

to contact the police. This formulation essentially uproots
 

the entire basis for imposing a duty on merchants to protect
 

their invitees that we expressed in Mason by extinguishing the
 

consideration of the character of the merchant’s business and
 

prior similar occurrences when deciding if the harm was
 

4
 
foreseeable. Instead, the majority limits the foreseeability
 

question to whether this particular fray would have harmed
 

this particular plaintiff, without citing any legal support
 

for its decision to alter the duty.
 

In reformulating the Mason duty, the majority overrules
 

Mason to the extent that it relied on § 344 and comment f of
 

the Restatement which clearly refutes the majority’s clarified
 

version of the Mason duty. Slip op at 13, n 10. The reason
 

the majority states for overruling this part of Mason is that
 

§ 344 and comment f are contrary to our holding in Williams v
 

Cunningham Drug Stores, Inc, 429 Mich 495; 418 NW2d 381
 

(1988). In Williams, we stated that merchants are not
 

ordinarily responsible for criminal acts of third parties
 

because it is against public policy to require a merchant to
 

anticipate crime in the community that may harm its invitees.
 

The majority claims that the only way to reconcile Williams
 

with the Mason holding that a merchant may be liable when the
 

criminal act that harmed its invitee was foreseeable is to say
 

that a merchant only has a duty to “respond reasonably to such
 

a situation.” Slip op at 12-13. Furthermore, the majority
 

concludes that the duty entails only making an effort to
 

contact the police because Williams prevents the imposition of
 

any further act. The majority fails to recognize, however,
 

that a new formulation of the Mason duty is not necessary in
 

light of Williams because we distinguished Williams when we
 

decided Mason.
 

According to the majority, Williams closed the door to
 

applying § 344 when deciding whether a merchant has a duty to
 

5
 
protect its invitees from criminal acts because merchants
 

cannot anticipate crime. A close reading of Williams,
 

however, reveals that is not true. In Williams, we recognized
 

§ 344, but refused to apply it to the facts because the nature
 

of the harm, random crime in the community unrelated to the
 

merchant’s business, presented the merchant with no degree of
 

control over its prevention. Williams at 501, n 15. Thus,
 

contrary to the majority’s assertion, we recognized in
 

Williams that application of § 344 depends on the facts of a
 

case, i.e., the nature of the harm and degree of control a
 

merchant had in each case.
 

In Mason, we discussed the Williams’ decision and cited
 

Justice Levin’s dissent in Alexander v American Multi-Cinema,
 

450 Mich 877; 540 NW2d 674 (1995), as support for
 

distinguishing the Williams holding. Mason at 401-402, n 5.
 

In Alexander, a theater patron was injured in a scuffle with
 

another patron who was standing in line for a late night show.
 

Justice Levin dissented from the majority’s decision to deny
 

leave, stating that he would grant leave to discuss a
 

merchant’s duty to protect its invitees from the criminal acts
 

of third parties. Quoting § 344, Justice Levin explained
 

that, although no invitor is automatically liable for criminal
 

acts of third parties on the invitor’s property, an invitor
 

has a duty to act reasonably to protect invitees from
 

foreseeable hazards. Alexander at 879-880. Distinguishing
 

Williams on its facts, Justice Levin explained that the
 

merchant in Williams was not faced with a foreseeable
 

altercation because the merchant had no control over the
 

6
 
random, spontaneous nature of the harm. Thus, Williams
 

addressed “the random assault bearing no relation to the
 

merchant’s business, and did not address the merchant’s
 

liability for risks created by the merchant’s business.” Id.
 

at 882. Noting that this distinction is relevant, Justice
 

Levin stated that although we have held that “a merchant is
 

not ordinarily required to protect customers from the criminal
 

acts of third persons, . . . [i]f one assumes that a situation
 

created by the defendant will be classified as extraordinary,
 

the distinction then becomes relevant.” Id. at 881 (emphasis
 

added). Thus, if the merchant created the situation that led
 

to the harm, the situation can be treated as extraordinary and
 

a merchant can be liable for the criminal acts that harmed its
 

patrons, if the acts were foreseeable. Justice Levin noted
 

that the facts in Alexander created such an extraordinary
 

situation because the scuffle between the patrons waiting in
 

line “was foreseeable in light of the owner’s considerable
 

experience with crowd control in general, and handling and
 

organizing the pretheater crowd in particular.” Id.
 

Contrary to the majority’s assertion that the Mason
 

holding is inconsistent with Williams, in Mason we recognized
 

Justice Levin’s dissent in Alexander as the method to
 

distinguish the Williams holding and created a duty based on
 

§ 344 that essentially focused on the nature of the harm, the
 

foreseeability of the harm, and the control a merchant has
 

over the harm. We implicitly noted that a careful
 

consideration of the facts in each case is essential to
 

determine whether a § 344 analysis is justified. If the
 

7
 
nature of the harm is random and spontaneous, and thus
 

unrelated to the character of the merchant’s business, the
 

merchant cannot be expected to foresee its occurrence, and
 

reference to prior similar occurrences is not justified. If
 

the nature of the harm was created by the character of the
 

merchant’s business, reference to prior similar occurrences is
 

justified because a merchant can be expected to foresee such
 

harm happening again, in light of his prior experience with
 

such acts. Accordingly, we concluded that “merchants have a
 

duty to use reasonable care to protect their identifiable
 

invitees from the foreseeable criminal acts of third parties.”
 

Mason at 405. Our decision in Mason was therefore clearly
 

based on a careful consideration of the common-law tort
 

principles of control and foreseeability, as articulated in
 

§ 344, and how they coexist with the holding in Williams.
 

Thus, clarification of the Mason duty is not necessary, as
 

that decision clearly acknowledged how the control and
 

foreseeability origins of § 344 may apply to certain factual
 

scenarios without violating our holding in Williams.
 

II
 

As the preceding discussion illustrates, premises
 

liability law contains many nuances that, without complete
 

consideration, may appear inconsistent. The majority has
 

seized on this apparent, but vacuous, inconsistency and held
 

that a clarification is necessary in this area of law.
 

However, read closely, the principles have distinguishing
 

characteristics that allow them to exist without conflict in
 

three separate categories.
 

8
 
(1) Traditional Premises Liability
 

Traditionally, a merchant has had a duty to protect its
 

invitees from defects or dangerous conditions on the land of
 

which the merchant knew or had reason to know. 


(2) Hybrid Premises Liability
 

Under hybrid premises liability, a merchant has a duty to
 

protect its invitees from activities involving actors on the
 

premises of which a merchant knew or had reason to know. The
 

tricky part, however, is when the activity consists of
 

criminal acts by third parties. If the activity on the land
 

is a criminal act, it must be determined whether the character
 

of the merchant’s business and the nature of the act are of a
 

sort that a merchant could be expected to anticipate. If the
 

nature of the criminal act is random, spontaneous, and thus
 

unrelated to the merchant’s business and the invitee’s purpose
 

for being there, the situation falls into category three,
 

discussed below. If, however, the nature of the criminal act
 

is not random or spontaneous, and is related to the merchant’s
 

business and the invitee’s purpose on the premises, as
 

explained in Mason and Justice Levin’s dissenting opinion in
 

Alexander, we resort to the control and foreseeability origins
 

of § 344 to determine whether the merchant has a duty. See
 

Prosser & Keeton, Torts (5th ed), § 61, p 428 (stating that a
 

possessor of land is required to take action when he has
 

reason to believe, from what he has observed or from past
 

experience, that the conduct of others on the land will be
 

dangerous to other invitees, but not when the landowner cannot
 

anticipate the harm).
 

9
 
(3) The Exception To Hybrid Liability
 

The exception to hybrid liability is when there is a
 

criminal act by third parties on the premises, but the act is
 

random and spontaneous, having no relation to the merchant’s
 

business other than that it is a business, the merchant has no
 

duty. In the exception situation, the random, spontaneous
 

nature of the act removes any degree of control a merchant has
 

over the act occurring, thus making any application of the
 

control and foreseeability origins of § 344 improper. See,
 

e.g., Williams.
 

III
 

The facts of these cases must be examined to determine
 

which of the three premises liability categories governs.
 

Because the harm did not result from a physical defect on the
 

premises, the act does not fall within the traditional
 

premises liability category. Rather, the harm resulted from
 

activity on the land, potentially criminal in nature, which
 

requires us to decide whether the nature of the act qualifies
 

it as a hybrid or exception situation. The character of
 

defendant Pine Knob’s business created the risk of harm to its
 

invitees, by subjecting its patrons to view concerts in a
 

venue where sod throwing had previously occurred. The sod
 

throwing in these cases was, therefore, not random or
 

spontaneous, was related to the invitee’s purpose on the
 

premises, qualifying these cases under the hybrid category,
 

and thus justifies applying the control and foreseeability
 

origins of § 344. 


Pine Knob charges its patrons to enter its forum to watch
 

10
 
concerts, where part of the seating area for patrons is a sodcovered hill. Once the patron sets foot inside the venue, he
 

has entrusted himself to the control and protection of Pine
 

Knob, and his ability to protect himself from activities that
 

may occur on the premises diminishes. Thus, contrary to the
 

majority’s claim, Pine Knob has better control over the
 

activities of patrons it has chosen to host than the patrons
 

themselves. The potentially criminal activity in these cases
 

that occurred in this controlled environment was patrons
 

ripping up sod from the hill and throwing it. The question
 

becomes whether this act arose from the character of Pine
 

Knob’s business, or was random or spontaneous. The majority
 

has manipulated the class of activity at issue in this case,
 

sod throwing, to be strictly criminal. In so doing, the
 

majority ignores the fact that this activity, albeit
 

potentially criminal,1 only occurred because of the nature of
 

Pine Knob’s business. In other words, a patron at Pine Knob
 

would not be subjected to injury from such a concert activity
 

like sod throwing if he were not present on Pine Knob’s
 

premises; it is unique to Pine Knob’s business. Because Pine
 

Knob charged a fee for entry, subjected its patrons to seating
 

on sod-covered ground, sod-throwing acts had occurred before,2
 

and the harm suffered was a result of plaintiffs’ purpose on
 

1

 The record indicates that some 100 sod-throwing patrons


were ejected from the premises, pursuant to Pine Knob’s


policy.
 

2 In Lowry, the sod throwing occurred once before at the


same festival-type music concert, and in MacDonald it occurred
 

twice in one night.
 

11
 
the premises and the nature of Pine Knob’s business, to watch
 

concerts at such a venue, I would find this an “extraordinary”
 

situation, unlike that in Williams. These factors justify
 

imposing a duty on Pine Knob. Pine Knob not only created the
 

risk of harm to its invitees, but it had reason to know that
 

such sod throwing may occur again, on the basis of its prior
 

experience with such activity. This act is therefore unlike
 

the random, spontaneous criminal act that occurred in
 

Williams, which had nothing to do with the nature of the store
 

owner’s business, and the concerns of applying the control and
 

foreseeability concepts do not arise. It thus becomes clear
 

that the majority’s overstated concern for subjecting
 

merchants in high crime areas to increased liability is
 

misplaced. Random crimes in the community are unique to the
 

community, not to the businesses present in that community.
 

Hence, the initial analysis, as proposed by Justice Levin and
 

further explained in § 344, focuses on whether the act that
 

injured the patron is unique to the merchant’s business, not
 

the location of the merchant’s business. If the act is unique
 

to the merchant’s business, only then is it justifiable to say
 

that the merchant has control over such acts and, thus, can
 

foresee such future occurrences. Thus, retaining the control
 

and foreseeability origins of § 344 in this situation does not
 

vitiate the Williams holding, and Pine Knob should be held
 

liable if a jury finds that the sod throwing was a foreseeable
 

act and Pine Knob failed to take reasonable measures to
 

protect its invitees from such foreseeable harm.
 

IV
 

12
 
Today the majority embarks on the unnecessary journey of
 

clarifying the duty a merchant has to protect its invitees
 

from criminal acts of third parties, as discussed in Mason.
 

This clarification takes premises liability into an unfounded
 

direction with far-reaching consequences.3 By eradicating the
 

two profound tenets behind the Mason duty, control and
 

foreseeability, the majority has created an unprecedented
 

formulation of the duty providing that if the act that caused
 

the harm could be charged as criminal, the merchant can never
 

be liable if it attempts to contact the police. Such a
 

conclusion ignores an entire category of criminal acts that
 

arise solely because of the character of the merchant’s
 

3 The following hypothetical example illustrates the


fundamental problems with the majority’s reformulation.
 

Defendant humane society allows persons interested in


adopting animals to observe the animals through cages. There


is a separate “dog wing” in which all the dogs are kept in


individual cages. Patrons on the premises interested in


adopting a dog are allowed access to the dog wing. A patron


who is visiting the dog wing gets increasingly passionate


about the dogs being cooped up and breaks open each cage,


setting the dogs free. The dogs become scared and attack a


family who was there adopting their new pet. Unfortunately,


one of the children is severely injured. The humane society


is familiar with this “passionate patron” syndrome, and it in


fact occurred the previous day, killing a patron. Luckily for


the humane society, under the majority’s clarified Mason duty,


this previous attack will not be considered, regardless of the


number of times the attacks have happened, the humane


society’s experience with controlling the animals on its


premises, and the experience the humane society has with the


harm caused by “passionate patrons.” Rather, in the midst of


watching the dogs viciously attacking patrons, all the humane


society must do to avoid liability to the injured patrons is


to make the effort to call the police. Thus, even though the


character of the business created the risk of harm, the humane


society had past experience with such mishaps, and the degree


of control the humane society has over its patrons was great,


there is no duty to protect. I cannot agree that this is a


proper formulation of the duty.
 

13
 
business and the invitee’s purpose on the premises. Because
 

this was clearly not intended when we created the Mason duty,
 

I dissent.
 

In accordance with the original, unclarified Mason duty,
 

in both of the instant cases I would deny summary disposition
 

so that a jury may determine (1) whether the sod throwing was
 

foreseeable, (2) whether the plaintiffs were identifiable
 

invitees, and (3) whether defendant Pine Knob took reasonable
 

measures to protect its invitees from the harm.
 

KELLY, J., concurred with CAVANAGH, J.
 

14