____________________________________________________________________________________________

____________________________________________________________________________________________________________________________ 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. Stephen J. Markman 

# Opinion

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. I NTRODUCTIONInthese 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- cove red hill, began pulling up and throwing pieces of sod. We grantedleave to address the duty of premises owners concerning the criminal acts of third parties. Un der 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 h arm 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. F ACTUAL AND P ROCEDURAL B ACKGROUND A. MACDONALD In MacDonald , plaintiff Molly MacDonald attended a concert on May 4, 1995, at Pin e Kno b 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 2plaintiff arrived at Pine Knob, she and a friend founda 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 b and s to stop performing in the event that the audience members beganthrowing sod, and announce that the sod throwing must stop. There were also flyers posted in the dressing

rooms of the ban ds req uesting the bands to make an announcement to the audience to stop throwing sod. Pursuant to that req ues t, the band finished the song and stopped pe rfo rming, 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 resum ed. After that band refused to make an

announ ce ment 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 involvedi n 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 indi cated that there had been two sod-throwing incidents at previous concerts at Pine Knob, one incident in 1991, at a Lollapalooza concert, and another

3incident 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 infailing to provide proper security, failing to stop the p erfo rmance when it should have known that continuing the performance would incite the c rowd , failing to screen the crowdto 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 parti es. Meanwhile, plaintiff movedto amend her complaint to add certaintheories including designdefect, 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 Th e Court of Appeals held that the trial court erredin g rantin g 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

1 The 1994 sod-th row ing incident resulted in the lawsuit at issue in Lowry . 2 Althoughnot fully explainedby the parties, apparently Pine Knob Music Theater and Arena A ssocia tes is one entity. Capital Cities/ABC, Inc., the owner of the radio station that sponsoredthe 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). 4were reasonable. The Court of Appeals reasoned that plaintiff submit ted 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 withsod throwing incidents before the concert. Regarding the questionwhether 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 exper t witn ess 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 clea r, wri tten 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 tha t th e proposed claims were legally sufficie nt a nd were justified by the evidence. This Court granted Pine Knob’s application for leave to appeal. 5 B. L OWRY In Lowry , plaintiff and a friend atten ded a Suicidal Tendencies/Danzig/Metallica concert at Pine Knob on June 22,

4 Approximately forty security officers a nd e leven officers from the Oakland County Sheriff’s Department were working at the concert.

5 461 Mich 987 (2000) . 51994. 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 t he con cert 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 actionagainst Pine Knob,

as well as Cellar Door Productions of Michigan, Inc., the prod ucer of the concert, alleging that defendants failed to protect plaintiff from the foreseeable dangers of sod throwing by patrons. Plaintiff also alleged that defend ants violated his rights under the Michigan Handicapper’s Civil Rights Act (MHCRA), (now: Persons With Disab ilit ies 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), argu ing 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

6 Approximately seventy crowd control personnel, as well as officers from the Oakland County Sheriff’s Department, were present at the concert. 6to plaintiff’s premises liability claim, the trial court granted summary dispositionfor defendants on the ground that the sod throwing wa s un foreseeable and that defendants took reasonable measures to protect their patrons. The trial court also grantedsummary disposition for defendants on plaintiff’s handicapper discrimination claim, holding that defendants provided plaintiff with full a nd e qual 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 boththe 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 imp licati on, 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 th e i nstant case was factually distinguishable from MacDonald because (1) unlike MacDonald , inthe 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

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

8 Plaintiff does not challenge this aspect of the Court of Appeals decision. Accordi ngly , we deem plaintiff to have abandoned his claims against Cellar Door. 7occurred before the incident in M acDonald, and (3) in MacDonald , the plaintiff was injured d uri ng 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

nu mbe r 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 reas onableness 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. S TANDARD 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 dispositionunder MCR 2.116(C)(8) tests the legal sufficiency of the complaint and allows consideration of on ly t he

9 461 Mich 987 (2000). 8pleadings. Wade v Dep’t of Corrections , 439 Mich 158, 162; 48 3 NW2d 26 (1992). The motion should be granted only whe n 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 disposi tion 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 motionshould be granted if the evidence demonstrates that no ge nui ne 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 Mich358, 362­ 363; 547 NW2d 314 (1996). IV. T HE DUTIES OF A MERCHANT We recognized in Masonthe general rule that merch ants "do not have a d uty 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 id entif iable as [being] foreseeably endangered.’" Id ., quoting Murdock v Higgins , 454 Mich46, 58; 559 NW2d 639 (1997). We further held that the

measures take n must be reasonable. Masonat 405. In the instant cases, we are called upon to further clarify the duty that we articulated in Mason . Masonand 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 altercationwith another man, Thomas Geoffrey. The plaintiff 9was in a different area of the bar when the fight began, and only witnessed its conclusion. The bar’s bouncers immediately ejected Geoffrey an d, in an attempt to avoid more conflict, instructed Kanka to remain until Geoffrey left the premises. Whenthe 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 girlfriendand 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 repeatedrequests that they call the police, the bar’s bouncers refused, although they did remove Lewis and her group from the bar. Whenthe plaintiff and Woods attempted to leave the bar, Lewis and her friends were waiting out in the parking lot, yelling at the plaintiff and threatenin g t o 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. 10We upheld a jury verdict in the plaintiff’s favor on the ground that a reasonable jury could findthat the harm to the plaintiff was foreseeable. We also held that a reas ona ble jury could find that th e 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 rec ognized 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 id entifiable invitee. Consequently, a merchant’s only duty is to respond reasonably to such a situation. To hold otherwise would mean that merchants have an obligationto provide what amounts to police protection, a proposition that we soundly rejected in both Williams and Sc ott . 10 To the extent that, in Goodman , we reliedupon ev idence of previous shootings at the bar in assessing whether a reasonable jurycould find that the Goodmanplaintiff’s injury was foreseeable, we now disavow that analysis as being flatly inconsistent with Williams and Scott .

10

Masoncited § 344 o f 2 Re statement of Torts, 2 nd , and comment f to § 344, which indicate that a merchant has a duty to take precautions against the criminal con duct of third persons that may be reasonably anticipated. We overrule that portion of Masonas conflicting withWilliams andScott . 11A 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 (5 thed) § 33, p 201; Robinson v Detroit , 462 Mich439, 457; 613 NW2d 307 (2000); Buzckowski v McKay , 441 Mich96, 108, n 16; 490 NW2d 330 ( 1992); Pla cek v Sterling Hts , 405 Mich 638, 673, n 18; 275 NW2d 511 (1979). This assumption should continue until a specific situation occurs

onthe premises that wouldca use 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 onthe basis of

a foreseeability analysis is misbegotten. Bec ause criminal activity is irrational and unpredictable, it is inthis 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 r eali ties, it is unjustifiable to make merchants, who not only have much less experience than the police in dealing withcriminal activity but are also witho ut a community deputationto do so, effectively vicariously liable for the criminal acts of third parties.

12Having 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 NW2d759 (1977). Because such overriding public po lic y concerns exist in the instant case s , the question of reasonable care is one that we will determine as a matter of law. Williams, supra at 5 01. We now make clear that, as a matter of law, fulfilling the duty to respond req uires 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, attemptedto 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 sucha 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 publ ic r esort to self-help. Such a proposition contravenes 13public 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 r equi re defendant to provide a safer environment on its premises than its invitees would encounter in the community a t lar ge. 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 involv ement 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. Onthe contrary, control is precisely what has been lost in such a situation. 12 Thus, to i mpose an ob ligationon the merchant to do more than take reasonable efforts to contact the police is at odds with the public policy principles of Williams .

11 A merchant may voluntari ly d o more than reasonably attempt to notify the police. However, we hold today, that a merchant is under no legal obligation to do so.

12 Inmost 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. 14In 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 effec tive t han 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 m easures taken by a merchant in responding to an

occurrence on the premises, a p lain tiff may not present evidence co ncerni ng 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 , gen eral ly merchants "have a duty to use reasonable care to prot ect their identifiable invitees from the foreseeable criminal acts of third parties." Id . at 405. The duty is triggeredby specific acts occurring on the premises that pose a risk of imminent and foreseeable harm to an ide ntifiable invitee. Whether an invitee is readily i denti fiable as being foreseeably endangered is a question for the factfinder if reasonable minds could differ

onthis point. See id . at 404-405. While a merchant is requiredto take reasonable measures in response to an ongoing situationthat is taking place on the premises, there is no obligationto otherwise anticipate the criminal acts of third parties. Consistent wi th W illiams , a merchant is not 15obligatedto 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. A PPLICATION A. MACDONALD The Court of Appeals in MacDonald held that plaintiff presentedsufficient evidence to create a genuine issue of material fact concerning whether the harm to her was foreseeable. W e ag ree that plaintiff created a jurysubmissible issue concerning whether she was readily identifiable as being foreseeably enda ngered once the sod throwing began. Howev er, we reject the Court of Appeals reliance on incidents previous to the day in question as a basis for concluding th at s od throwing was “foreseeable” in this instance. The Masonduty, as clarified here, is not basedupon the general question whet her 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 obligationto anticipate the criminal acts of third parties. The Court of Appeals also held that a genuine issue of material fact exists concerning whether Pine Kno b t ook reasonable mea sures 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. 16Thus, we reverse the Court of Ap peals decision denying Pine Knob’s motion for summary disposition and reinstate the trial court’s decision to gra nt summary disposition for Pine Knob pursuant to MCR 2.116(C)(8) and (10). We also reverse the Court of Appeals decisio n that the trial court abused its discretion in denying p la intiff’s motionto amen d 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. L OWRY Incontrast with MacDonald , the Court of Appeals panel in Lowry rel ied solely on the absence of evidence concerning previous incidents of sod throwing to uphold the trial court’s decisiongranting summary dispositionfor Pine Knob. This too

was error. Whether Pine Knob could have anticipated that sod throwing would b e 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 upholdsummary disposition in Pine Knob’s favor on plaintiff’s 17handicapper discrimination claim. We agree that Pine Knob fully accommodated plaintiff’s disability. VI. R ESPONSE TO THE D ISSENT The dissent accuses us of “uproot[ing] the entire basis for imposing a duty on merchants to protect th eir invitees that we expressed in Mason. . . .” Slip op, pp 4-5. We disagree. The principal differ ence between the dissent and the majority lies in our respective attempts to recon cile our several premises liability cases and th e policies that undergirdthem. The dissent seeks in effect to limit or ignore the holdings of Williams and Scott. T he m ajority refuses to do so. Inits effort to explain away the tor t duty policy choices this Court adopted inWilliams and Scott , the dissent reads into Masonrationales and holdings the dissent would ha ve liked Masonto have adopted but which that opinio n plainly did not embrace. We believe that the actual policy rationales of Williams and Scott must be reconciled with the merchant’s duty set forthin Mason. In reconciling these cases, we seek to establisha clear rule. We reject the premises liability rule that the dissent proposes because (1) it provides little guidance to any premises owner concerning its oblig ations 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

18commercial enterprises to remove themselves from our troubled urban and high-crime communities. Mason undeniably c ite s 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

merch ant to protect its invitees from criminal conduct of thirdparties 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 inthe text of the restatement, the “character of the merchant’s business” is not even discussed

13 The dissent cann ot s eriously suggest that the mere quotationof comment f of the Restatement in Masonconstituted anadoption 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 re asonable 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, boundto 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 canbe characterized in the language of the Restatement.” Smithv 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). Evenwhere 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. 19in Mason . Nor did we “imp lic itly note” in Masonthat 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 Masonthat clearly were not adopted by the Masoncourt. 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 sp onta neity of a criminal act as being a relevant factor in determining whether

anoccurrence 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 invite e. 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]h e merchants had had no previous contact with the assailants and could not have determinedthat the plaintiffs wer e in dange r." Mason, supra at 402. The rule set forth in this opinion is thus consistent with Mason

as well as Wil liams and Scott : A merchant should not be

20expected 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 i nvitee . 14 The merchant then must make efforts to notify th ose deputized to deal with such circumstances: the police. Moreover, none s houl d 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 t o trigger liability. 15 Sure ly after one crime has occurred on the premises, or even in a similar business, with the criminal

14

Masondistinguished 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 wouldconflict with the general proposition in Will iams 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 c rimina l law until they actually do otherwise. See slip op, pp 11-13.

15 The “relatedness” test proposed by the dissent states: If the nature of the harm is random and spontaneous, and thus unrelatedto 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 canbe expected to foresee s uc h harm happening again, in li ght of his prior experience with such acts. Slip op, p 8. 21having been arguably drawn to that business, the “relatedness” test will be met. Indeed, pro bably even more attenuated linkages (the crime rate in the area comes to mind) will suffi ce, as the law develops, to establish “relatedness.” This will all mean, and it was this the Willia ms and Sco tt courts understood, that urban merchants will be exposed to crippling tort liability. Thus, the dissent’s rule would have its most pernicious anddevastating 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 a dopt ed the Williams and Scott

16 principles . It simply cannot be gainsaid that businesses in urbanand high-crime areas do foresee that criminals may attack their establishments—opportunistically or with premeditation. Indeed, the fact that many businesses in our

16 Imposing liability on the business owner, poses the threat tha t busi nesses may move away from high crime areas. See Homant & Kennedy , Landholder Responsibility fo r Thi rd Party Crimes in Michigan: An Analysi s of Underlying Legal Values , 27 U Tol L Rev 115, 147 (1995). See a lso McNeal v Henry , 82 Mich App 88, 90, n 1; 266 NW2d 469 (1978), stating: Inthe majority of urban communities, both large and small businesses could not bear the heavy insurance burdenwhich 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 ab usin g legitimate patrons. Guards are placed in the stores but those activities continue. We fear that to h old businessmen liable for the clearly unforeseeable third-party torts and crimes incident to these activities wouldeventually drive them out of business.

22urbanand high-crime areas erect barriers to protect their employees is ample proof that they actually anticipate crime occurring in their establish ments . Plainly stated, their precautions give proof that they understand that criminal acts intheir establishments are not “random” as the dissent would understandit, 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. C ONCLUSION Consistent with our decisions in Williams , Scott, and Mason , we conc lude t hat merchants have a duty to respond reasonably to situations occurring on the premises that pose

a risk of imminent and foreseeable harm t o id entifiable invitees. We hold that the duty t o re spond is limited to reasonably expediting the involvement of the police, and that there is no duty to otherwise anticipate the criminal acts of third part ies. 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 M acDo nald , we reverse the Court of Appeals decision denying summary disposition. In Lowry , the decis ion of the Court of Appeals to grant summary disposition for Pine Knob is affirmed. C ORRIGAN , C.J., and WEAVER , T AYLOR , and M ARKMAN , J J., concurred with Y OUNG , J.

23S 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 hol ds 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 f ore seeable harm to ide ntifiable invitees,” and the duty to respond ent ail s nothing more than the merchant’ s at tempt to contact thepolice. 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 fores eeability question to whether a merchant should have known that a n ongoing occurrence on the premises could have harmedan identifiable invitee. Because the majority created this formulation of the Masonduty with brazen disregard for the principles that created it, I respectfully dissent. I In Mason , we had t o dete rmine whether merchants have a common-law duty to protect their patrons from criminal acts of third parties. To resolve this question, we examined the ration ale 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

e nda ngeredby a third party’s conduct unless there is a special relationship between those persons. T he r eason for this exception to the general no-duty rule when a special relationship is present is based on control. As we explained, “Ineach situationone 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. ” M asonat 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 2endangered.” 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 explainedthat these same principles are embodied in 2 Restatement Torts , 2 d, § 344, pp 224-225, and comment f to § 344, pp 225-226. The Restatement further explains how control and foreseeability governa landown er’s liability to its invitees. Section 344 provides: A

possessor of land wh o hold s it open to the public for entry for his busine ss pur poses is subject to liability to members of the public while they are u pon th e land for such a purpose, for physical harm caused by the accidental, negligent, or in tentionally harmful acts of third persons or animals, and by the failure of the p osse ssor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warn in g adequate to enable the visitors to avoid the harm, or otherwise to protect them against it. Comment f to § 344 states: Since the possesso r is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he know s or h as 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 o n 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 par ticular individual. If the place or charact e r of his business, or his past experience, is such that he should reasonably anticipate careless or crim in al 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.

3Inquoting § 344 and comment f, we recognized that the impositionof a duty on a merchant to protect its invitees from criminal conduct of thi rd p arties is contingent upon whet her 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 secti ons 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 ha rm must b e foreseeable to anidentifiable 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 det ermi ne whether the harm is foreseeable. The majority introduces a version of the Masonduty that ignores the basis of our holding in Masonand 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 considerationof the character of the merchant’s business and prior similar occurrences when decid ing if the harm was 4foreseeable. Instead, the majority limits the foreseeability questionto whether this particular fray would have harmed this particular pla inti ff, 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 whichclearly 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 Masonis that § 344 and comment f are contrary to our holding in Williams v Cunningham Drug Stores, Inc , 429 Mich 495; 418 NW 2d 381 (1988). In Williams , we stated that merchants are not ordinarily responsible for crimin al ac ts 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 tha t the only way to reconcile Williams withthe 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 12-1 3. Furthermore, the majority concludes that the dut y enta ils only making an effort to contact the police because Williams prevents the imposition of any fur ther a ct. 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 maj ority, Williams closed the door to applying § 344 whendeciding whether a merchant has a duty to 5protect its invitees from c rimin al 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, presentedthe merchant with no degree of control over its prevention. Williams at 501, n 15. Thu s, contrary to the majority’s assertion, we recognize d i n Williams that application of § 344 depends on the facts of a

ca se, 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 , 4 50 Mich 877; 540 NW2d 674 (1995), as support for distinguishing the Williams holding. Masonat 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 wo uld gr ant 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 reason ably to protect invitees from foreseeable hazards. Alexander at 879-880. Distinguishing Williams on its facts , Ju stice Levin explained that the merchant in Williams was not faced with a foreseeable altercationbecause the merchant had no control over the 6ran dom, spontaneous nature of the harm. Thus, Williams addressed“the random assault bearing no relation to the merchant’s business, and did not address the me rchant’s liability for risks createdby the merchant’s business.” Id. at 882. Noting that this distinction is relev ant , Justice Levinstated 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 create d su ch 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 t he majority’s assertion that the Mason holding is inconsistent with Williams , in Mason we recognized Justice Levin’s dissent in Alexander as th e me thod 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 m erchant has

over the harm. We imp licitly noted that a careful

c ons iderationof the facts in each case is essential to determine whether a § 344 analysis is justified. If the 7nature of the harm is random and spontaneous, and thus unrelatedto 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 char acter of t he merchant’s business, reference to prior similar occurrences is justified because a merchant can be expected to foresee such harm happening a gain, in light of his prior experience with such acts. Accordingly, we concluded that “merchants have a dutyto use reasonable care to protect their identifiable invitees from the foreseeable criminal acts of third parties.” Mason at 405. Our decision in Masonwas therefore clearly based on a careful consideration of the common-law tort principles of control and foreseeabi lity , as articulated in § 344, and how they coexist with the holding in Williams. Thus, clarification of the Mason duty is n ot necessary, as that decision cle arly 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 . Th e 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 , spon taneous, and thus unrelatedto the merchant’s business and the invitee’s purpose for be ing there, the situation falls into category three, discussedbelow. 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 (5 thed), § 61, p 428 (stating that a possessor of land is required to take action when he has

reasonto 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 ac t occurring, thus making any application of the control and foreseeability origins of § 344 i mproper. See, e.g., Williams . III The facts of these cases must be examine d to d etermine whichof 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 natu re, 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 ha d previously occurred. The sod throwing in these cases was, t here fore, not random or spontaneous, was related to the invitee’s purpose on the premises, qualifying these cases under the hybrid cat egor y, and thus justifie s a pplying the control and foreseeability origins of § 344. Pine Knob charges its patrons to enter its forum to watch 10concerts, where part of the seating area for patrons is a sodcovered hill. Once the patron sets foot inside the venue, he has entrusted himse lf 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 bett er c ontrol over the activities of patrons it has chosen to host than the patrons themselves. The potentially criminal activity inthese cases that occurred in this controll ed environment was patrons rip ping 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, sodthrowing, to be strictly criminal. In so doing, the maj ority 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 Knobcharged a fee for entry, subjected its patrons to seating

onsod-covered ground, sod-throwing acts hadoccurred 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 , pu rsuant 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. 11the 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 mercha nts 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 Willia ms holding, and Pine Knob should be held liable if a jury finds that the sodthrowing was a foreseeable act and Pine Knob fai led to take reasonable measures to protect its invitees from such foreseeable harm. IV 12Today the majority embarks on the unnecessary journey of clarifying the duty a merc han t has to protect its invitees from criminal acts of thi rd parties, as discussed in Mason . This clarification takes premises liability into an unfounded directionwith far-reaching consequences. 3 By eradicating the two profound tenets behind the Mason duty, control and foreseeability, the majority has created an unprecedented formulationof the duty providing that if the act that caused the harm could be charged as criminal, the merchant can never be liable i f i t attempts to contact the police. Such a conclusionignores an enti re c ategory of criminal acts that arise solely because of th e ch aracter 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 v isit ing the dog wing gets increasingly passionate about the dogs being cooped up and breaks open each cage, setting the dogs free. The dogs b ecome 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 happ ened , the humane society’s experience with contr ol ling the animals on its premises, and the experience the humane society has with the harmcaused by “passionate patrons.” Rather, in the midst of watching the dogs viciouslyattacking 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 societyhad past experience with such mishaps, and the degree of control the humane society has over its patrons was great, there is no duty to pro tect. I cannot agree that this is a proper formulation of the duty. 13business and the invitee’s purpose on the premises. Because this was clearly not intended when we created the Mason duty, I dissent. Inaccordance with the original, unclarified Mason duty, inboth 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 Knobtook reasonable measures to protect its invitees from the harm. K ELLY , J., concurred with C AVANAGH , J.

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