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STATE OF MICHIGAN 

COURT OF APPEALS 

BURTIEL DEAN, COURTNEY PITTS, and 

ELLIS E. ROSS, JR., and LISA ROSS, CoPersonal Representatives of the Estate of ELLIS 

LEE ROSS, 

 Plaintiff-Appellees, 

UNPUBLISHED 

May 21, 2015 

v No. 320606 

Oakland Circuit Court 

SOUTHFIELD LODGE, INC., d/b/a MARVIN’S 

GARDEN INN, 

LC No. 2012-128792-NO 

 Defendant-Appellant. 

Before: MURPHY, P.J., and STEPHENS and GADOLA, JJ. 

PER CURIAM. 

 In this premises liability action, defendant appeals by leave granted1

 an order denying 

defendant’s motion for summary disposition under MCR 2.116(C)(10). We reverse and remand 

for entry of an order granting summary disposition in favor of defendant. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

 This case arises out of a shooting that occurred during a party in a hotel room at Marvin’s 

Garden Inn in Southfield, Michigan. After attending a local fair, a large group of primarily 

underage people gathered in a room at the hotel for a birthday party. Shortly after the party 

began, an unidentified gunman entered the hotel room and opened fire, shooting until his gun ran 

out of ammunition. Several young partygoers were shot, including plaintiffs Burtiel Dean and 

Courtney Pitts. Ellis Lee Ross also sustained numerous gunshot wounds and died as a result. 

 Plaintiffs subsequently filed suit against defendant, alleging several claims sounding 

primarily in negligence and premises liability. Defendant filed a motion for summary disposition 

pursuant to MCR 2.116(C)(10). Defendant argued that it had no duty to protect plaintiffs from 

 

1 Dean v Southfield Lodge, Inc, unpublished order of the Court of Appeals, entered April 28, 

2014 (Docket No. 320606). 
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the unforeseeable criminal acts of a third party, to provide security, or to resort to self-help 

enforcement of the law. Defendant further argued that it complied with its sole legal duty under 

the circumstances: to expedite the involvement of the police once its employees learned of the 

shooting. The trial court denied summary disposition to defendant, concluding that there were 

“genuine issues of material fact as to the reasonableness of defendant’s actions.” Defendant then 

sought and was granted leave to bring an interlocutory appeal before this Court. 

II. ANALYSIS 

 “A trial court’s decision on a motion for summary disposition is reviewed de novo.” 

DeFrain v State Farm Mut Auto Ins Co, 491 Mich 359, 366; 817 NW2d 504 (2012). “A motion 

for summary disposition under MCR 2.116(C)(10) challenges the factual sufficiency of the 

complaint, with the trial court considering the entire record in a light most favorable to the 

nonmoving party.” LaFontaine Saline, Inc v Chrysler Group, LLC, 496 Mich 26, 34; 852 NW2d 

78 (2014). “The moving party has the initial burden of supporting its position with documentary 

evidence, but once the moving party meets its burden, the burden shifts to the nonmoving party 

to establish that a genuine issue of disputed fact exists.” Peña v Ingham Co Rd Comm, 255 Mich 

App 299, 310; 660 NW2d 351 (2003) (citation and quotation marks omitted). 

 Judgment as a matter of law is appropriate when the evidence demonstrates that no 

genuine issue of material fact remains. Karbel v Comerica Bank, 247 Mich App 90, 97; 635 

NW2d 69 (2001). Circumstantial evidence can be sufficient to establish a genuine issue of 

material fact, but mere conjecture or speculation is insufficient. Id. at 97-98. In reviewing a 

denial of summary disposition, we consider only evidence that was properly presented before the 

trial court. Barnard Mfg Co v Gates Performance Engineering, Inc, 285 Mich App 362, 380; 

775 NW2d 618 (2009). Similarly, “[o]ur review is limited to the evidence that had been 

presented to the circuit court at the time the motion was decided.” Innovative Adult Foster Care, 

Inc v Ragin, 285 Mich App 466, 475-476; 776 NW2d 398 (2009). “A reviewing court may not 

employ a standard citing the mere possibility that the claim might be supported by evidence 

produced at trial.” Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999). 

 As a preliminary matter, we note that an evidentiary issue left unaddressed by the parties 

requires our consideration. In their appellate briefs, the parties cite extensively to evidence that 

cannot be considered by this Court in reviewing the trial court’s decision on defendant’s motion 

for summary disposition under MCR 2.116(C)(10). Each party cites to the deposition transcripts 

of Anika Garnes, a partygoer, Brian Correll, the security guard, and Emad Bahoura, the desk 

clerk. These deposition transcripts were never filed in the trial court—or even properly cited 

to—before that court decided the motion now at issue. Likewise, plaintiffs’ appellate brief cites 

to an “Amended S[ummary] D[isposition] Response” that was never filed in the trial court 

according to the register of actions. Because our review is limited to evidence that was presented 

to the trial court at the time the motion was decided, Innovative Foster Care, 285 Mich App at 

475-476, and it is improper to consider evidence that only might be developed at trial to support 

a party’s contention, Maiden, 461 Mich at 121, we will not consider these depositions and 

documents in reviewing the trial court’s ruling. 
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 Defendant argues that the sole duty it owed to plaintiffs regarding the shooting incident 

was a duty to reasonably expedite police involvement after its employees became aware that the 

circumstances posed a risk of imminent harm to plaintiffs as identifiable invitees.2

 We agree. 

 “The threshold question in a negligence action is whether the defendant owed a duty to 

the plaintiff.” Fultz v Union-Commerce Assoc, 470 Mich 460, 463; 683 NW2d 587 (2004). In 

general, there is no legal duty or obligation requiring a person to protect or aid another. Krass v 

Tri-County Security, Inc, 233 Mich App 661, 668; 593 NW2d 578 (1999). “Moreover, an 

individual has no duty to protect another from the criminal acts of a third party in the absence of 

a special relationship between the defendant and the plaintiff or the defendant and the third 

party.” Graves v Warner Bros, 253 Mich App 486, 493; 656 NW2d 195 (2002). Examples of 

special relationships recognized under Michigan law include “a common carrier that may be 

obligated to protect its passengers, an innkeeper his guests, an employer his employees, owners 

and occupiers of land their invitees, a doctor his patient, and business invitors or merchants their 

business invitees.” Id. at 494. These special relationships give rise to a duty to exercise 

“reasonable care toward those parties who are readily identifiable as being foreseeably 

endangered.” Id. (citations, quotation marks, and brackets omitted). 

 In Williams v Cunningham Drug Stores, Inc, 429 Mich 495; 418 NW2d 381 (1988), our 

Supreme Court addressed the scope of the duty of reasonable care arising from a merchant’s 

special relationship with invitees, and held that “a merchant’s duty of reasonable care does not 

include providing armed, visible security guards to deter criminal acts of third parties” because 

the duty to provide protection against criminal acts “is vested in the government by constitution 

and statute.” Id. at 501. In MacDonald v PKT, Inc, 464 Mich 322; 628 NW2d 33 (2001), our 

Supreme Court expounded upon the scope of this duty and held the following: 

[A] merchant has no obligation generally to anticipate and prevent criminal acts 

against its invitees. . . . [W]e have never recognized as “foreseeable” a criminal 

act that did not . . . 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. . . . 

 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 with disobey the law. A merchant can 

assume that patrons will obey the criminal law. . . . This assumption should 

continue until a specific situation occurs on the premises that would cause a 

reasonable person to recognize a risk of imminent harm to an identifiable invitee. 

It is only a present situation on the premises, not any past incidents, that creates a 

duty to respond. [Id. at 334-335.] 

 

2

 Defendant does not argue that plaintiffs were trespassers or licensees at the time they were 

injured. Instead, defendant argues that, even assuming plaintiffs were invitees, defendant 

complied with its legal duties under the circumstances. 
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Accordingly, a merchant’s duty to respond reasonably to situations occurring on the premises 

does not arise until after the circumstances give notice of an imminent risk of harm. Id. at 335. 

Past incidents of criminal activity are not considered in determining the foreseeability of risk 

because criminal conduct is inherently irrational and unpredictable. Id. Further, a merchant’s 

duty to respond to a risk of imminent harm resulting from a criminal act “is limited to reasonably 

expediting the involvement of the police.” Id. at 345. 

 In Bailey v Schaaf, 494 Mich 595, 614-618; 835 NW2d 413 (2013), our Supreme Court

extended the duty applicable to merchants found in MacDonald to the landlord-tenant context. 

The Court held that “a landlord has a duty to respond by reasonably expediting police 

involvement where it is given notice of a ‘specific situation occurring on the premises that would 

cause a reasonable person to recognize a risk of imminent harm to an identifiable invitee.’ ” Id.

at 614, quoting MacDonald, 464 Mich at 335 (brackets omitted). The Court reasoned as follows: 

Landlords, like merchants, have a low degree of control over the criminal acts of 

others. Our conclusion today does not expand a landlord’s duty concerning thirdparty criminal acts; requiring more of a landlord than taking reasonable efforts to 

expedite police involvement would essentially result in the duty to provide police 

protection, a concept this Court has repeatedly rejected. Consistent with our 

recognition that the duty to provide police protection is vested with the 

government, and given the unpredictability of specific acts of crime, we decline to 

impose any greater obligation on a landlord. [Id. at 616-617 (footnote omitted).]

Although MacDonald involved a merchant-business invitee relationship and Bailey involved a 

landlord-tenant relationship, we conclude that their holdings apply by analogy to this case 

involving the special relationship between an innkeeper and its guests. 

 Accompanying its motion for summary disposition, defendant attached portions of the 

depositions of Dean and Pitts. Dean and Pitts both testified that plaintiffs were injured by a 

sudden, unexpected act of criminal violence within a private hotel room. Dean stated that after 

she was shot, she ran to the hotel lobby and asked the desk clerk “to call the police again and tell 

them that [she] was there.” (Emphasis added.) This testimony indicates that defendant’s 

employees had already called the police in response to hearing shots fired on the premises. As 

the party moving for summary disposition, defendant had the initial burden of proof. See Peña, 

255 Mich App at 310. Defendant met this burden by providing evidence that its employees 

called the police once they were aware of the shooting on the premises, and thus fulfilled their 

duty to plaintiffs to reasonably expedite police involvement after recognizing a risk of harm. 

 Conversely, other than citing to the same deposition excerpts offered by defendant, 

plaintiffs offered no new evidence suggesting that the hotel staff failed to reasonably expedite 

police involvement at the scene. Plaintiffs failed to proffer any evidence regarding when 

defendant’s employees learned of the shooting or how long it took the employees to summon the 

police. In addressing a motion for summary disposition under MCR 2.116(C)(10), once the 

moving party meets its initial burden of providing evidence supporting its position, the burden 

shifts to the nonmoving party to show that a genuine issue of disputed fact exists. Peña, 255 

Mich App at 310. In meeting this responsive burden, the nonmoving party must set forth 

specific disputed facts and may not rest on mere allegations or denials in pleadings. Id. 
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Plaintiffs did not present any specific evidence suggesting that defendant failed to fulfill its duty 

under the circumstances. Therefore, plaintiffs failed to meet their evidentiary burden under 

MCR 2.116(C)(10). 

 Plaintiffs argue that defendant knew of the imminent threat to plaintiffs and should have 

called the police almost two hours before the shooting occurred because defendant’s security 

guard knew a large group of underage people were drinking in the hotel room. However, “there 

is no general duty to anticipate and prevent criminal activity.” Graves, 253 Mich App at 497. 

The mere fact that underage persons were gathered in a hotel room to consume alcohol does not 

give rise to a risk of imminent harm of the type that occurred here. Until the shooting took place, 

defendant had no reason to suspect that there was a risk of imminent harm to the partygoers. See 

Bailey, 494 Mich at 614. 

 Plaintiffs also cite Stanley v Town Square Cooperative, 203 Mich App 143, 149; 512 

NW2d 51 (1993), for the proposition that defendant had a duty to protect its guests from 

foreseeable criminal activities in the common areas of the premises. However, plaintiffs were 

not injured in a common area in the hotel, but rather were shot while attending a party in a 

private hotel room. Accordingly, Stanley is inapplicable to this case. 

 Finally, plaintiffs contend that defendant should be held liable because defendant 

voluntarily provided a security guard on the premises and, according to plaintiffs, the security 

guard negligently performed his duties. This argument lacks merit. “[A] merchant, and the 

security company it hires, who voluntarily take safety precautions related to the general threat of 

crime cannot be sued on the theory that the safety precautions were less effective than they could 

or should have been.” Krass, 233 Mich App at 684. 

III. CONCLUSION 

 Summary disposition in favor of defendant was appropriate under MCR 2.116(C)(10) 

based on the evidence presented at the time the court decided the motion. Viewing the evidence 

in the light most favorable to plaintiffs, no genuine issue of material fact existed regarding 

whether defendant fulfilled its duty to reasonably expedite police involvement in response to the 

unforeseeable criminal acts of a third party within a guest’s hotel room. 

 Reversed and remanded to the trial court for entry of an order granting summary 

disposition in favor of defendant. We do not retain jurisdiction. 

/s/ William B. Murphy 

/s/ Cynthia Diane Stephens 

/s/ Michael F. Gadola