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### STATE OF MICHIGAN

COURT OF APPEALS

BURTIEL DEAN, COURTNEY PITTS, andELLIS 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Plaintiff-Appellees, UNPUBLISHED May 21, 2015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, I NC., d/b/a MARVIN’S GARDEN INN, LC No. 2012-128792-NO

Defendant-Appellant.

Before: M URPHY , P.J., and S TEPHENS and G ADOLA , JJ.

P ER C URIAM

.

In this premises liability action, defendant appeals by leave granted 1 an order denying
defendant’s motion for summar y disposition under MCR 2.116(C)(1 0). We reverse and remand for entry of an order granting su mmary disposition in favor of defendant.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case arises out of a shoo ting that occurred during a part y in a hotel room at Marvin’s Garden Inn in Southfield, Michigan. After attending a local fa ir, 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, includi ng plaintiffs Burtiel Dean and Courtney Pitts. Ellis Lee Ro ss also sustained numerous gunshot wounds and died as a result.

Plaintiffs subsequently filed suit against defendant, alleging several claims sounding primarily in negligence and prem ises liability. Defendant file d 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1 Dean v Southfield Lodge, Inc , unpublished order of the Court of Appeals, entered April 28, 2014 (Docket No. 320606).-2- the unforeseeable criminal acts of a third party, to provide se curity, or to resort to self-help enforcement of the law. Defendant further argued that it compl ied with its sole legal duty under the circumstances: to expedite the involvement of the police on ce its employees learned of the shooting. The trial court denied summary disposition to defend ant, concluding that there were “genuine issues of material fact as to the reasonableness of de fendant’s actions.” Defendant then sought and was granted leave t o bring an interlocutory appeal b efore 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 M CR 2.116(C)(10) challenges the f actual sufficiency of the complaint, with the trial court considering the entire record i n 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 support ing its position with documentary evidence, but once the moving party meets its burden, the burde n 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) (citati on and quotation marks omitted).

Judgment as a matter of law is appropriate when the evidence d emonstrates 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 e stablish a genuine issue of material fact, but mere conjecture or speculation is insufficie nt. Id. at 97-98. In reviewing a denial of summary disposition, we consider only evidence that w as 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 th e evidence that had been presented to the circuit court at the time the motion was decid ed.” 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 mi ght 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 lef t unaddressed by the parties requires our consideration. In their appellate briefs, the par ties cite extensively to evidence that cannot be considered by this Cour t in reviewing the trial court ’s decision on defendant’s motion for summary disposition under MCR 2.116(C)(10). Each party cit es to the deposition transcripts of Anika Garnes, a partygoer, B rian Correll, the security guard , and Emad Bahoura, the desk clerk. These deposition transcripts were never filed in the tr ial 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[is position] Response” that was never filed in the trial court according to the register of ac tions. Because our review is li mited 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.-3- Defendant argues that the sole duty it owed to plaintiffs rega rding the shooting incident was a duty to reasonably expedite police involvement after its employees became aware that the circumstances posed a risk of imm inent harm to plaintiffs as id entifiable 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 perso n 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 act s of a third party in the absence of a special relationship between t he 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, a n employer his employees, owners and occupiers of land their invi tees, a doctor his patient, and business invitors or merchants their
business invitees.” Id. at 494. These special relationships give rise to a duty to ex ercise “reasonable care toward those pa rties who are readily identifia ble 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 scop e of the duty of reasonable car e arising from a merchant’s special relationship with invite es, and held that “a merchant’s duty of reasonable care does not include providing armed, visible security guards to deter crimi nal 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 s cope of this duty and held th e following:

[A] merchant has no obligation generally to anticipate and prev ent criminal acts against its invitees. . . . [W]e have never recognized as “for eseeable” 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 m erchant’s only duty
is to respond reasonably to such a situation. . . .

A premises owner’s duty is lim ited 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 ass umption should continue until a specific situat ion occurs on the premises that would cause a reasonable person to recognize a risk of imminent harm to an id entifiable invitee. It is only a present situation on the premises, not any past in cidents, that creates a duty to respond. [ Id. at 334-335.]

2 Defendant does not argue that pl aintiffs were trespassers or l icensees at the time they were injured. Instead, defendant argues that, even assuming plainti ffs were invitees, defendant complied with its legal duties under the circumstances.-4- Accordingly, a merchant’s duty to respond reasonably to situati ons 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 deter mining the foreseeability of risk because criminal conduct is inherently irrational and unpredict able. Id. Further, a merchant’s duty to respond to a risk of imminent harm resulting from a cri minal 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 reason ably expediting police involvement where it is given notice of a ‘specific situation o ccurring on the premises that would cause a reasonable person to recogn ize a risk of imminent harm to an identifiable invitee.’ ” Id. at 614, quoting MacDonald , 464 Mich at 335 (brackets omitted). The Court reasoned as fo llows:

Landlords, like merchants, have a low degree of control over th e 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 r easonable efforts to expedite police involvement would essentially result in the dut y to provide police protection, a concept this Court has repeatedly rejected. Cons istent with our recognition that the duty to provide police protection is veste d with the government, and given the unpredic tability 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-busine ss invitee relationship and Bailey involved a landlord-tenant relationship, we conclude that their holdings a pply by analogy to this case involving the special relations hip between an innkeeper and its guests.

Accompanying its motion for summary disposition, defendant att ached portions of the depositions of Dean and Pitts. D ean and Pitts both testified t hat plaintiffs were injured by a sudden, unexpected act of criminal violence within a private ho tel room. Dean stated that after she was shot, she ran to the hotel lobby and asked the desk cle rk “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 ini tial burden of proof. See Peña

, 255 Mich App at 310. Defendant met this burden by providing ev idence that its employees called the police once they were aware of the shooting on the p remises, and thus fulfilled their duty to plaintiffs to reasonably e xpedite police in volvement af ter recognizing a risk of harm.

Conversely, other than citing to the same deposition excerpts offered by defendant, plaintiffs offered no new eviden ce suggesting that the hotel st aff 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 to ok the employees to summon the police. In addressing a motion for summary disposition under M CR 2.116(C)(10), once the moving party meets its initial burden of providing evidence sup porting its position, the burden shifts to the nonmoving party to show that a genuine issue of d isputed fact exists. Peña , 255 Mich App at 310. In meeting this responsive burden, the nonmov ing party must set forth specific disputed facts and may not rest on mere allegations or denials in pleadings. Id.-5- Plaintiffs did not present any specific evidence suggesting tha t 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 th e 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 perso ns were gathered in a hotel ro om 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 susp ect that there was a risk of imm inent 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 t o protect its guests from foreseeable criminal activities in the common areas of the prem ises. 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 liab le because defendant voluntarily provided a security guard on the premises and, acco rding to plaintiffs, the security guard negligently performed his duties. This argument lacks me rit. “[A] merchant, and the security company it hires, who voluntarily take safety precauti ons 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 unde r MCR 2.116(C)(10) based on the evidence presented at the time the court decided t he 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 pol ice involvement in response to the unforeseeable criminal acts of a third party within a guest’s h otel room.

Reversed and remanded to the trial court for entry of an order granting summary disposition in favor of defe ndant. We do not retain jurisdicti on.

/s/ William B. Murphy /s/ Cynthia Diane Stephens
/s/ Michael F. Gadola