                                                                       Michigan Supreme Court
                                                                       Lansing, Michigan 48909
____________________________________________________________________________________________
                                                                C hief Justice                   Justices
                                                                Maura D. Cor rigan	



Opinion
                                                                                                 Michael F. Cavanagh
                                                                                                 Elizabeth A. Weaver
                                                                                                 Marilyn Kelly
                                                                                                 Clifford W. Taylor
                                                                                                 Robert P. Young, Jr.
                                                                                                 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




     1
      The 1994 sod-throwing incident resulted in the lawsuit

at issue in Lowry.

     2
      Although 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.

     5
         461 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



     6
      Approximately 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



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

     8
      Plaintiff 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



        9
            461 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.





      10
      Mason 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. 


      11
      A 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.

      12
      In 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    jury­
submissible    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


     13
      The 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


      14
      Mason 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.

      15
           The “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

principles.16
 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


      16
      Imposing 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 sod­

covered 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

