                           STATE OF MICHIGAN

                            COURT OF APPEALS



MARTEZ TILLMAN,                                                      UNPUBLISHED
                                                                     December 6, 2016
               Plaintiff-Appellant,

v                                                                    No. 328520
                                                                     Wayne Circuit Court
PERFECT PITCHER SPORTS PUB, INC.,                                    LC No. 11-004876-NO

               Defendant-Appellee.


Before: JANSEN, P.J., and MURPHY and RIORDAN, JJ.

PER CURIAM.

        Plaintiff and his cousin were shot outside of defendant’s bar shortly after plaintiff had
stopped performing his music inside the establishment. The police were summoned by
defendant’s bouncer around the time the shooting erupted, arriving at the scene within five
minutes, at which point many patrons had already scattered. There was evidence that within a
two-hour period leading up to the shooting, widespread criminal activity was afoot inside the bar
and there had been at least two altercations, yet defendant did not contact the police. Plaintiff
filed suit, alleging that defendant had failed to reasonably expedite the involvement of the police
before the shooting began despite the risk of imminent harm created by the criminal activity and
the two incidents or altercations, of which defendant was fully aware. The trial court summarily
dismissed the action, concluding as a matter of law under MCR 2.116(C)(10) that defendant had
no duty to contact the police before plaintiff and his cousin were shot. This Court reversed,
holding that “plaintiff submitted sufficient evidence to create a question of material fact whether
or not defendant violated its duty to timely contact the police.” Tillman v Perfect Pitcher Sports
Pub, Inc, unpublished opinion per curiam of the Court of Appeals, issued October 22, 2013
(Docket No. 309121). On remand, the trial court again summarily dismissed the suit, ruling that
plaintiff had failed to submit documentary evidence sufficient to create an issue of fact with
respect to the element of causation. Plaintiff appeals as of right, and we again reverse.

       In regard to potential civil liability arising out of criminal acts committed by third parties
against patrons on business premises, a merchant has a duty to reasonably expedite the
involvement of the police, but “only when the merchant has notice that a third party’s criminal
acts pose a risk of imminent and foreseeable harm to an identifiable invitee.” Bailey v Schaaf,
494 Mich 595, 599; 835 NW2d 413 (2013), citing MacDonald v PKT, Inc, 464 Mich 322, 338;
628 NW2d 33 (2001). The earlier panel in Tillman held:


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              Viewing the facts in the light most favorable to plaintiff, several crimes
       likely occurred at the bar during the first and second incidents, including an
       assault on plaintiff's companion, MCL 750.81, the carrying of concealed
       weapon(s), MCL 750.227, and the possession/use of a weapon while intoxicated,
       MCL 750.237, as well as the civil infraction of carrying a concealed weapon in a
       bar, MCL 28.425o(d). More generally, the bar was full of highly intoxicated gang
       members, many of whom were carrying firearms.

               Given these facts, we conclude that a reasonable jury could conclude that
       the bar's owner and/or employees, having knowledge of criminal acts including:
       two scuffles involving the same individual, the presence of numerous highly
       intoxicated gang members serving themselves, and the presence of one or more
       concealed weapons in possession of intoxicated persons, could conclude that there
       was a specific situation occurring on the premises that would cause a reasonable
       person to recognize a risk of imminent harm. Plaintiff was an identifiable victim
       of that harm because he was within the range of the risk of harm created by the
       perpetrator's conduct. Indeed, plaintiff and his companion were directly involved
       in several of the incidents that escalated to the shooting. Accordingly, we reverse
       the trial court's grant of summary disposition in favor of defendant. [Tillman,
       unpub op at 3 (citations, alteration brackets, and quotation marks omitted).]

        On remand, defendant filed a new motion for summary disposition pursuant to MCR
2.116(C)(10), arguing that plaintiff ultimately has to rely on pure speculation and conjecture in
order to show that but for the failure to contact the police earlier in the evening, plaintiff would
not have been shot and injured.1 Accordingly, defendant contended that plaintiff could not
establish the requisite causal link between the alleged failure to reasonably expedite the
involvement of the police and damages. Defendant additionally argued that “actions that
occurred outside of the bar, after the plaintiff left the bar, constitute[d] intervening/superseding
causes of the plaintiff’s injuries[.]” The trial court agreed with defendant’s causation argument
and granted summary disposition in favor of defendant under MCR 2.116(C)(10).

       This Court reviews de novo a trial court’s decision on a motion for summary disposition,
Loweke v Ann Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162; 809 NW2d 553 (2011),
as well as questions of law in general, Oakland Co Bd of Co Rd Comm’rs v Mich Prop & Cas
Guaranty Ass’n, 456 Mich 590, 610; 575 NW2d 751 (1998). With respect to a motion for
summary disposition brought pursuant to MCR 2.116(C)(10), this Court in Pioneer State Mut Ins
Co v Dells, 301 Mich App 368, 377; 836 NW2d 257 (2013), observed:



1
  In its motion, defendant asserted that “even if the police had been called earlier in the evening,
it is speculation as to whether the gang members would have engaged in gun fire outside of the
bar, down the street, in another neighborhood or whether the plaintiff would have been struck;
for that matter, there is no evidence in this case that the plaintiff was even an intended recipient
of the gun fire.”


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               In general, MCR 2.116(C)(10) provides for summary disposition when
       there is no genuine issue regarding any material fact and the moving party is
       entitled to judgment or partial judgment as a matter of law. A motion brought
       under MCR 2.116(C)(10) tests the factual support for a party's claim. A trial court
       may grant a motion for summary disposition under MCR 2.116(C)(10) if the
       pleadings, affidavits, and other documentary evidence, when viewed in a light
       most favorable to the nonmovant, show that there is no genuine issue with respect
       to any material fact. A genuine issue of material fact exists when the record,
       giving the benefit of reasonable doubt to the opposing party, leaves open an issue
       upon which reasonable minds might differ. The trial court is not permitted to
       assess credibility, weigh the evidence, or resolve factual disputes, and if material
       evidence conflicts, it is not appropriate to grant a motion for summary disposition
       under MCR 2.116(C)(10). A court may only consider substantively admissible
       evidence actually proffered relative to a motion for summary disposition under
       MCR 2.116(C)(10). [Citations and quotation marks omitted.]

       “ ‘In a premises liability action, a plaintiff must prove the elements of negligence: (1) the
defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the
proximate cause of the plaintiff's injury, and (4) the plaintiff suffered damages.’ ” Sanders v
Perfecting Church, 303 Mich App 1, 4; 840 NW2d 401 (2013) (emphasis added), quoting
Benton v Dart Props Inc, 270 Mich App 437, 440; 715 NW2d 335 (2006). Establishing
causation entails proving “two separate elements: (1) cause in fact, and (2) legal cause, also
known as ‘proximate cause.’ ” Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475
(1994) (citation omitted). In Skinner, our Supreme Court explained:

               The cause in fact element generally requires showing that “but for” the
       defendant's actions, the plaintiff's injury would not have occurred. On the other
       hand, legal cause or “proximate cause” normally involves examining the
       foreseeability of consequences, and whether a defendant should be held legally
       responsible for such consequences. A plaintiff must adequately establish cause in
       fact in order for legal cause or “proximate cause” to become a relevant issue. [Id.
       at 163 (citations omitted).]

        Circumstantial evidence and reasonable inferences arising from the evidence can be
utilized to establish causation. Id. at 163-164. But it is not sufficient to proffer “a causation
theory that, while factually supported, is, at best, just as possible as another theory.” Id. at 164.
A “plaintiff must present substantial evidence from which a jury may conclude that more likely
than not, but for the defendant's conduct, the plaintiff's injuries would not have occurred.” Id. at
164-165. “[L]itigants do not have any right to submit an evidentiary record to the jury that
would allow the jury to do nothing more than guess.” Id. at 174. The Skinner Court further
observed that “ ‘[t]he evidence need not negate all other possible causes’ ” and that absolute
certainty relative to causation is not required. Id. at 166, quoting 57A Am Jur 2d, Negligence,
§ 461, p 442. Proximate cause is shown by an act or a failure to act that in its natural and
continuous sequence – unbroken by any unforeseen intervening and superseding cause –
produces an injury that otherwise would not have occurred. Auto-Owners Ins Co v Seils, 310
Mich App 132, 157-158; 871 NW2d 530 (2015). “Normally, the existence of cause in fact is a


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question for the jury to decide, but if there is no issue of material fact, the question may be
decided by the court.” Genna v Jackson, 286 Mich App 413, 418; 781 NW2d 124 (2009).

        Plaintiff testified in his deposition that a short, visibly-intoxicated Caucasian male
(hereafter the “short man”)2 intentionally shoved or pushed one of plaintiff’s friends while on the
dance floor; however, plaintiff was able to diffuse the situation before a fight broke out between
the two men, bringing momentary calm. According to plaintiff, about an hour later, there was an
altercation between plaintiff’s cousin and an African-American male who stood about 6’2” and
was carrying a firearm (hereafter the “tall man”). Plaintiff testified that the “tall man” was the
aggressor, not plaintiff’s cousin. At first, this incident only involved an exchange of words.
However, the two men eventually tried to physically assault each other, but they were held back
by others.3 Once again, with help from plaintiff, the situation was calmed, and plaintiff believed
that everything was “cool.” Plaintiff testified, however, that within a half-hour, drunken and
rowdy bar patrons, many of whom were gang members, were out of control and the tall man had
moved toward the dance floor, acting as if “he [was] ready to do something.” Plaintiff decided
to leave the bar and collected his music, while noticing that many of the bar patrons were
beginning to exit the establishment, including the tall man, who by this time had retrieved his
firearm from a bar employee. Plaintiff testified that just as he stepped outside the bar, he heard a
gunshot and was struck in the arm by a bullet.

         Plaintiff asserted that he had been looking directly at the tall man when he was struck by
the bullet and that he did not believe that the tall man had shot him. Ultimately, plaintiff did not
personally know who had fired the shot that injured him, but he claimed that he was later
informed that the tall man had shot plaintiff’s cousin outside the bar and that the short man from
the first incident had been observed carrying a weapon outside the bar. More specifically, as to
the short man, plaintiff testified, “[M]y brother said he seen that the intoxicated short white guy
that I was talking about, he seen him with a gun, too.” (Emphasis added.) In an affidavit
executed by plaintiff’s brother, he averred: that he had observed a visibly intoxicated individual
in the bar; that this person had been carrying a gun; that the individual was involved in multiple,
increasingly-aggressive arguments and physical altercations as the night unfolded, including the
first incident; that defendant’s employees were aware of this person’s behavior, intoxicated state,
and his possession of a gun; and that he saw this individual shoot plaintiff. Plaintiff’s brother
described this person as “a black man”4 In an affidavit executed by another one of plaintiff’s




2
  Plaintiff testified, “I just know he was short and he wasn’t too skinny. Could have been five
eight at the most. He was white.” (Emphasis added.)
3
 Plaintiff testified that the tall man had pulled his gun from his waistline and given it to the
bouncer before plaintiff’s cousin and the tall man attempted to engage in a physical brawl.
4
  Plaintiff’s brother averred “[t]hat the black man that shot [plaintiff] was the same visibly
intoxicated individual to whom the tavern continued to serve more and more drinks throughout
that night, even after he was visibly intoxicated and had been in various altercations.”


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cousins who was at the bar around the time of the shooting, but whom was not hit by gunfire, he
set forth averments similar to those found in the affidavit submitted by plaintiff’s brother.5

         On this record, we have no evidence that the short man actually shot plaintiff. Further,
the tall man may or may not have been the “black man” referenced in the affidavits, although it
appears that they are one in the same. If they are one in the same, plaintiff was fairly confident
that he had not shot plaintiff, where plaintiff was looking directly at him when he was shot.
Ultimately, however, there was evidence via the affidavits that a visibly-intoxicated, African-
American male, who had been seen in possession of a firearm throughout the night in question
and who had engaged in multiple arguments and physical altercations, shot plaintiff.

         Plaintiff initially questions whether a proximate cause analysis applies in a premises
liability case. Of course, as indicated above, causation is an element that needs to be proven in a
premises liability case. Sanders, 303 Mich App at 4. Indeed, we are unaware of any civil cause
of action that does not have a causation element. Plaintiff next suggests that the prior Tillman
panel had effectively ruled on the issue of causation and the matter of foreseeability in a manner
favorable to plaintiff’s case. Plaintiff misconstrues the earlier opinion, given that the only
element of the tort action that was at issue at that time concerned whether defendant had a duty to
summon the police prior to shots being fired. And foreseeability in that context pertained to
whether plaintiff was a readily identifiable invitee foreseeably endangered earlier in the evening,
such that it triggered a duty owed to plaintiff to expedite the involvement of the police. We are
now addressing the element of causation, not duty. Although the concept of foreseeability plays
a role in analyzing both the duty and proximate cause elements of a tort, Moning v Alfono, 400
Mich 425, 439; 254 NW2d 759 (1977),6 the foreseeability question for purposes of causation
“examin[es] the foreseeability of consequences[] and whether a defendant should be held legally
responsible for such consequences[,]” Skinner, 445 Mich at 163.

       Plaintiff eventually argues, consistent with the law on causation, that the shooting was a
foreseeable consequence of failing to timely call the police. We first examine this Court’s


5
  Plaintiff asserts that the two affidavits showed that the short man who was involved in the first
altercation was intoxicated, possessed a gun, engaged in assaultive behavior, and shot plaintiff.
The problem with this claim is that the two affiants spoke only of a “black man,” while plaintiff
clearly testified that the short man who was embroiled in the night’s first altercation was
Caucasian. It is conceivable that there were different views concerning what constituted the
“first” altercation of the night, although the timeframes alluded to in plaintiff’s deposition
testimony and the affidavits would appear to indicate that all were addressing the same
altercation.
6
  “The questions of duty and proximate cause are interrelated because the question whether there
is the requisite relationship, giving rise to a duty, and the question whether the cause is so
significant and important to be regarded a proximate cause both depend in part on foreseeability
– whether it is foreseeable that the actor’s conduct may create a risk of harm to the victim, and
whether the result of that conduct and intervening causes were foreseeable.” Moning, 400 Mich
at 439.


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opinion in Seils, which has been heavily briefed by the parties, below and on appeal. The Seils
panel simply held that a dramshop action was unsustainable because there was insufficient
evidence showing that the furnishing of alcohol to a person who was visibly intoxicated was the
proximate cause of injuries and a death, which resulted from the intoxicated person committing
intentional assaults and premeditated and deliberate murder. Seils, 310 Mich App at 154-162.
The Court held that, under the facts presented, it was not reasonably foreseeable, nor would the
defendants have been put on notice, that providing the alcohol to the visibly intoxicated
individual would lead that person to commit deliberate, premeditated crimes. Id. at 161. We fail
to see how Seils has any real bearing on this case. We conclude that a shooting is a reasonably
foreseeable consequence of failing to call the police regarding a visibly-intoxicated person who
is engaging in assaultive behavior while in the possession of a firearm and who then discharges
the weapon at another person. Seils is simply not on point and easily distinguishable. Plaintiff is
thus correct that the shooting was a foreseeable consequence, thereby satisfying one of the two
sub-elements that comprise the general element of causation. Plaintiff must also establish the
other sub-element of “cause in fact,” which requires a “but for” showing. Skinner, 445 Mich at
162-163.

         We hold that the documentary evidence was sufficient to create a genuine issue of
material fact regarding whether it was more likely than not that “but for” defendant's failure to
contact the police earlier, plaintiff's gunshot injury would not have occurred. The two affidavits
submitted by plaintiff indicated that a visibly-intoxicated, African-American male, who had been
seen in possession of a firearm throughout the night in question and who had engaged in multiple
arguments and physical altercations, shot plaintiff. Accordingly, there was evidence that the
shooter was engaged in criminal activity earlier in the night, including, for instance, possession
of a weapon while intoxicated, MCL 750.237(1), a 93-day misdemeanor when no one has been
injured, MCL 750.237(2). And under MCL 764.15(1)(d), a police officer, without a warrant,
may arrest a person when the “officer has reasonable cause to believe a misdemeanor punishable
by imprisonment for more than 92 days . . . has been committed and reasonable cause to believe
the person committed it.” To the extent that the shooter had committed an assault or battery, the
shooter would have also been subject to arrest under MCL 750.81(1) (assault and battery; a 93-
day misdemeanor), and MCL 764.15(1)(d). Taking the affidavits into consideration in
conjunction with the laws of our state, there arises a genuine issue of material fact concerning
whether the shooter would have been arrested had defendant called the police following the
initial altercations. And had the shooter been arrested, he would not have had the opportunity to
shoot plaintiff when he did.

        Moreover, there was evidence reflecting that the police had responded very quickly to the
9-1-1 calls, within five minutes, when informed that there were gang members with guns at the
club threatening to shoot. Thus, it is reasonable to infer that there would have been a somewhat
similar swift response by police to an earlier call about an intoxicated individual with a gun who
was having physical altercations with patrons in a gang-saturated environment and, therefore,
that the police would have arrived while the shooter was still on the premises. We appreciate
that there is inherently some unavoidable level of speculation with respect to whether the police
would have actually arrested the shooter, given their discretionary authority. But the evidence
revealing criminal activity by the shooter, which, if true, would have provided police with a valid
basis to arrest the shooter under the law, sufficed to survive a motion for summary disposition, as

                                                -6-
absolute certainty relative to proving causation is not required. Skinner, 445 Mich at 166. It is
also reasonable to infer that the police, had they chosen not to arrest the shooter, would not have
simply allowed the shooter to remain on the premises in a drunken state with a firearm. We
reject defendant’s arguments to the extent that they suggest that plaintiff had to establish that he
would not have been shot at some point in time at whatever location by some gang member aside
from the time, place, and manner relative to which the actual shooting transpired. Instead, the
causation issue turns on whether the actual shooter would have shot plaintiff just outside the club
when he did so that night. And on that issue, there exists a genuine issue of material fact,
considering the two affidavits, plaintiff’s deposition testimony, the police department’s response
time that night, and Michigan penal laws.

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction. Having fully prevailed on appeal, plaintiff is awarded taxable costs under
MCR 7.219.



                                                             /s/ Kathleen Jansen
                                                             /s/ William B. Murphy




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