                         STATE OF MICHIGAN

                         COURT OF APPEALS



IBTIHAJ SHAMMOUT, a Minor, by her Next            UNPUBLISHED
Friend, HANI SHAMMOUT,                            March 29, 2016

            Plaintiff-Appellant,
and

ARWA SHAMMOUT,

            Plaintiff,

v                                                 No. 323532
                                                  Kalamazoo Circuit Court
KALAMAZOO JAYCEE,                                 LC No. 12-000251-NI

            Defendant/Cross-Defendant/Cross-
            Plaintiff-Appellee,

and

DASTOLI & ASSOCIATES, INC. a/k/a UNITED
RENTAL,

            Defendant/Cross-Plaintiff-Appellee,

and

SHAWARMA KING, INC.,

            Defendant,

and

SHAWARMA KING FOUR, INC.,

            Defendant/Cross-Defendant-
            Appellee,

and

EVENTS, INC.,

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               Defendant/Cross-Plaintiff/Cross-
               Defendant-Appellee.


Before: BECKERING, P.J., and GLEICHER and M. J. KELLY, JJ.

GLEICHER, J. (concurring in part and dissenting in part).

       I concur with the majority’s holding that defendant Kalamazoo Jaycee is entitled to
summary disposition and that defendant Shawarma King Four, Inc. is not. I respectfully disagree
with the majority’s resolution of plaintiffs’ claims against Events, Inc. and Dastoli & Associates,
Inc. In my view, the evidence supports that Dastoli negligently breached a duty of care and that
Events owed plaintiffs a duty of care.

                                    I. BACKGROUND FACTS

        A powerful summer storm, packing high winds, swept through a Jaycee-sponsored
festival in Kalamazoo. Shawarma occupied a booth within the festival’s food tent. When the
winds hit the tent, a billowing flap knocked over a table holding Shawarma’s oil fryer and
rotisserie machine. Hot oil splashed on plaintiffs Arwa and Ibtihaj Shammout, severely burning
both. Arwa Shammout suffered an additional injury when the airborne rotisserie struck her back.
Plaintiffs filed this lawsuit against the four defendants alleging different negligence theories as to
each.

        The festival took place on the grounds of the Arcadia Creek Festival Place. Jaycee hired
Events, Inc. to administer the festivities. These parties’ written contract provided that Events
would maintain all of the festival’s accounts, manage the festival personnel, direct the
entertainment, procure the “supplies and services,” hire security, and make “[a]ny other
decisions essential to the operation of the event.”

       Wayne Deering, Events’ manager and “event coordinator,” arranged for the tables used
by the food vendors to be delivered, designated the location of each food booth, directed the
placement of necessary electrical connections to the booths, and required each food vendor to
pay Events a percentage of its take. Deering rented the festival’s tents from Dastoli.

        More than an hour before the storm struck the festival, Deering spoke with meteorologist
Vernon Keith Thompson. Thompson advised Deering that an oncoming storm was “certain[]” to
hit Kalamazoo, bringing with it “an intense burst of wind.” Deering visited the festival site and,
in his words, “informed various folks that we could have some severe weather.” As the storm
drew nearer, Deering advised the festival-goers to retreat into two tents securely anchored to the
ground; the food tent was not one of them. Deering claimed that he tried to evacuate the food
tent, but “some people didn’t leave that tent.” Food vendor Mike Chow heard the severe weather
warning and turned off his cooking equipment.

       Arwa Shammout and her young daughter, Ibtihaj, arrived at the food tent shortly before
the storm struck, on a mission to deliver a dessert to Arwa’s son Kameel, who worked for

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Shawarma. The Shammouts remained in the food tent after the storm warning issued. Several
minutes before the full force of the storm hit the food tent, Deering ordered someone to install a
flap behind the table holding Shawarma’s cooking equipment. Once installed, the canvas flap
(also called a sidewall or curtain) simply hung from the upper portion of the tent; it was not
secured to the ground in any manner. Kameel testified that when the wind hit the flap, the flap
struck the table holding the cooking equipment, sending the fryer and its oil flying.

       I agree with the majority’s conclusion that Jaycee had no involvement in the events
leading to plaintiffs’ injuries, and bears no liability under any tort theory. My analysis differs
from that of the majority regarding Dastoli and Events.

                               II. THE LIABILITY OF DASTOLI

         I respectfully submit that the majority has misunderstood plaintiffs’ negligence claim
against Dastoli. According to the majority, Dastoli “correctly installed the tent flap and . . .
installing the tent flap was not contraindicated by the weather,” and accordingly breached no
duty. Plaintiffs’ negligence claim against Dastoli flows from the timing rather than the method
of the flap’s installation. I agree that Dastoli correctly installed the tent flap, but respectfully
take issue with the majority’s conclusion that as a matter of law, hanging the flap qualified as a
nonnegligent act. According to record testimony, Dastoli or one of his crew hung the tent flap
behind Shawarma’s booth only moments before the storm struck, despite Dastoli’s admitted
awareness that the tent flaps could act “like a sail.” This conduct potentially qualifies as
negligence.

        I concede that the evidence concerning the timing of the tent flap installation conflicts.
Dastoli claims that he hung the flap “a couple of hours maybe” before the storm hit the tent. But
Awad testified that the flap was lowered within minutes before high winds propelled the flap
against the table holding the cooking equipment, and Deering recalled that Dastoli was on the
site “when the problem was happening.”1 Kameel recalled that someone named “Tory” installed
the curtain, and that Tory advised that he worked for “the tent company.”

        Those familiar with tents and storms knew that in windy conditions, the tent flaps posed a
very real danger. Michael Downey, the owner of the security company employed by Deering
during the festival, testified as follows:

             Q. Were you receiving your directions from Wayne [Deering] as far as
       whether to evacuate or whether to tell the vendors to move the tables in?

               A. Correct.


1
  Dastoli and Deering explained that once installed, the flaps have only one position: down.
Unlike window shades, they are not capable of being raised and lowered at will. Viewed in the
light most favorable to plaintiffs, Awad’s testimony supports that Dastoli or one of his
employees installed the flaps (rather than “lower[ing]” them) just before the accident occurred
rather than hours before.


                                                -3-
              Q. Did you have any input in this, or was he just strictly commanding you
       what to do?

               A. He likes to open and tell me what I need to do.

               Q. All right.

               A. I took all directions from him, yes.

             Q. . . . Was it his direction to tell people to move the table in, or was this
       something the two of you had kind of discussed?

               A. The two of us.

               Q. The two of you had input on that?

               A. Yeah.

              Q. And why was it said that, “We should tell people to move the - - to tell
       the vendors to move the tables toward the center”?

               A. So the tables don’t get knocked over by the sides.

        The evidence supports an argument that before hanging the flap behind the Shawarma
booth, Dastoli should have instructed Awad to move the table holding the cooking gear inward
and away from the side of the tent, or to store the cooking gear on the ground (as vendor Chow
had done). Given the weather conditions, the flap was a potentially dangerous addition to the
tent precisely because it could strike the table, or objects on the table, and send things flying.
Hanging it moments before the storm and in a dangerous location could constitute actionable
negligence. I would reverse the trial court’s grant of summary disposition to Dastoli on this
basis.

                                II. THE LIABILITY OF EVENTS

        The majority affirms the trial court’s grant of summary disposition to Events, holding
“there was no evidence that . . . Events took any action that caused the hot-oil fryer to fall” and
injure plaintiffs. Relying on this Court’s opinion in Dykema v Gus Macker Enterprises, Inc, 196
Mich App 6; 492 NW2d 472 (1992), the majority further holds that Events had no duty to warn
of “approaching severe weather.” I respectfully disagree for two reasons. First, Events
voluntarily undertook to monitor the weather conditions and to warn festival patrons of the
approaching storm, thereby assuming a duty of care. In this sense, Gus Macker is wholly
distinguishable. Second, Events ordered the installation of the flap behind the Shawarma booth.
In undertaking these affirmative acts, Events subjected itself to legally cognizable duties of care.

       Viewed in the light most favorable to plaintiffs, the record evidence substantiates that 60
to 90 minutes before the storm arrived, meteorologist Thompson advised Deering to expect that
extremely high winds would hit the festival. In response to this warning, Deering ordered
Downey to notify patrons and vendors of the approaching storm, thereby voluntarily shouldering

                                                -4-
an obligation to warn festival participants that an incoming storm would bring particularly
powerful winds. Deering further testified that when he learned of the storm’s potential, he
personally “went about the site, informed various folks that we could have some severe weather,
and . . . took precautions such as putting objects down because maybe if we have wind, things
that could harm somebody.” Additionally Deering recounted that he “made the decision to tell
that [sic] people go to the two permanently-anchored tents which did survive this perfectly, and
evacuated the middle tent where the problem happened.”

       Thus, Deering recognized that the oncoming storm presented a danger to the festival
patrons. Indeed, he foresaw the specific danger posed by the anticipated high winds—that tent
flaps would billow inward, strike nearby objects, and create dangerous projectiles. Armed with
this knowledge, Deering proactively attempted to protect festival-goers from the foreseeable
hazards. He explained:

               I personally do recall telling one of the vendors who had a glass vase to
       please put that down below, no matter how much wind we have, this could be a
       problem and I didn’t want it to shatter where there are people. But at the early
       stage of, I would say, maybe an hour before the storm came through, we were
       taking those precautions, talking to people about potential problems.

In my view, this testimony substantiates that Events assumed a duty of care.

       In Baker v Arbor Drugs, Inc, 215 Mich App 198, 205; 544 NW2d 727 (1996), this Court
drew on firmly established caselaw to observe that a defendant may face liability when it
undertakes a duty that it otherwise does not bear:

       Courts have imposed a duty where a defendant voluntarily assumed a function
       that it was under no legal obligation to assume. Sponkowski v Ingham Co Rd
       Comm, 152 Mich App 123, 127; 393 NW2d 579 (1986); Rhodes v United Jewish
       Charities of Detroit, 184 Mich App 740, 743; 459 NW2d 44 (1990) [holding ltd
       in Scott v Harper Recreation, Inc, 444 Mich 441; 506 NW2d 857 (1993)]; Terrell
       v LBJ Electronics, 188 Mich App 717, 720; 470 NW2d 98 (1991); Holland v
       Liedel, 197 Mich App 60, 64-65; 494 NW2d 772 (1992); Babula [v Robertson,
       212 Mich App 45, 50-51; 536 NW2d 834 (1995)].[2]

Baker involved the defendant pharmacy’s use of a computer system to “monitor its customers’
medication profiles for adverse drug interactions.” Id. The defendant in Baker advertised that its
computer system “was designed in part to detect harmful drug interactions.” Id. Based on these
facts, this Court concluded that the defendant pharmacy “voluntarily assumed a duty of care
when it implemented” the computer system and advertised its function. Id. at 205-206.


2
  Like other seminal tort principles, perhaps this one was first clearly articlulated by then-Judge
Cardozo: “It is ancient learning that one who assumes to act, even though gratuitously, may
thereby become subject to the duty of acting carefully, if he acts at all.” Glanzer v Shepard, 233
NY 236, 239; 135 NE 275 (1922).


                                                -5-
       In Schanz v New Hampshire Ins Co, 165 Mich App 395, 401-402; 418 NW2d 478 (1988),
this Court adopted and applied the following principles advanced in the Restatement Torts, 2d,
§ 323, p 135:

       Negligent Performance of Undertaking to Render Services

       One who undertakes, gratuitously or for consideration, to render services to
       another which he should recognize is necessary for the protection of the other’s
       person or things, is subject to liability to the other for physical harm resulting
       from his failure to exercise reasonable care to perform his undertaking if

               (a) his failure to exercise such care increases the risk of such harm, or

               (b) the harm is suffered because of the other's reliance on the undertaking.

The plaintiffs in Schanz owned a building insured by the defendant. Id. at 398-399. The
defendant retained Commercial Services, Inc., another company, to inspect the building and to
estimate its replacement cost. Id. at 399. Commercial Services prepared a report containing
several serious errors. Id. The defendant reviewed the report but failed to detect the errors, and
insured the building for an amount well under its actual replacement value. Id. at 399-400. After
the building burned down, the plaintiffs sued the defendant for the difference, and the jury found
in the plaintiffs’ favor. Id. at 400.

        On appeal, the defendant averred that it owed no duty to inspect and appraise the
plaintiffs’ building. Id. The plaintiffs countered that “once defendant undertook to appraise the
building for purposes of informing plaintiffs of the required insurance coverage, defendant
assumed a duty to use reasonable care in establishing the replacement cost value of the building.”
Id. This Court explained, “[t]he law does not impose a duty on insurers to inspect the premises
of their insureds, although such an obligation may be undertaken.” Id. at 401. This Court held
that the trial court properly determined “that defendant owed a duty to plaintiffs to exercise
reasonable care in determining the replacement cost coverage under the policy issued to
plaintiffs” because material questions of fact existed with respect to whether the defendant
undertook the duty described in § 323 of the Restatement. Id. at 401-402, 404-405. See also
Hart v Ludwig, 347 Mich 559, 564; 79 NW2d 895 (1956) (“The law imposes an obligation upon
everyone who attempts to do anything even gratuitously, for another, to exercise some degree of
care and skill in the performance of what he has undertaken, for nonperformance of which duty
an action lies.”) (quotation omitted).

        I draw from this line of cases and the Restatement that Events faces liability in this case
because it undertook a duty of care that it otherwise did not bear: to warn patrons of the storm.
And Events undertook two additional affirmative actions that it was not obligated to perform: it
ordered the installation of the tent flaps that it knew or should have known could smash into
objects during a storm, and it instructed some (but not all) vendors to place movable objects out
of harm’s way. These affirmative acts render Events potentially liable for any failure to perform
its voluntarily-assumed duties with reasonable care.

       Citing Gus Macker, 196 Mich App 6, the majority opines that Events owed no duty “to
warn a spectator of approaching severe weather,” and I agree. But the facts of Gus Macker do
                                                -6-
not correspond with the facts of this case, as in Gus Macker the defendants made no effort
whatsoever to protect the basketball tournament participants from the storm. Events did. The
majority concedes that “[i]f one voluntarily undertakes to perform an act, having no prior
obligation to do so, a duty may arise to perform that act in a nonnegligent manner,” (quotation
marks and citation omitted), but inexplicably fails to apply this noncontroversial legal precept,
finding no evidence that Events “explicitly guaranteed the safety of Arwa or Ibtihaj with regard
to inclement weather or the appliances used by vendors.” Respectfully, this analysis simply does
not apply to these facts, since the duties Events undertook had nothing to do with
“guarantee[ing]” anyone’s safety. Rather, Events voluntarily attempted to protect those present
at the festival from the risks of the severe weather bearing down on the site. It did so through
explicit weather warnings, instructions to stow possible projectiles and to vacate the food tent,
and by hanging the flap. The latter act falls squarely within the reach of Restatement Torts, 2d,
§ 323(b), as it arguably increased the risk of harm “resulting from [a] failure to exercise
reasonable care” in performing the undertaking.

        In summary, having undertaken a responsibility to “batten down the hatches” and make
the festival premises safe, Deering was obliged to exercise reasonable care. I believe that
Events’ voluntary rendering of services to the festival-goers gave rise to a tort duty that survives
Events’ summary disposition motion.

                                        III. SHAWARMA

        I concur with the majority that the open and obvious danger doctrine does not bar
plaintiffs’ claim against Shawarma. In Riddle v McLouth Steel Prods Corp, 440 Mich 85, 96;
485 NW2d 676 (1992), our Supreme Court defined open and obvious hazards as dangers “known
to the invitee” or “so obvious that the invitee might reasonably be expected to discover them.”
That plaintiffs qualify as licensees does not change the definition of an open and obvious danger.
Here, the trier of fact could find that on casual inspection, an ordinary visitor to the food tent
would not comprehend that during a wind storm, a flapping tent curtain could knock over the
table holding the cooking gear. See Novotney v Burger King Corp (On Remand), 198 Mich App
470, 474-475; 499 NW2d 379 (1993). Because the evidence creates a genuine issue of material
fact in this regard, I concur with the majority’s determination that summary disposition was
improperly granted to Shawarma.



                                                             /s/ Elizabeth L. Gleicher




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