                           STATE OF MICHIGAN

                            COURT OF APPEALS



JOHN SYKES,                                                          UNPUBLISHED
                                                                     October 25, 2018
               Plaintiff-Appellant,

v                                                                    No. 338476
                                                                     Wayne Circuit Court
PHOENIX PROMOTIONS, LLC, doing business                              LC No. 16-006474-NO
as BLACKBERRY BAR & GRILL, and CORTEZ
SMITH,

               Defendants-Appellees.


Before: MURRAY, C.J., and BORRELLO and RONAYNE KRAUSE, JJ.

MURRAY, C.J. (concurring).

       I agree with the majority opinion’s conclusion to reverse the trial court’s order granting
defendants’ motion for summary disposition, but write separately to briefly explain why a
genuine issue of material fact exists despite the limited circumstances under which the
merchant’s duty can arise.

        It is a general rule that merchants do not have a duty to protect invitees from an
unreasonable risk that is unforeseeable. MacDonald v PKT, Inc, 464 Mich 322, 332; 628 NW2d
33 (2001). Instead, a duty arises only on behalf of those specifically identifiable invitees that are
“ ‘readily identifiable as [being] foreseeably endangered.’ ” Id. (quotation marks and citations
omitted; alteration in original).

        When it comes to criminal acts committed on the premises, it is likewise well-settled that
a “merchant can assume that patrons will obey the criminal law.” Id. at 335. According to the
MacDonald Court: “This assumption should continue until a specific situation occurs on the
premises that would cause a reasonable person to recognize a risk of imminent harm to an
identifiable invitee. It is only a present situation on the premises, not any past incidents, that
creates a duty to respond.” Id. (emphasis added). It is important to recognize that the duty
imposed upon merchants “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.” Id. at 339 (emphasis
added). And it bears repeating that “a merchant has no obligation to anticipate the criminal acts
of third parties.” Id.



                                                 1
        The trial court concluded that no genuine issue of fact existed, and that no duty could be
imposed upon defendants, because there was not an ongoing situation that a reasonable person
would recognize as a risk of imminent harm to plaintiff. This conclusion was based upon
plaintiff’s testimony that after the altercation ended, he and the unidentified shooter remained on
the premises for approximately 30 minutes, and plaintiff felt the situation had ended.
Additionally, plaintiff admittedly remained on the premises for an additional 30 minutes or so
until leaving, which was when he was shot.

        But the risk of imminent harm did exist at the time defendants’ employee1 was informed
that there was an altercation, and that the unidentified individual had a gun. At that point, when
defendants were informed of the situation, a reasonable juror could conclude that there was an
ongoing situation that one would recognize as creating a reasonable risk of harm to plaintiff, and
that defendants should have acted upon this duty. The criminal act arose from a situation that
occurred on the premises, and there is at least some evidence defendants were made aware of the
situation and the potential for imminent harm, i.e., that there was an altercation and one of the
participants possessed a gun. Caselaw supports this conclusion, see MacDonald, 464 Mich at
334, and evidence that the situation had temporarily calmed does not sufficiently detract from the
fact that there was an ongoing situation at the time defendants were notified of the altercation and
the gun. For this reason, the trial court erred in granting defendants’ motion for summary
disposition on this issue.



                                                             /s/ Christopher M. Murray




1
  Defendants makes much out of the fact that their employees testified that no bouncers were
employed or utilized by the bar that evening. However, the use of the term “bouncers” came
from defense counsel’s question, not plaintiff. In other words, plaintiff did not independently
testify that a bouncer was informed about the gun, but defense counsel asked whether a bouncer
was informed.

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