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Court Reinforces Principle That Landowners Generally Have no Duty to Prevent Criminal Acts
A party cannot overcome insufficient deposition testimony through a contradictory affidavit.
A landowner generally does not have an obligation to anticipate or prevent criminal acts perpetrated against invitees on his or her property. Instead, a landowner may reasonably proceed upon the assumption that others will obey the law.
Sounds simple enough, right? Not quite.
If a specific situation occurs that would cause a reasonable person to recognize a risk of imminent harm to an identifiable invitee, then, a landowner has a duty to act. A landlord may fulfill this duty by promptly alerting the police.
In Emanuel v Days Inn, Docket No. 339491, the Michigan Court of Appeals considered this specific issue. The appellate court considered whether the plaintiff produced enough evidence to show the defendant had sufficient notice of imminent harm.
The plaintiff was a Michigan attorney. One night, he received a call from his girlfriend to pick her up from a hotel where she was using drugs with a friend. The plaintiff arrived at the hotel, alone, outside of the hotel room.
At some point during the conversation, the friend yelled from inside the room that he was going to “kick [the plaintiff’s] ass.” Attempting to diffuse the situation, the plaintiff’s girlfriend told him to wait for her in the lobby.
The plaintiff later testified in his deposition that he walked down to the lobby and told the receptionist that his girlfriend and her friend were using drugs in the room and to call the police, or at least to call up to the room, and threaten them, and that would have gotten them out of there in a nanosecond.
The plaintiff did not testify that he told the receptionist he was threatened with physical assault.
The receptionist declined to call the police. After coming down to the lobby a second time, the plaintiff was confronted by the friend, who asked the plaintiff to pay for the hotel room. When the plaintiff refused, the friend threw a drink in his face, knocked him to the ground, kicking and punching him numerous times. Only then did the receptionist call the police, but the friend had fled the scene.
The plaintiff filed suit claiming the hotel breached its duty of care. The hotel filed a motion for summary disposition. The plaintiff responded to the motion, by attaching a sworn affidavit, clarifying his deposition testimony. The affidavit stated that he had told the hotel receptionist that the friend threatened to harm him if he did not pay for the hotel room, and that is why he urged the receptionist to call the police.
Additionally, the plaintiff’s affidavit stated he waited 10 to 15 minutes in the lobby before his girlfriend and her friend walked down and he was assaulted. But, the plaintiff had not testified to the fact that the friend physically threatened him or that he informed the receptionist of those threats. The trial court found that the plaintiff’s affidavit contradicted his deposition testimony and granted defendant’s motion for summary disposition.
The appellate court affirmed the trial court for two reasons. First, the appellate court held that a witness is bound by his deposition testimony, and it cannot be contradicted by an affidavit in an attempt to defeat a motion for summary disposition. The plaintiff went beyond clarifying his deposition testimony; he altered it.
Second, the appellate court found that even if the affidavit was considered, summary disposition was still proper. According to the affidavit, the plaintiff asked the receptionist to call the police because the friend threatened him. However, the fact remained that the friend was upstairs at that time and did not pose a risk of imminent harm. The plaintiff’s affidavit also said that he waited in the lobby for 10 to 15 minutes—after asking the receptionist to call the police.
This evidence showed that the receptionist responded reasonably by waiting until the friend posed an imminent threat of harm to plaintiff. Before that, the receptionist had no duty to act. Her duty arose once there was knowledge of a specific situation occurring on the premises that would cause a reasonable person to recognize a risk of imminent harm to an identifiable invitee. The specific situation was the actual assault on the plaintiff.
In sum, landowners do not have an obligation to prevent criminal acts unless a specific situation occurs that would cause a reasonable person to recognize a risk of imminent harm.Tags: Premises Liability, Retail Liability