Estate of Gregory Sliger v. Steve Bonno ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ESTATE OF GREGORY SLIGER, by SCOTT UNPUBLISHED
SLIGER, Personal Representative, June 16, 2022
Plaintiff-Appellant,
v No. 357405
Chippewa Circuit Court
STEVE BONNO, LC No. 17-014913-NO
Defendant,
and
EDGES LIMITED DIVIDEND HOUSING
ASSOCIATION, LP, doing business as EDGE OF
THE WOODS, and FREEDOMVIEW
MANAGEMENT, LLC,
Defendants-Appellees.
Before: BORRELLO, P.J., and JANSEN and MURRAY, JJ.
PER CURIAM.
In this appeal by right, plaintiff Scott Sliger, as personal representative of the estate of the
decedent Gregory Sliger, challenges the trial court’s ruling granting summary disposition in favor
of defendants Edges Limited Dividend Housing Association, LP, doing business as Edge of the
Woods (EOW), and Freedomview Management, LLC (Freedomview) on plaintiff’s premises
liability claim. For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
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This case arises out of the fatal stabbing of the decedent at Edge of the Woods apartment
complex. On July 31, 2015, Steve Bonno stabbed the decedent over 40 times, and Bonno was
subsequently convicted of first-degree premeditated murder as a result.1
Both Bonno and the decedent were tenants of Edge of the Woods. There was evidence that
the two were involved in a physical altercation on July 30, 2015, during which Bonno’s cat ran
away and Bonno told the decedent that he would “fucking kill” him if the cat was not found. The
police were called and arrived at the apartment complex. The responding officer spoke to the
decedent, who indicated that he did not want to pursue charges against Bonno. Bonno was never
located that night, and the police officers left. The following night, Bonno stabbed the decedent
in the second-floor lobby of the apartment building. Multiple witnesses called 911 as the attack
was taking place. When the police arrived, the decedent was not breathing and Bonno had fled.
Plaintiff initiated this civil action, asserting a premises liability claim and breach-of-
contract claim2 against defendants EOW and Freedomview3 as the owners and operators of the
apartment complex. Defendants sought summary disposition pursuant to MCR 2.116(C)(10). The
trial court granted defendants’ motion regarding plaintiff’s premises liability claim and denied the
motion regarding plaintiff’s breach-of-contract claim. The trial court later entered a stipulated
order dismissing the breach-of-contract claim. This appeal followed.
II. JURISDICTION
As an initial matter, we must address defendants’ argument that this Court does not have
jurisdiction over this appeal. Defendants contend that this Court is without jurisdiction because
the final order from which plaintiff appeals is the stipulated order dismissing the breach-of-contract
claim against defendants and dismissing Bonno as a party from this case, and this order did not
specifically preserve plaintiff’s right to appeal the trial court’s earlier ruling granting summary
disposition in defendants’ favor on plaintiff’s premises-liability claim.
“Whether this Court has jurisdiction to hear an appeal is always within the scope of this
Court’s review.” Chen v Wayne State Univ, 284 Mich App 172, 191; 771 NW2d 820 (2009). We
review this question de novo as an issue of law. Id.1
People v Bonno, unpublished per curiam opinion of the Court of Appeals, issued February 1,
2018 (Docket No. 335830), pp 1-2.
2
Plaintiff’s complaint contained an additional claim of battery against Bonno, which was
dismissed by the trial court in a stipulated order prior to this appeal. Bonno is not a party to this
appeal, and the battery claim against him is not at issue in this appeal.
3
Because Bonno is not a party to this appeal, we will refer to EOW and Freedomview collectively
as “defendants.”
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Here, the sole focus of plaintiff’s appeal is a challenge to the trial court’s order granting
summary disposition in favor of defendants on plaintiff’s premises liability claim.4 This ruling
was made in the trial court’s December 30, 2019 order granting in part and denying in part
defendants’ motion for summary disposition. In this order, the trial court granted defendants’
summary disposition motion as to plaintiff’s premises-liability claim in Count I of the complaint
and dismissed this count with prejudice. However, in the same order, the trial court also denied
defendants’ summary disposition motion with respect to Count II (breach of contract) and
indicated that the order had no effect on Count III (battery). Those claims remained unresolved at
that point. Accordingly, this order was not a final order appealable by right. MCR 7.203(A); MCR
7.202(6)(a); MCR 2.604.
On May 14, 2021, the trial court entered a stipulated order dismissing Bono from the case
with prejudice and dismissing the breach-of-contract claim against defendants with prejudice,
which had been the “sole remaining cause of action.” The order indicated that it was a final order
disposing of all the claims. See MCR 7.202(6)(a)(i).
Defendants argue that plaintiff cannot appeal from this May 14, 2021 order because it did
not specifically reserve plaintiff’s right to appeal. Defendants are correct that this Court has stated
that there is an appeal of right “available from a consent judgment in which a party has reserved
the right to appeal a trial court ruling” but that “unless an issue encompassed within the consent
judgment has been specifically preserved for appeal, the general rule is that a party cannot stipulate
a matter and then argue on appeal that the resulting action was error.” Begin v Mich Bell Tel Co,
284 Mich App 581, 585; 773 NW2d 271 (2009), overruled in part on other grounds by Admire v
Auto-Owners Ins Co, 494 Mich 10, 34; 831 NW2d 849 (2013) (quotation marks and citation
omitted).
Here, however, plaintiff’s appeal does not include a challenge to any of the stipulated
matters contained within the May 14, 2021 order but instead focuses only a prior ruling in an order
that was not a final order or judgment. As the “first judgment or order that disposes of all the
claims and adjudicates the rights and liabilities of all the parties,” this was a final order, MCR
7.202(6)(a)(i), appealable by right, MCR 7.203(A)(1).5 Nonetheless, because plaintiff’s appellate
arguments are not directed at any issue encompassed within the consent judgment, the rule in Begin
does not bar this Court’s jurisdiction. Begin, 284 Mich App at 585. “[A] party claiming an appeal
4
We recognize that plaintiff also claims on appeal that the trial court erred by not addressing
plaintiff’s alleged theory of ordinary negligence. However, as explained below, premises liability
is a species of negligence and, although we are not bound by a party’s choice of labels in the
complaint, plaintiff labeled Count I as “premises liability” and did not include a separate count
labeled “ordinary negligence.” We therefore understand plaintiff’s argument to be that the trial
court should have also viewed this count as an attempt to assert an ordinary negligence claim, and
we thus consider this argument to appropriately be subsumed within plaintiff’s challenge to the
trial court’s ruling dismissing the premises liability count. We will address both theories in our
analysis below.
5
We note that defendants do not argue that the December 30, 2019 order, or any other order entered
before May 14, 2021 somehow satisfied the definition in MCR 7.202(6)(a)(i).
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of right from a final order is free to raise issues on appeal related to prior orders.” Green v
Ziegelman, 282 Mich App 292, 301 n 6; 767 NW2d 660 (2009) (quotation marks and citation
omitted; alteration in original). The summary disposition ruling challenged by plaintiff and
contained within the prior December 2019 order resulted in the dismissal with prejudice of
plaintiff’s premises-liability claim against defendants, and plaintiff has thereby demonstrated a
concrete injury arising from the actions of the trial court such that plaintiff is an “aggrieved party”
for purposes of MCR 7.203(A). Tevis v Amex Assurance Co, 283 Mich App 76, 79-80; 770 NW2d
16 (2009). For these reasons, this Court has jurisdiction over this appeal.
III. SUMMARY DISPOSITION
We now turn to the merits of plaintiff’s challenge to the trial court’s summary disposition
ruling dismissing plaintiff’s premises-liability claim.
A. STANDARD OF REVIEW
“This Court reviews de novo a trial court’s decision whether to grant summary
disposition.” Chen, 284 Mich App at 200. Under MCR 2.116(C)(10), “summary disposition is
proper if [e]xcept as to the amount of damages, there is no genuine issue as to any material fact,
and the moving party is entitled to judgment or partial judgment as a matter of law.” To make this
determination, “a trial court must consider all evidence submitted by the parties in the light most
favorable to the party opposing the motion.” El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152,
160; 934 NW2d 665 (2019). “A genuine issue of material fact exists when the record leaves open
an issue upon which reasonable minds might differ.” Id. (quotation marks and citation omitted).
In a negligence action, the question whether a defendant owes a duty to a particular plaintiff
is reviewed de novo as an issue of law. Bailey v Schaaf, 494 Mich 595, 603; 835 NW2d 413
(2013). “Only after finding that a duty exists may the factfinder determine whether, in light of the
particular facts of the case, there was a breach of the duty.” Id. (quotation marks and citation
omitted).
B. ANALYSIS
We first address plaintiff’s argument that the trial court erred in granting summary
disposition on Count I of plaintiff’s complaint, labeled “premises liability,” because there was a
question of fact regarding whether defendants violated their duty as landlord to protect tenants,
including plaintiff’s decedent, from foreseeable criminal acts of third parties in common areas.
There is a distinction between premises liability claims and ordinary negligence claims,
with the former being applicable to situations where the injury was allegedly caused by a
dangerous condition on land. Buhalis v Trinity Continuing Care Servs, 296 Mich App 685, 692;
822 NW2d 254 (2012). In a premises liability claim, “liability arises solely from the defendant’s
duty as an owner, possessor, or occupier of land.” Id. Nonetheless, as with any negligence claim,
a premises liability action still requires the plaintiff to prove the elements of duty, breach,
causation, and damages. Mouzon v Achievable Visions, 308 Mich App 415, 418; 864 NW2d 606
(2014).
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Because there is a “special relationship” between a landlord and its tenants, a landlord owes
a duty of care to its tenants and their invitees to keep common areas under the landlord’s control
reasonably safe from physical hazards. Bailey, 494 Mich at 604-606. Thus, “a landlord may be
held liable for an unreasonable risk of harm caused by a dangerous condition in the areas of
common use retained in his control such as lobbies, hallways, stairways and elevators.” Williams
v Cunningham Drug Stores, Inc, 429 Mich 495, 499; 418 NW2d 381 (1988) (citation omitted).
This duty, however, is “not absolute.” Id. at 500. Furthermore, although the general rule is that
“the court decides the questions of duty and the general standard of care” while “the jury
determines what constitutes reasonable care under the circumstances,” Williams, 429 Mich at 500,
our Supreme Court has held that the court “determines what constitutes reasonable care” under the
circumstances in situations involving “overriding public policy concerns” such as are involved in
considering the nature of a merchant or landlord’s duty to protect tenants and invitees from the
criminal acts of third parties, id. at 500-501; Bailey, 494 Mich at 603 (quotation marks and citations
omitted).
As specifically applicable to the factual circumstances of the instant case, our Supreme
Court has held that “a landlord’s duty regarding criminal acts of third parties is limited to . . . a
duty to respond by reasonably expediting police involvement where it is given notice of a specific
situation occur[ring] on the premises that would cause a reasonable person to recognize a risk of
imminent harm to an identifiable invitee.” Bailey, 494 Mich at 614 (quotation marks and citation
omitted; alteration in original). The landlord’s duty does not include anticipating or otherwise
preventing the criminal acts of third parties. Id. at 613-614.
Like a merchant, a landlord can presume that tenants and their invitees will
obey the criminal law. Because of the unpredictability and irrationality of criminal
activity, [t]his 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 [tenant or] invitee. Only when given notice of such a situation is
a duty imposed on a landlord. Notice is critical to determination whether a
landlord’s duty is triggered; without notice that alerts the landlord to a risk of
imminent harm, it may continue to presume that individuals on the premises will
not violate the criminal law. [Id. at 615 (quotation marks and citations omitted;
alterations in original).]
Here, plaintiff argues that because of the incident between Bonno and the decedent on the
night before Bonno stabbed the decedent, and a history known to EOW residents of “tension and
conflict” between Bonno and the decedent “dating back at least to 2014,” defendants should have
involved the police before Bonno physically attacked and stabbed the decedent on July 31, 2015.
However, imposing such a duty would be akin to requiring defendants to anticipate Bonno’s
criminal acts before he actually committed them and to preemptively prevent Bonno’s criminal
conduct. Defendants had no such duty. Bailey, 494 Mich at 613-615.
Plaintiff does not cite any record evidence that defendants had “notice of a specific
situation occur[ring] on the premises that would cause a reasonable person to recognize a risk of
imminent harm” to plaintiff’s decedent and failed to respond by reasonably expediting police
involvement. Bailey, 494 Mich at 614 (quotation marks and citation omitted; alteration in original;
emphasis added). The police had responded to the premises for the previous night’s altercation
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that included Bonno’s alleged threat to the decedent, and this incident had concluded that night
with the decedent informing the police that he did not wish to pursue charges and the police
apparently determining that it was safe to leave the premises.
There was no evidence of an ongoing situation of physical violence between Bonno and
the decedent that was occurring on the premises between the altercation from the previous night
and Bonno’s attack during which he stabbed the decedent. In light of these circumstances, the
prior night’s incident would not cause a reasonable person to recognize an imminent risk of harm
to plaintiff’s decedent. Id. Even assuming defendants were aware of the general animosity and
conflicts between Bonno and the decedent, that does not constitute notice of a specific situation of
imminent harm requiring defendants to respond by expediting police involvement. Id. With
respect to a merchant or landlord’s duty to reasonably respond to criminal acts occurring on the
premises, “[i]t is only a present situation on the premises, not any past incidents, that creates a duty
to respond.” MacDonald v PKT, Inc, 464 Mich 322, 335-336; 628 NW2d 33 (2001).6
Under these circumstances, there is no question of fact that there was no foreseeable danger
of harm to the decedent that would have triggered defendants’ duty to expedite involvement of the
police at any earlier time on July 31, 2015 before the stabbing occurred. See id. at 338 (“Whether
an invitee is readily identifiable as being foreseeably endangered is a question for the factfinder if
reasonable minds could differ on this point.”). Because defendants did not have the necessary
notice, plaintiff has failed to establish that defendants had a duty that was triggered under these
circumstances. Bailey, 494 Mich at 614-615. Moreover, even assuming that there was a question
of fact regarding whether defendants’ duty was triggered, this duty was discharged because
multiple witnesses called 911 as the July 31 attack was happening—presumably before defendants
were even aware of it—and police responded to the scene, making unnecessary any further
response from defendants. MacDonald, 464 Mich at 339-340. The trial court did not err by
granting summary disposition to defendants on plaintiff’s premises liability claim.
Finally, plaintiff argues that the trial court erred by failing to consider plaintiff’s theory of
ordinary negligence and treating the claim solely as one of premises liability. Plaintiff argues that
the decedent’s injuries were the result of defendants’ conduct, not a condition on land. More
specifically, plaintiff contends that defendants “assumed a duty to each resident, including the
Plaintiff’s decedent, to conduct background checks and prohibit known felons from residing in the
residence, in accordance with their own explicit policies.” Plaintiff further argues that
“[d]efendants violated their assumed duty when they knowingly failed to reject or evict Bonno as
a tenant despite knowledge of a recent conviction where he pled guilty to a felonius [sic] ‘assault
with intent to do great bodily harm less than murder or by strangulation.’ ”
Plaintiff’s complaint included a count of premises liability and did not include a count
labeled ordinary negligence. However, “[c]ourts are not bound by the labels that parties attach to
their claims.” Buhalis, 296 Mich App at 691. “[T]he gravamen of an action is determined by
reading the complaint as a whole, and by looking beyond mere procedural labels to determine the
6
Although MacDonald phrased the rule in terms of merchants or premises owners generally, see
MacDonald, 464 Mich at 334-335, a landlord’s duty with respect to the criminal acts of third
parties is identical, Bailey, 494 Mich at 614.
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exact nature of the claim.” Id. at 691-692 (quotation marks and citations omitted). “An action in
premises liability . . . does not preclude a separate claim grounded on an independent theory of
liability based on the defendant’s conduct . . . .” Jahnke v Allen, 308 Mich App 472, 475; 865
NW2d 49 (2014) (quotation marks and citation omitted; second ellipsis in original).
Assuming that plaintiff’s complaint also sufficiently asserted a claim for ordinary
negligence in addition to premises liability, plaintiff’s ordinary negligence theory essentially states
that defendant’s efforts to deter criminal acts by performing background checks on potential
tenants were performed negligently and failed to prevent Bonno’s criminal act against the
decedent. However, in this context, the landlord’s “undertaking of measures to deter the crimes
of others does not create a duty to eliminate those crimes.” Bailey, 494 Mich at 612, 614, 615 n
57. If this were not the rule, there would be a “a disincentive for security measures.” Id. at 612.
Furthermore, it is evident that plaintiff’s theory of ordinary negligence is more akin to an assertion
that defendants created the dangerous condition, which is insufficient to “transform” a premises
liability claim into an ordinary negligence claim. Jahnke, 308 Mich App at 475 (quotation marks
and citation omitted). Accordingly, plaintiff also has not shown that the trial court erred in granting
summary disposition to defendants by failing to consider his claim as one of ordinary negligence.
Affirmed. No costs are awarded. MCR 7.219.
/s/ Stephen L. Borrello
/s/ Kathleen Jansen
/s/ Christopher M. Murray
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