Sarah Zeller v. Grand Trunk Western Railroad Company ( 2020 )

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
SARAH ZELLER and SCOTT ZELLER, UNPUBLISHED
November 19, 2020
Plaintiffs-Appellants,
v No. 348715
St. Clair Circuit Court
GRAND TRUNK WESTERN RAILROAD LC No. 2016-000520-NO
COMPANY,
Defendant-Appellee,
and
CANADIAN NATIONAL RAILWAY COMPANY,
ILLINOIS CENTRAL RAILROAD COMPANY,
CN CUSTOMS BROKERAGE SERVICES (USA),
INC., and STELLAR DISTRIBUTION SERVICES,
INC.,
Defendants.
Before: GLEICHER, P.J., and K. F. KELLY and SHAPIRO, JJ.
PER CURIAM.
Plaintiffs appeal as of right the trial court’s order granting summary disposition under MCR
2.116(C)(10) to defendant Grand Trunk Western Railroad Company (“Grand Trunk”). Although
the trial court erred in concluding that plaintiff Sarah Zeller lacked personal knowledge to support
her claims, the trial court appropriately granted summary disposition on alternate grounds.
Accordingly, finding no error that warrants reversal, we affirm.
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I. BASIC FACTS AND PROCEDURAL HISTORY
Plaintiff1 worked for defendant CN Customs Brokerage Services (USA), Inc., at the
railyard of defendant Grand Trunk in Port Huron, Michigan. Because plaintiff worked in a trailer
that had no bathroom facilities, she was required to enter a separate building owned by Grand
Trunk when necessary to use the restroom. Plaintiff alleged that in May 2012, she was accosted
by an unidentified male when exiting the restroom. Although she mentioned the incident to some
coworkers, she did not formally report the incident until September 2012. Plaintiff initially
reported that a man, whom she was unable to identify, was lurking outside the restroom door and
made a sexually explicit comment to her when she left the restroom. Grand Trunk’s Human
Resources Department investigated plaintiff’s complaint in accordance with its sexual harassment
policies, but concluded on October 1, 2012, that it was unable to substantiate a violation of its
policies because it could not find any witnesses or persons responsible.
On October 24, 2012, plaintiff reported discovering an offensive note that was left on her
vehicle and finding an open condom near the vehicle. Grand Trunk has its own police force, the
CN Police, which conducted an investigation of the matter. Plaintiff also reported receiving
additional notes in the weeks that followed, but no charges were filed, primarily because plaintiff
was unable to identify the person or persons responsible and the CN Police’s investigation failed
to identify a suspect.
Plaintiff stopped working in November 2012 and left her employment in 2013. Afterward,
she received therapy and mental health services, which she claims enabled her to recover some of
her memories and recall more details about the incidents at the railyard. In particular, plaintiff
recalled that the May 2012 restroom incident involved an actual sexual assault and also recalled
the identity of that perpetrator. Plaintiffs filed this action against Grand Trunk, seeking to hold it
liable for the criminal activity that plaintiff experienced on its property and to hold it vicariously
liable for the alleged negligence of the CN Police in its investigation of that activity.
The trial court granted Grand Trunk’s motion for summary disposition primarily because
it concluded that plaintiff, who had been diagnosed as having multiple personality disorder and
claimed that her recall of some of the events was based in part on flashbacks and information
obtained through one of her alter egos, did not have personal knowledge of the facts supporting
her claims. The court also concluded that plaintiff could not impose liability on Grand Trunk for
the CN Police’s alleged negligence in its investigation of her allegations. Accordingly, the court
dismissed plaintiffs’ claims.
II. STANDARD OF REVIEW
A trial court’s ruling on a motion for summary disposition is reviewed de novo. Bennett v
Russell, 322 Mich. App. 638, 642; 913 NW2d 364 (2018). Summary disposition is appropriate
1
The claims by plaintiff Sarah Zeller arise from alleged criminal activity and stalking that occurred
during her employment and challenged the security of the work environment and the police
investigation. The claim by plaintiff Scott Zeller for loss of consortium is derivative of her claims.
Accordingly, we use the singular term “plaintiff” to refer to plaintiff Sarah Zeller.
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pursuant to MCR 2.116(C)(10) where 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.” MCR 2.116(C)(10).
When reviewing a motion for summary disposition challenged under MCR 2.116(C)(10), the court
considers the affidavits, pleadings, depositions, admissions, and other admissible documentary
evidence then filed in the action or submitted by the parties. MCR 2.116(G)(4), (G)(5); Puetz v
Spectrum Health Hosp, 324 Mich. App. 51, 68; 919 NW2d 439 (2018). The trial court may not
render factual findings on disputed factual issues when resolving the dispositive motion and may
not make credibility determinations. Id. at 68-69.
II. PLAINTIFF’S PERSONAL KNOWLEDGE AND COMPETENCY
Plaintiff first alleges that the trial court erred in concluding that Grand Trunk was entitled
to summary disposition because plaintiff lacked personal knowledge in support of her claims. We
agree.
As the trial court observed, plaintiff’s initial accounts of the May 2012 restroom incident
did not include many of the facts that she revealed years later, which she claimed she was able to
recall through flashbacks and therapy, including whether the incident involved an actual sexual
assault and the identity of the perpetrator. The trial court concluded that this transition in
recollection effectively violated MRE 602 which requires the witness have personal knowledge to
testify. However, lapses in memories do not establish a lack of personal knowledge to support a
claim. As explained in 98 CJS, Witnesses, § 97, p 111:
Since a witness must have personal knowledge of the facts to which he or
she testifies, it necessarily follows that the witness must have the capacity to both
perceive and recollect those facts. A witness is not incompetent to testify, however,
merely because the witness’s memory of the subject matter of the testimony is less
than complete. A witness may testify as to facts within his or her knowledge
although the witness’s recollection is vague or imperfect, and the witness is
unwilling to commit absolutely to the truth of what he or she says or is unable to
remember the entire transaction. The rationale is that memory lapses reflect more
upon the witness’s credibility than on his or her capacities.
Generally, a witness is permitted to testify as to his or her present
recollection of a matter even if the witness has made a prior inconsistent statement
concerning it.
Indeed, in the context of the admission of expert testimony, gaps and weaknesses in the
expertise presents a subject for cross-examination, and addresses the weight to be given the
testimony, not its admissibility. See Wischmeyer v Schanz, 449 Mich. 469, 480; 536 NW2d 760
(1995). Further, to the extent that plaintiff had lapses in memory regarding some events, other
witnesses or evidence could have been used to support her claims. The foundation for plaintiffs’
claims involved the May 2012 restroom incident, as well as the stalking conduct that plaintiff
experienced in 2012. However, plaintiffs’ claims were broader than these events. They also
encompassed the extent to which Grand Trunk could be held responsible for protecting workers
on its premises and the adequacy of its responses to plaintiff’s reports of misconduct. Thus,
plaintiffs’ claims were not merely contingent on the degree of any assault allegedly committed
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upon her, but also depended on facts showing what information was known to Grand Trunk and
how it responded to that information. Although the trial court recognized that plaintiff’s accounts
of the underlying incidents had changed and evolved over time, it did not analyze the extent to
which all of plaintiffs’ claims were dependent on plaintiff’s testimony. Plaintiffs’ claims depended
in large part on Grand Trunk’s knowledge of what was occurring on its premises and its responses
to reported misconduct. There was evidence that plaintiff reported the various matters to other
coworkers and her supervisor, that plaintiff’s reports of stalking conduct was supported by
preserved written notes and other physical evidence, that some of this physical evidence was
submitted for forensic analysis, that the reported matters were investigated by the Human
Resources Department and the CN Police, and reports of these investigations were generated. This
evidence was admissible to factually support the occurrences of the events that formed the basis
for plaintiffs’ claims, as well as to demonstrate what information was provided to Grand Trunk
and how Grand Trunk responded and acted on that information.2
In sum, the trial court erred by granting Grand Trunk summary disposition on the basis that
plaintiff lacked personal knowledge of the underlying events. However, as explained below, we
conclude that Grand Trunk was entitled to summary disposition on alternative grounds. “This
Court will not reverse a trial court’s order of summary disposition when the right result was
reached for the wrong reason.” Forest Hills Coop v Ann Arbor, 305 Mich. App. 572, 615; 854
NW2d 172 (2014).
II. GRAND TRUNK’S ALTERNATIVE GROUNDS FOR SUMMARY DISPOSITION
Plaintiffs contend that the trial court erred in granting summary disposition of her claims
of negligence, vicarious liability, and nuisance. We disagree.
Specifically, plaintiffs alleged that Grand Trunk had a legal duty to provide a safe premises
for its business invitees, which included a duty to reasonably expedite the involvement of law
enforcement to respond to specific, ongoing aggravated stalking on its premises directed at
plaintiff. Plaintiffs also alleged that Grand Trunk’s private police force was negligent in
responding to and investigating the assault and stalking incidents involving plaintiff, and that
Grand Trunk is vicariously liable for the conduct of its police force. However, Grand Trunk was
entitled to summary disposition because it cannot be held liable for negligence or nuisance for the
third-party criminal conduct committed upon plaintiff.
A. NEGLIGENCE
Plaintiff relies on Bailey v Schaaf, 494 Mich. 595, 599; 835 NW2d 413 (2013), in which
our Supreme Court, citing its decision in MacDonald v PKT, Inc, 464 Mich. 322, 338; 628 NW2d
2
The trial court also erred to the extent that it questioned plaintiff’s mental competency when
reaching the issue of personal knowledge. The trial court cited individual notes during a therapy
session analyzing whether plaintiff experienced a flashback of an event or a hallucination.
Irrespective of individual sessions and progress notes, plaintiff was treated by multiple mental
health professionals, and there is no indication that these individuals deemed plaintiff mentally
incompetent to testify.
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33 (2001), held that landlords, like merchants, have a limited duty to protect against the criminal
acts of third parties. The Court stated:
Michigan law imposes a duty on a merchant 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. In such a situation, the merchant’s duty to that invitee is limited
to reasonably expediting involvement of the police. Recognizing that landlords and
merchants exert similar degrees of control over their premises, and cognizant of our
historical and consistent treatment of their duty to remedy physical defects, today
we make clear that landlords owe the same limited duty of care when put on notice
of criminal acts that pose a risk of imminent and foreseeable harm to an identifiable
tenant or invitee—a duty to reasonably expedite police involvement. [Bailey, 494
Mich. at 599-600.]
Plaintiffs claim that Grand Trunk had notice of the assaultive and stalking activity by one
or more persons against plaintiff on its premises. Viewed in the light most favorable to plaintiffs,
the evidence showed that Grand Trunk had notice that plaintiff was a target of harassment or
stalking activity on its premises, giving rise to a limited duty by Grand Trunk to respond to the
criminal acts of third parties on its premises. The scope of this duty is explained in Bailey, 494
Mich. at 616-617, in which the Court stated:
If and when a landlord’s duty is triggered, a reasonable response by the
landlord is required. Typically, whether an actor proceeded reasonably is a
question for the fact-finder. But, just as in MacDonald and Williams [v
Cunningham Drug Stores, Inc, 429 Mich. 495, 501; 418 NW2d 381], we determine
as a matter of law what constitutes reasonable care when a landlord is confronted
with imminent criminal acts occurring on the premises under the landlord’s control.
And, like MacDonald, we make clear that as a matter of law, the duty to respond
requires only that a landlord make reasonable efforts to expedite police
involvement. Landlords, like merchants, have a low degree of control over the
criminal acts of others. Our conclusion today does not expand a landlord’s duty
concerning third-party criminal acts; requiring more of a landlord than taking
reasonable efforts to expediate police involvement would essentially result in the
duty to provide police protection, a concept this Court has repeatedly rejected.
Consistent with our recognition that the duty to provide police protection is vested
with the government, and given the unpredictability of specific acts of crime, we
decline to impose any greater obligation on a landlord. [Footnotes omitted.]
In Bailey, 494 Mich. at 617-618, the Court held that the plaintiff alleged sufficient facts in the
complaint that, if established, gave rise to a duty by the defendant landlord to notify the police of
an ongoing situation involving a gunman on the premises in full view of two security guards, who
were agents of the landlord for purpose of responding to safety issues. The Court concluded that
the allegations supported the plaintiff’s claim that the defendant landlord had a duty to reasonably
expedite the involvement of the police. Id. at 618.
Preliminarily, plaintiffs did not present any evidence to support a claim that Grand Trunk
breached any duty of care related to the initial May 2012 restroom incident. There was no evidence
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that Grand Trunk knew that criminal activity was occurring in the restroom of its building or had
reason to suspect that plaintiff would be a possible victim of criminal activity if she used the
restroom. Indeed, plaintiff did not immediately report the May 2012 restroom incident, but waited
until September 2012 to bring the matter to the attention of Human Resources. Additionally, she
did not initially report the incident as an actual sexual assault, but apparently described it as a
matter of sexual harassment.
Nonetheless, plaintiffs seemingly argue that Grand Trunk can be liable for not timely
launching a criminal investigation when it learned or should have learned through the Human
Resources investigation that this incident involved a criminal matter. In her complaint, plaintiff
alleged that on approximately September 1, 2012, Human Resources launched an inquiry to
investigate sexual harassment of plaintiff related to the May restroom incident, and that it was not
until later, in October 2012, that the CN Police became involved after a note was left on plaintiff’s
vehicle and plaintiff discovered a condom near the vehicle.
However, in light of the manner in which the claim was raised with Human Resources in
September 2012 as sexual harassment and not a sexual assault, there is no indication that Human
Resources sought CN Police involvement to conduct an investigation. Indeed, plaintiff herself
never contacted the police to report a suspected crime or to identify herself as a victim of a criminal
act. During that initial time frame, the allegations of sexual harassment in the workplace did not
amount to notice of an imminent and foreseeable risk of harm to plaintiff that gave rise to a duty
by Grand Trunk to offer plaintiff emergency assistance by contacting the police. Bailey, 494 Mich.
at 599-600. Human Resources concluded its investigation on October 1, 2012. It was unable to
substantiate a violation of its sexual harassment policies because it could not find any witnesses or
persons responsible for the May 2012 event. The next incident involving plaintiff occurred on
October 24, 2012, when plaintiff found an offensive note on her vehicle and an open condom near
the vehicle. At that point, the CN Police became involved and a formal investigation was opened.
Given these facts, there is no merit to plaintiffs’ argument that Grand Trunk had a duty to
provide police assistance or to have the CN Police begin an investigation in September 2012.
Before the incident on October 24, 2012, there was no evidence that plaintiff was a victim of
criminal activity or subject to a risk of imminent and foreseeable harm. Id. at 599-600.
Plaintiffs argue that, like in Bailey, where the defendant was not entitled to rely solely on
its security agents, Grand Trunk had a duty to involve local law enforcement and was not entitled
to rely solely on the CN Police. However, this case is distinguishable from Bailey in this regard.
The evidence showed that the CN Police are duly commissioned officers with “the powers of
sheriffs, marshals, constables, and municipal police officers” and have responsibility to “enforce
and compel obedience to the laws of this state and to the ordinances of the cities, villages, and
townships of this state when engaged in the discharge of his or her duties as a railroad police
officer.” MCL 462.377. Thus, unlike the security officers in Bailey, the CN Police had full
authority to investigate this matter and make any necessary arrests. In Bailey, the Court explained
that the duty owed to business invitees is to reasonably expedite “police involvement.” Id. at 599-
600. That occurred in this case when Grand Trunk contacted a police agency with full law
enforcement authority. Nothing in Bailey required Grand Trunk to contact a specific police force.
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The submitted evidence showed that the CN Police acted consistent with how a local police
force would have acted. They interviewed witnesses, collected evidence, and submitted evidence
for forensic analysis. Further, we again note that plaintiff never reported an actual sexual assault
while she was still working at the railyard. That information was revealed years later, after plaintiff
had left her employment, when she claimed that therapy enabled her to recover additional
memories of her experiences during her employment. To the extent plaintiff suggests that Grand
Trunk had a duty to involve local law enforcement in light of a lack of specialized training in
sexual assaults by the CN Police, the initial report by plaintiff in September 2012 did not allege a
sexual assault. Accordingly, the CN Police did not have knowledge of a necessity to enlist
agencies with specialized training in sexual assaults.
There also is no support for plaintiffs’ argument that the CN Police actively prevented local
law enforcement from investigating plaintiff’s allegations. At most, plaintiff showed that the St.
Clair County Sheriff’s Department made an inquiry after plaintiff contacted it in November 2012,
but that the department demurred to the CN Police’s jurisdiction. A deputy responded to plaintiff’s
call and took her initial report, but after verifying that no one needed immediate assistance, the
deputy left once he determined that the CN Police were already involved. While plaintiff testified
that the county sheriff told her that the CN Police did not like the sheriff on the railroad’s property,
that does not demonstrate that the CN Police actively prevented local law enforcement from
investigating.
In sum, the duty under Bailey relating to a third party’s criminal acts is limited to
reasonably notifying the “police” when the property owner has notice that a third party’s criminal
acts pose a risk of imminent and foreseeable harm to an identifiable invitee. In the present case,
the evidence showed that plaintiff’s initial reports did not provide notice that she was the victim
of a criminal sexual assault. Once Grand Trunk was notified that plaintiff was a possible stalking
victim, it promptly notified its commissioned police force. Therefore, Grand Trunk was entitled
to summary disposition with respect to plaintiffs’ claim that Grand Trunk was negligent for not
expeditiously contacting law enforcement.
Plaintiffs additionally argue that Grand Trunk was negligent for failing to secure its
premises. To the extent that plaintiffs attempt to impose liability on Grand Trunk for failing to
provide adequate security to protect invitees on its premises, the Court in Scott v Harper
Recreation, Inc, 444 Mich. 441, 448-452; 506 NW2d 857 (1993), reaffirmed that “a merchant is
not ordinarily required to protect customers from the criminal acts of third persons,” and further
clarified that business owners cannot be held liable when implemented security measures fail to
prevent criminal activity. Moreover, when safety precautions are taken, a merchant cannot be sued
under a theory that the security measures taken “were less effective than they could or should have
been.” Krass v Tri-Co Security, Inc, 233 Mich. App. 661, 680; 593 NW2d 578 (1999). An
exception to this rule is foreseeable criminal conduct. Id. at 682.
Although plaintiffs argue that Grand Trunk could have taken other actions to protect
plaintiff from criminal conduct, there was no evidence suggesting that the May 2012 restroom
incident was foreseeable or that future criminal activity was imminent. Moreover, plaintiff’s
delayed and incomplete report of that incident did not give Grand Trunk reason to believe that
plaintiff had been sexually assaulted, was at risk of a foreseeable sexual assault, or was foreseeably
at risk of ongoing stalking conduct. The later incidents involving the notes left on plaintiff’s car
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and near her workspace involved conduct unrelated to the bathroom area or the initial bathroom
incident. Moreover, the evidence showed that upon receiving notice of the stalking activity
directed at plaintiff, Grand Trunk’s police force promptly launched an investigation and took steps
to better secure its premises, including by adding cameras and fixing the problematic lock in the
women’s restroom. Although there were subsequent incidents of stalking conduct directed at
plaintiff, those incidents occurred on random occasions and at different locations. Plaintiff also
alleged that some personal items were taken from her desk, but there was no evidence of a pattern
of this conduct such that Grand Trunk should have anticipated it and acted to prevent it. There
was no evidence suggesting that these separate incidents were imminent and foreseeable such that
Grand Trunk had a duty to act to protect plaintiff from the conduct. In sum, Grand Trunk cannot
be held liable because its security measures failed to protect plaintiff from possible criminal
conduct of third parties.
B. VICARIOUS LIABILITY
The trial court also properly granted summary disposition in favor of Grand Trunk with
respect to plaintiffs’ claim that Grand Trunk should be held vicariously liable for the CN Police’s
handling of this investigation. We hold that plaintiff lacks standing under the public-duty doctrine
to assert a claim for negligence involving the actions of the CN Police of their performance of law
enforcement functions.3 This state has recognized that law enforcement officers generally do not
owe a duty of care to individuals. Any duty to conduct a proper investigation is owed to the public,
not an individual personally. White v Beasley, 453 Mich. 308, 316-319; 552 NW2d 1 (1996).
“[T]he public-duty doctrine insulates officers from tort liability for the negligent failure to provide
police protection unless an individual plaintiff satisfies the special-relationship exception.” Id. at
316. To meet the special-relationship exception, a plaintiff must satisfy the following test:
(1) an assumption by the municipality, through promises or actions, of an
affirmative duty to act on behalf of the party who was injured;
(2) knowledge on the part of the municipality’s agent that inaction could
lead to harm;
(3) some form of direct contact between the municipality’s agents and the
injured party; and
(4) that party’s justifiable reliance on the municipality’s affirmative
undertaking . . . . [Id. at 320, quoting Cuffy v City of New York, 69 NY2d 255, 260;
513 NYS2d 372; 505 NE2d 937 (1987).]
In this case, the submitted evidence does not establish a question of fact regarding the
existence of a special relationship between plaintiff and the CN Police. Although there was direct
contact between plaintiff and the CN Police once the CN Police were notified that plaintiff
discovered an offensive note on her vehicle, they were not aware at that time that plaintiff had
3
In light of our holding on this issue, we do not address defendant’s application of governmental
immunity.
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previously been a victim of a sexual assault. Further, although the CN Police investigated the
stalking conduct against plaintiff, there is no evidence that they affirmatively promised or agreed
to act in some manner on plaintiff’s behalf and failed to do so, or that plaintiff’s conduct was
guided by any reliance on any promise or undertaking of the CN Police. Accordingly, the special-
relationship exception to the public-duty doctrine does not apply in this case.
In any event, the evidence fails to show that the CN Police conducted an inadequate
investigation on the basis of the information that plaintiff provided at the time. Plaintiffs largely
rely on their experts’ opinions regarding errors in the investigation by the CN Police. Plaintiffs’
experts primarily faulted the police for not following protocols for sexual assault cases. However,
when plaintiff made her report to the CN Police, she did not report being touched or sexually
assaulted in the May 2012 restroom incident, and the subsequent stalking conduct also did not
involve a sexual assault. In therapy, plaintiff recovered memories of that incident as involving a
sexual assault. Thus, the evidence would not be relevant in evaluating the adequacy of the CN
Police’s investigation because they had no reason to believe at the time of their investigation that
the incident involved a sexual assault, and plaintiff was unable to identify a person or persons
responsible.
The record shows that the CN Police preserved the physical evidence it collected and sent
it to the Michigan State Police for examination. The note was checked for impressions and latent
prints, and the condom was examined for DNA. The evidence also shows that the CN Police
interviewed almost every person identified as working at the railyard in the area when the second
reported incident occurred in November 2012, to determine if they witnessed anything relevant to
the investigation. None of these witnesses had any useful information. The May 2012 restroom
incident was not disclosed until several months after it occurred, plaintiff reported that she was
alone with the suspect at the time of the incident, and plaintiff denied that she was able to identify
the suspect. Consequently, there is no reason to believe that local law enforcement would have
had better success than the CN Police in identifying a suspect. Even though plaintiff later
identified her assailant, that information was not imparted to the CN Police at the time of their
investigation in 2012, and there was no reliable evidence that the person she later identified was a
suspect.
Plaintiffs’ experts also faulted Grand Trunk for not adopting additional security measures.
However, this relates to Grand Trunk’s obligations as owner of the property. As discussed earlier,
Grand Trunk’s duty was limited to reasonably expediting the involvement of the police in response
to known criminal activity and it cannot be held liable because any security measures implemented
failed to prevent criminal activity. Bailey, 494 Mich. at 599; Scott, 444 Mich. at 448-452.4
4
Plaintiffs also assert that Grand Trunk can be liable for negligently training its police force.
However, there is no evidence that the CN Police lacked proper training to qualify as
commissioned law enforcement officers as set forth in MCL 462.367(2). Plaintiffs have not
explained why the CN Police lacked appropriate training and they did not factually support this
argument with any evidence.
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In sum, even if Grand Trunk could be held vicariously liable for the actions of the CN
Police, plaintiffs have not shown that the CN Police were negligent in investigating the case on
the basis of the information provided to them at the time.
C. NUISANCE
The trial court did not separately address plaintiff’s nuisance claim, but Grand Trunk was
also entitled to summary disposition of that claim. Plaintiffs alleged that Grand Trunk, as the
owner and possessor of the railyard, created or allowed dangerous physical conditions and
protracted criminal activities on its property, which constituted a nuisance. Plaintiffs rely on
Wagner v Regency Inn Corp, 186 Mich. App. 158; 463 NW2d 450 (1990), and Sanford v Detroit,
143 Mich. App. 194; 371 NW2d 904 (1985), in support of their argument. In Wagner, 186 Mich
App at 163-167, this Court explained:
The essence of plaintiff’s nuisance claims is that defendants, who owned or
controlled the Regency Inn premises, intentionally or negligently created or
allowed the existence of certain dangerous physical conditions and protracted
criminal activities on their premises which combined to constitute a public
nuisance. A public nuisance is an unreasonable interference with a right common
to the general public. 4 Restatement Torts, 2d, § 821B, p 87; Sanford v Detroit,
143 Mich. App. 194, 199; 371 NW2d 904 (1985). The term “unreasonable
interference” includes: (1) conduct that significantly interferes with public health,
safety, peace, comfort, or convenience; (2) conduct that is prescribed by law; (3)
conduct of a continuing nature that produces a permanent or long-lasting effect,
and, as the actor knows or has reason to know, has a significant effect on public
rights. Id., 199-200.
The possessor of land upon which the third person conducts an activity that
causes a nuisance is subject to liability if: (1) he knows or has reason to know that
the activity is being conducted and that it causes or involves an unreasonable risk
of causing the nuisance, and (2) he consents to the activity or fails to exercise
reasonable care to prevent the nuisance. 4 Restatement Torts, 2d, § 838, p 157.
A nuisance per se is an act, occupation, or structure which is a nuisance at
all times and under any circumstances. Eyde Bros Development Co v Roscommon
Co Bd of Rd Comm’rs, 161 Mich. App. 654, 669; 411 NW2d 814 (1987).
By contrast, a nuisance in fact is a nuisance by reason of circumstances and
surroundings. An act may be found to be a nuisance in fact when its natural
tendency is to create danger and inflict injury on person or property. Eyde, supra,
at 669. A negligent nuisance in fact is one that is created by the landowner’s
negligent acts, that is, a violation of some duty owed to the plaintiff which results
in a nuisance. Buckeye Union Fire Ins Co v Michigan, 383 Mich. 630; 178 NW2d
476 (1970); Young v Groenendal, 10 Mich. App. 112; 159 NW2d 158 (1968). A
nuisance in fact is intentional if the creator intends to bring about the conditions
which are in fact found to be a nuisance. To establish intent, the plaintiff must
show that when the defendant created or continued the condition causing the
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nuisance, he knew or must have known that the injury was substantially certain to
follow, in other words, deliberate conduct. McCracken v Redford Twp, 176 Mich
App 365, 371; 439 NW2d 374 (1989); Sanford, supra, 199. We have reviewed
counts i through m of plaintiff’s complaint and conclude that when the factual
allegations are accepted as true, along with any inferences which may be fairly
drawn therefrom, plaintiff stated sufficient claims for nuisance per se and nuisance
in fact, both negligent and intentional. Mills, supra, 205.
Moreover, after reviewing the documentary evidence on the record, we
conclude that the trial court also correctly denied defendants’ motions for summary
disposition under MCR 2.116(C)(10), because plaintiff had sufficiently raised
genuine issues of material fact. Deposition testimony by an employee of defendant
Americar and the affidavit of a security guard employed at defendant Regency Inn
detailed the prevailing conditions on the premises at issue. Stolen cars, shootings,
and calls to the police were almost daily occurrences. Prostitutes maintained rooms
in the hotel on a daily basis. Drug trafficking was a constant problem with Young
Boys, Inc., a notorious drug trafficking gang, renting entire floors of the hotel from
which to run their operations. Breakings and enterings, assaults, armed robberies,
and car thefts were frequent occurrences on the premises. A fire bombing once
“took out” an entire floor of the hotel. Defendants and their agents and employees
were aware of these occurrences.
Plaintiff also presented a report by an expert who opined that, on the basis
of the frequent occurrence of crime on the premises and the physical condition of
the premises, such as a privacy fence around the parking lot, the premises was a
“crime magnet,” that is, a place where crimes were even more likely to occur than
in the surrounding high-crime area. The physical condition of the premises
conveyed a message that “anything goes” and that there would be no proprietary
intervention.
According to the terms of its lease, defendant Americar controlled office
and lobby space in the hotel and portions of the parking lot. Americar was obligated
to keep the premises in good repair.
Courts are liberal in finding a genuine issue of material fact. . . . Giving the
benefit of reasonable doubt and inference to plaintiff, it is reasonable to infer that
defendants at least tolerated the conditions amounting to a nuisance and at worst
condoned or created them. One need not stretch the imagination far to infer that
defendants Regency Inn and Americar derived a substantial portion of their income
from the illegal on-premises activities. One may infer that they knew or should
have known that the physical condition of the premises and high degree of on-
premises crime created an atmosphere of criminality which posed a significant risk
to public safety and was substantially certain to result in types of activity such as
that which caused plaintiff’s injury. Contrary to defendants’ contentions, evidence
that they regularly called the police for assistance does not conclusively show that
they took reasonable steps to abate the nuisance. It only creates a question of fact
regarding defendants’ intent and exercise of due care.
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The existence of a nuisance per se is proved by evidence of the act which
created it. Eyde, supra, 669. The existence of a nuisance in fact is a question for
the trier of fact. Id. Whether a nuisance in fact is negligent or intentional is also a
question of fact. We conclude that plaintiff presented sufficient documentary
evidence to raise a question of fact concerning whether defendants created and
maintained a nuisance per se and in fact on their premises and that the trial court
properly denied defendants’ motions for summary disposition.
While plaintiffs assert that Grand Trunk’s property constituted a nuisance because it was
essentially a “hotbed” of criminal or unsavory conduct, similar to that involved in Wagner, the
submitted evidence does not support such a finding. Plaintiffs have submitted evidence of an
isolated incident or incidents that occurred in a building that Grand Trunk operated for those
working for or providing services to the railroad industry. There is no evidence that this site was
known for ongoing criminal activity. Plaintiff did not present any evidence that Grand Trunk had
notice of ongoing criminal activities on its premises or that it had created the conditions that
allowed for criminal activity to occur. Because the evidence does not factually support a finding
of an ongoing, dangerous condition on Grand Trunk’s property due to criminal activity, Grand
Trunk is also entitled to summary disposition of plaintiffs’ nuisance claim.5
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Douglas B. Shapiro
K. F. Kelly, J. did not participate.
5
Scott Zeller’s claim for loss of consortium is wholly derivative of plaintiff’s claims. Because
Grand Trunk is entitled to summary disposition on all of plaintiff’s claims, Scott’s claim for loss
of consortium was also properly dismissed.
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