Williams v. Nevel's-Jarrett Associates, Inc , 171 Mich. App. 119 ( 1988 )

171 Mich. App. 119 (1988) 429 N.W.2d 808

WILLIAMS
v.
NEVEL'S-JARRETT ASSOCIATES, INC

Docket No. 94272.

Michigan Court of Appeals.

Decided May 3, 1988.

Schlussel, Drazin & Dowty, P.C. (by Stuart N. Dowty), for plaintiffs.

Harvey, Kruse, Westen & Milan, P.C. (by Dane A. Lupo and Terry J. Pawlowski), for Richard Jarrett.

Before: GRIBBS, P.J., and HOLBROOK, JR., and N.J. LAMBROS,^[*] JJ.

PER CURIAM.

In this case, plaintiffs sought recovery for personal injuries resulting from a gunshot wound inflicted on plaintiff Kenneth Williams by an unknown assailant. Williams was a patron at a nightclub operated by defendants, and the shooting occurred in the nightclub parking lot. The circuit court granted defendants' motion for summary disposition pursuant to MCR 2.116(C)(8). We affirm.

In the recently decided case of Williams v Cunningham Drug Stores, Inc, 429 Mich. 495; 418 NW2d 381 (1988), the Court's narrow, specific holding was "as a matter of law that the duty of reasonable care a merchant owes his invitees does not extend to providing armed, visible security guards to protect customers from the criminal acts of third parties." Id., p 504. A review of the reasoning underlying the holding suggests that it is broad enough to insulate defendants from tort liability for harm to their customers resulting from the criminal acts of others. The holding is premised upon a perceived public policy to facilitate private enterprise even in high-crime areas. "To shift the duty of police protection from the government to the private sector would amount to advocating that members of the public resort to self-help." Id., pp 503-504. In light of Williams, we conclude that the allegations of plaintiffs' complaint do not state a valid cause of action.

In the alternative, plaintiffs argue that defendants gratuitously assumed a duty to provide for Williams' security and that defendants' negligent performance of that duty is actionable. See Smith v Allendale Mutual Ins Co, 410 Mich. 685; 303 NW2d 702 (1981), which relied on 2 Restatement Torts, 2d, § 324A. Since, however, this theory was not pled in the complaint or raised in proceedings below, we decline to consider it now. See Thoms v Diamond, 131 Mich. App. 108, 115-117; 346 NW2d 69 (1983), lv den 419 Mich. 892 (1984). The allegation in the complaint that Williams relied on defendants' assurances that they conducted a safe place of business lacks the specificity necessary to raise the theory that defendants voluntarily undertook to render services for Williams' protection and should be held liable for the negligent performance of an assumed duty.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.