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STATE OF MICHIGAN
COURT OF APPEALS


LIVONIA GOLD & SILVER, INC., Plaintiff-Appellant, v WONDERLAND SHOPPING CENTER, VENTURE LTD. PARTNERSHIP, Defendant/Cross-Plaintiff-Appellee, and WILLIAM DAVIS & ASSOCIATES SECURITY SERVICES, INC., Defendant/Cross-Defendant-Appellee, and GUARDIAN ALARM COMPANY OF MICHIGAN, Defendant.

UNPUBLISHED April 14, 2000

No. 209946 Wayne Circuit Court LC No. 97-700525-CK

Before: Meter, P.J., and Griffin and Owens, JJ. PER CURIAM. In this negligence action, plaintiff, who lost over $200,000 worth of jewelry to a burglar, appeals by right from the trial court's orders granting summary disposition to defendant Wonderland Shopping Center, Venture Ltd. Partnership ("Wonderland"), from whom plaintiff leased a store in a shopping mall, and defendant William Davis & Associates Security Services, Inc. ("Davis"), who provided security services to Wonderland. We affirm.

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Plaintiff argues that the trial court erred in granting Wonderland's motion for summary disposition. Wonderland moved for summary disposition under MCR 2.116(C)(8) and (C)(10), and the trial court did not explicitly state under which of these rules it granted the motion. Because the court looked beyond the pleadings, however, we will review the ruling under MCR 2.116(C)(10). See Krass v Tri-County Security, Inc, 233 Mich App 661, 664-665; 593 NW2d 578 (1999). We review a trial court's grant of a motion for summary disposition under MCR 2.116(C)(10) de novo. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). We review the affidavits, pleadings, depositions, admissions, and documentary evidence submitted by the parties in the light most favorable to the nonmoving party and decide if there exists a genuine issue of material fact. Morales v Auto-Owners Ins, 458 Mich 288, 294; 582 NW2d 776 (1998). Plaintiff argues that because the contract between it and Wonderland indicated that Wonderland would "police" the common area of the mall, Wonderland owed plaintiff a duty to act with reasonable care to prevent intruders from entering the common area of the mall during non-business hours (during which the theft occurred). Plaintiff contends that (1) Wonderland breached this alleged duty by providing inadequate security services, and (2) Wonderland's breach ultimately led to the theft of the jewelry and plaintiff's accompanying damages. In a merchant-customer relationship, a merchant who voluntarily provides security services cannot be held liable if the security measures were less effective than they could or should have been. See Scott v Harper Recreation, Inc, 444 Mich 441, 452; 506 NW2d 857 (1993), and Krass, supra at 684. In a landlord-tenant relationship, however, such a theory of liability remains viable under the current state of the law. See Holland v Liedel, 197 Mich App 60, 64-65; 494 NW2d 772 (1992), and Scott, supra at 452 n 15. Here, the relationship between plaintiff and Wonderland was a landlord tenant relationship, and plaintiff's theory was therefore viable. Moreover, even though the contract provided that Wonderland would police only the "common area" of the mall, and the theft of the jewelry took place entirely within plaintiff's leased premises, it is at least arguable that an inadequate policing of the common area proximately caused plaintiff's damages (because the burglar had to first access the common area to reach plaintiff's store). Accordingly, it appears that the necessary elements for a viable negligence claim

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Michigan Law