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Michigan Supreme Court Lansing, Michigan 48909 ____________________________________________________________________________________________
C hief Justice

Opinion
MOLLY MACDONALD,
Plaintiff-Appellee,
v

Maura D. Cor rigan

Justices

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JUNE 26, 2001


No. 114039


PKT, INC, known as PINE KNOB MUSIC
THEATER, and ARENA ASSOCIATES,
jointly and severally,
Defendants-Appellants,
and
CAPITAL CITIES/ABC, INC,
Defendant.
STEPHEN L. LOWRY,
Plaintiff-Appellant,
v CELLAR DOOR PRODUCTIONS OF MICHIGAN,
INC, a Michigan corporation, and
ARENA ASSOCIATES INC, d/b/a PINE
KNOB MUSIC THEATER, jointly and
severally,
Defendants-Appellees.
BEFORE THE ENTIRE BENCH
YOUNG, J.
I. INTRODUCTION
No. 115322


In

these

consolidated

premises

liability

cases,


plaintiffs seek to recover for injuries they suffered when
fellow concertgoers at the Pine Knob Music Theater (Pine
Knob), an outdoor amphitheater that offered seating on a
grass-covered hill, began pulling up and throwing pieces of
sod. We granted leave to address the duty of premises owners


concerning the criminal acts of third parties.
Under Mason v Royal Dequindre, Inc, 455 Mich 391; 566
NW2d 199 (1997), merchants have a duty to respond reasonably
to situations occurring on the premises that pose a risk of
imminent and foreseeable harm to identifiable invitees. We


hold today that the duty to respond is limited to reasonably
expediting the involvement of the police and that there is no
duty to otherwise anticipate and prevent the criminal acts of
third parties. Finally, consistent with Williams v Cunningham
Drug Stores, Inc, 429 Mich 495; 418 NW2d 381 (1988), and Scott
v Harper Recreation, Inc, 444 Mich 441; 506 NW2d 857 (1993),
we reaffirm that merchants are not required to provide


security personnel or otherwise resort to self help in order
to deter or quell such occurrences.
II. FACTUAL
AND

PROCEDURAL BACKGROUND

MACDONALD


A. In MacDonald,

plaintiff

Molly

MacDonald

attended

a


concert on May 4, 1995, at Pine Knob at which several bands
were performing. Pine Knob offers seating on a grass-covered
Plaintiff received


hill, as well as seating in a pavilion.

the tickets to the concert as part of a promotional giveaway
by a local radio station sponsoring 2
the concert. When


plaintiff arrived at Pine Knob, she and a friend found a spot
to sit on the hill. While a band called Bush was performing,


some patrons began pulling up sod and throwing it.
Before the concert, the event coordinator had asked the
bands to stop performing in the event that the audience
members began throwing sod, and announce that the sod throwing
must stop. rooms of There were also flyers posted in the dressing
the bands requesting the bands to make an


announcement to the audience to stop throwing sod.

Pursuant


to that request, the band finished the song and stopped
performing, making an announcement that unless the sod


throwing stopped, the concert would not continue.

The crowd


complied with the band's request, and several individuals were
ejected from Pine Knob for throwing sod.
While the next band, the Ramones, was performing, the sod
throwing resumed. After that band refused to make an


announcement to stop throwing sod, the event coordinator
turned on the house lights. When the sod throwing continued,


the band made an additional announcement demanding that it
stop. Once again, several individuals who were involved in


throwing sod were ejected from the theater. During the second
incident of sod throwing, plaintiff fractured her ankle when
she fell while attempting to avoid being struck by a piece of
sod. Discovery materials indicated that there had been two


sod-throwing incidents at previous concerts at Pine Knob, one
incident in 1991, at a Lollapalooza concert, and another


3


incident in 1994, at a Metallica concert.1
Plaintiff filed a complaint against, among others, PKT,
Inc., also known as Pine Knob Music Theater and Arena


Associates.2

Plaintiff alleged that Pine Knob was negligent


in failing to provide proper security, failing to stop the
performance when it should have known that continuing the
performance would incite the crowd, failing to screen the
crowd to eliminate intoxicated individuals, and by selling
alcoholic beverages. Pine Knob moved for summary disposition,
arguing that it did not have a duty to protect plaintiff from
the criminal acts of third parties. Meanwhile, plaintiff


moved to amend her complaint to add certain theories including
design defect, nuisance, and third-party beneficiary claims
and to more specifically set forth her negligence claim.
The trial court granted summary disposition for Pine Knob
pursuant to MCR 2.116(C)(8) and (10), but the Court of Appeals
reversed.3 The Court of Appeals held that the trial court


erred in granting summary disposition in favor of Pine Knob
because there were fact questions for the jury regarding
whether the sod throwing incident created a foreseeable risk
of harm and whether the security measures taken by Pine Knob


The 1994 sod-throwing incident resulted in the lawsuit
at issue in Lowry.
Although not fully explained by the parties, apparently
Pine Knob Music Theater and Arena Associates is one entity.
Capital Cities/ABC, Inc., the owner of the radio station that
sponsored the concert, was dismissed as a party defendant from
the case early on and is not a party to this appeal.

3 2

1

233 Mich App 395; 593 NW2d 176 (1999).
4

were reasonable. The Court of Appeals reasoned that plaintiff
submitted evidence that there had been incidents of sod
throwing at previous concerts, that Pine Knob was aware of
those instances, and that it had formulated policies to deal
with sod throwing incidents before the concert. Regarding the
question whether security measures taken by Pine Knob were
reasonable, the Court of Appeals stated that plaintiff


presented evidence sufficient to survive summary disposition
by submitting the affidavit of an expert witness who stated
that Pine Knob was negligent by (1) failing to have adequately
trained security personnel properly positioned at the


concert,4 (2) failing to summon the police to eject or arrest
those throwing sod, (3) failing to have a clear, written
policy regarding the sod throwing, (4) allowing the concert to
continue after the first incident, and (5) serving alcohol.
Finally, the Court of Appeals held that the trial court
abused its discretion in denying plaintiff's motion to amend
her complaint pursuant to MCR 2.116(I)(5). Appeals stated that the proposed claims The Court of
were legally


sufficient and were justified by the evidence. This Court
granted Pine Knob's application for leave to appeal.5
B. LOWRY
In Lowry, plaintiff and a friend attended a Suicidal
Tendencies/Danzig/Metallica concert at Pine Knob on June 22,


Approximately forty security officers and eleven
officers from the Oakland County Sheriff's Department were
working at the concert.

5

4

461 Mich 987 (2000). 5

1994.

Plaintiff suffers from multiple sclerosis and uses the
Plaintiff was seated in the


aid of two canes or a wheelchair.

handicapped section at Pine Knob, which is located at the rear
of the pavilion immediately adjacent to the grass seating.
During the performance of Danzig, patrons seated on the lawn
of Pine Knob began throwing sod. Plaintiff was allegedly
Within a few


struck with sod on the head and shoulders.

minutes, the band stopped performing and an announcement was
made requiring individuals to stop or the concert would not
continue. Alcohol sales were cut off. Deposition testimony


indicated that the sod throwing stopped within ten to fifteen
minutes and numerous individuals were ejected from Pine Knob.6
Plaintiff brought a negligence action against Pine Knob,
as well as Cellar Door Productions of Michigan, Inc., the
producer of the concert, alleging that defendants failed to
protect plaintiff from the foreseeable dangers of sod throwing
by patrons. Plaintiff also alleged that defendants violated
his rights under the Michigan Handicapper's Civil Rights Act
(MHCRA), (now: Persons With Disabilities Civil Rights Act),
MCL 37.1101 et seq., by failing to adequately accommodate his
disability.
Defendants moved for summary disposition under MCR


2.116(C)(8) and (10), arguing that they owed no duty to
protect plaintiff from the criminal acts of third parties, and
that plaintiff's handicap was fully accommodated. With regard


Approximately seventy crowd control personnel, as well
as officers from the Oakland County Sheriff's Department, were
present at the concert.
6


6

to plaintiff's premises liability claim, the trial court
granted summary disposition for defendants on the ground that
the sod throwing was unforeseeable and that defendants took
reasonable measures to protect their patrons. The trial court
also granted summary disposition for defendants on plaintiff's
handicapper discrimination claim, holding that defendants
provided plaintiff with full and equal utilization of the
facilities.
The Court of Appeals affirmed in an unpublished per
curiam decision.7 As an initial matter, the Court of Appeals


noted that both the parties and the trial court had failed to
recognize that because Cellar Door was not the owner of the
premises, it could not have been negligent under a premises
liability theory.8 By implication, the Court also held that


Cellar Door could not have violated plaintiff's rights under
the MHCRA. With regard to Pine Knob, the Court of Appeals


held that it owed no duty to protect plaintiff because it was
unforeseeable as a matter of law that the crowd would throw
sod at plaintiff during the concert. In that respect, the


Court of Appeals found that the instant case was factually
distinguishable from MacDonald because (1) unlike MacDonald,
in the instant case there was no evidence whatsoever that
defendants had formulated a specific policy to deal with sod
throwing incidents, (2) the sod throwing incident in this case


7

Issued June 8, 1999 (Docket No. 206875).


Plaintiff does not challenge this aspect of the Court of
Appeals decision. Accordingly, we deem plaintiff to have
abandoned his claims against Cellar Door.
7


8

occurred

before the

the

incident was

in

MacDonald, during

and the

(3)

in


MacDonald,

plaintiff

injured

second


occurrence of sod throwing during the same concert, whereas in
this case, there were no incidents of sod throwing during the
prior evening's performance that involved the same bands. The
Court of Appeals also held that Pine Knob fully accommodated
plaintiff's disability.
One panel member dissented in part, arguing that


"[a]lthough plaintiff did not present evidence regarding the
number of previous sod throwing incidents or the dates and
circumstances surrounding those previous occurrences,


plaintiff nonetheless established the existence of a genuine
issue of material fact with respect to whether the sod


throwing incident at issue in this case was foreseeable." The
dissent further suggested that the reasonableness of Pine
Knob's conduct with respect to protecting the patrons with
disabilities from injuries should have been submitted to a
jury.
This Court granted plaintiff's application for leave to
appeal.9
III. STANDARD
OF REVIEW


We review de novo a trial court's decision to grant or
deny summary disposition. 111, 117; 614 NW2d 873 The Herald Co v Bay City, 463 Mich
(2000). A motion for summary


disposition under MCR 2.116(C)(8) tests the legal sufficiency
of the complaint and allows consideration of only the


9

461 Mich 987 (2000).
8

pleadings.

Wade v Dep't of Corrections, 439 Mich 158, 162;
The motion should be granted only when


483 NW2d 26 (1992).

the claim is so clearly unenforceable as a matter of law that
no factual development could possibly justify a right of
recovery. Id. at 163.


A motion for summary disposition pursuant to MCR 2.116
(C)(10) tests the factual support of a claim. Smith v Globe
The


Life Ins Co, 460 Mich 446, 454; 597 NW2d 28 (1999).

motion should be granted if the evidence demonstrates that no
genuine issue of material fact exists, and that the moving
party is entitled to judgment as a matter of law. Id. at 454

455, quoting Quinto v Cross & Peters Co, 451 Mich 358, 362 363; 547 NW2d 314 (1996).
IV. THE
DUTIES OF A MERCHANT


We recognized in Mason the general rule that merchants
"do not have a duty to protect their invitees from


unreasonable risks that are unforeseeable."

Id. at 398.


Accordingly, we held that a duty arises only on behalf of
those invitees that are "`readily identifiable as [being]
foreseeably endangered.'" Id., quoting Murdock v Higgins, 454
Mich 46, 58; 559 NW2d 639 (1997). measures taken must be reasonable. We further held that the
Mason at 405. In the


instant cases, we are called upon to further clarify the duty
that we articulated in Mason.
Mason and its companion case, Goodman v Fortner, both
involved altercations that began in bars. the plaintiff's friends, Dan Kanka, was In Mason, one of
involved in an


altercation with another man, Thomas Geoffrey. 9


The plaintiff


was in a different area of the bar when the fight began, and
only witnessed its conclusion. The bar's bouncers immediately
ejected Geoffrey and, in an attempt to avoid more conflict,
instructed Kanka to remain until Geoffrey left the premises.
When the plaintiff left the bar some time later, Geoffrey
assaulted him in the parking lot, breaking his nose and jaw.
Id. at 393-394. We upheld the dismissal of the plaintiff's


resulting premises liability claim on the ground that, because
the plaintiff was not near the area where the initial fight
occurred (and the defendant had no knowledge that the


plaintiff was associated with either Kanka or Geoffrey), the
defendant had no reason to believe that the plaintiff was in
danger. Even viewed in a light most favorable to the


plaintiff, we held that the facts did not support a finding
that the attack on the plaintiff was foreseeable. Id. at 404.
In Goodman, the plaintiff's girlfriend, Theresa Woods,
was involved in a bar room scuffle with the plaintiff's former
girlfriend and mother of his child, Joslynn Lewis. The fight


continued in the parking lot and then moved back inside the
bar, with two of Lewis' relatives joining the fray. repeated requests that they call the police, Despite
bar's


the

bouncers refused, although they did remove Lewis and her group
from the bar. When the plaintiff and Woods attempted to leave
the bar, Lewis and her friends were waiting out in the parking
lot, yelling at the plaintiff and threatening to kill him.
There was evidence that the bouncers standing at the door
could undoubtedly hear the commotion. One of Lewis' friends
Id. at 395-396.


eventually shot the plaintiff in the chest. 10


We upheld a jury verdict in the plaintiff's favor on the
ground that a reasonable jury could find that the harm to the
plaintiff was foreseeable. We also held that a reasonable


jury could find that the defendant did not take reasonable
steps to prevent the plaintiff's injury. Id. at 404-405.


As we made clear in Williams and Scott, a merchant has no
obligation generally to anticipate and prevent criminal acts
against its invitees. in Lowry correctly Indeed, as the Court of Appeals panel
noted, we have never recognized as


"foreseeable" a criminal act that did not, as in Goodman,
arise from a situation occurring on the premises under


circumstances that would cause a person to recognize a risk of
imminent and foreseeable harm to an identifiable invitee.
Consequently, a merchant's only duty is to respond reasonably
to such a situation. To hold otherwise would mean that


merchants have an obligation to provide what amounts to police
protection, a proposition that we soundly rejected in both
Williams and Scott.10 To the extent that, in Goodman, we


relied upon evidence of previous shootings at the bar in
assessing whether a reasonable jury could find that the
Goodman plaintiff's injury was foreseeable, we now disavow
that analysis as being flatly inconsistent with Williams and
Scott.


Mason cited

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