The Paradox of Limiting a Business Owner's Duty to Keep Its Customers Safe

This article was first published in the Detroit Legal News on May 9, 2024.

A. Vince Colella

Moss & Colella P.C.

In the recent wake of our Supreme Court’s reversal of Lugo v Ameritech resulting in the eradication of the “open and obvious” defense to premise liability cases, a look back at another decision issued within a week of Lugo bears attention and appellate re-examination. On July 3, 2001, Chief Justice Robert Young authored the opinion in MacDonald v PKT, Inc. The case involved a group of concertgoers attending a rock concert at Pine Knob who began to pull sod from the lawn seating area and hurl it at other attendees of the show. Unfortunately, Molly MacDonald fractured her ankle while trying to avoid being struck by a piece of sod.

Until that time, the law in Michigan was clear: business owners had a duty to reasonably respond to situations occurring on their premises that pose a risk of imminent and foreseeable harm to its identifiable invitees, or simply stated, its guests. However, this duty did not require business owners to provide private security or resort to “self-help” to deter or quell potentially violent occurrences between customers of their establishments. The law at the time recognized that businesses, including restaurants, bars, and concert venues, had no obligation to anticipate and prevent criminal acts against their customers. The prevailing thought behind the law was that crime, by its nature, is random and unforeseeable. A notion that was debunked by statistical crime data suggesting that violent crimes typically involve individuals who are known (or related) to each other. Therefore, businesses were not expected to provide protection unless a situation was occurring on their property that would alert a “reasonable” owner to the potential violence that may befall their guest. A seemingly fair approach.

However, paradoxically, in his analysis of the line of cases that pre-dated MacDonald, Chief Justice Young was quick to emphasize that under no circumstances did the duty to keep customers safe carry an obligation to provide “police protection.”  The Court rationalized, “…even police, who are specially trained and equipped to anticipate and deal with crime, are unfortunately unable universally to prevent it.” However, the MacDonald opinion has had the opposite effect of its intended purpose. Rather than absolving business owners of the duty to provide police protection, it now requires it.

From a practical perspective, a claim of “failure to expedite” (the ostensible legal cause of action that grew out of the MacDonald decision) invokes a responsibility of businesses to invoke police involvement into private security matters within its establishment — thus shifting the economic burden of safeguarding a business to the taxpayer. Commercial businesses under the MacDonald decision are required to expedite the police when they “know or should know” that the danger of violence is afoot. Consequently, the expense of protecting “business invitees” (the customers for whom they profit) has been imputed upon the police and essentially on the public.

Looking back at the line of cases that pre-date MacDonald, it is hard to debate that the legal (and economic) tort principles borne out of the “common law,” and universally adopted by most states since the early 1900s, provide a more reasoned framework for analyzing the so-called “merchant’s liability.” Perhaps, more importantly, it just makes more sense. In Royal v Mason Dequindre, a Michigan Supreme Court consolidated opinion released on the precipice of a succession of “conservative” judicial appointments, and the Supreme Court determined that a bar owner’s duty to protect its guests from assaults by other patrons shouldn’t be narrowly construed. Rather, the Court was persuaded that the 2nd Restatement of Torts provided more sound guidance in determining the duty of businesses to protect their guests. The majority opinion emphasized the context in which these cases should be decided and reiterated a common law principle, stating, “…if the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.” [Comment F, Restatement of Torts 2d, §344]  

Unquestionably, business owners who are most familiar with their customers’ attitudes, behaviors and propensities are in a much better position to warn other customers, implement safeguards to protect against foreseeable violence, and deter potential perpetrators more so than the police (who are tasked with the unenviable responsibility of protecting an entire community). Moreover, the expectation that a police department could be alerted to a potential disturbance within a bar or restaurant, and dispatch a police officer to investigate the situation before a violent situation erupts is naïve at best.  

Expanding the duty to protect customers beyond simply expediting the police will shift the economic burden back to the business owners, and in turn, make their establishments safer.

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A.Vince Colella is a founding partner of Southfield-based personal injury and civil rights law firm Moss & Colella.