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Judicial activism in the premise liability sphere

          The would-be "conservatives" on the Michigan Supreme Court have displayed their judicial activism in yet another context that prejudices consumers and victims for the benefit of the Chamber of Commerce.  This activism was recently emphasized when the Court summarily reversed a decision of the Court of Appeals.

          The common law of negligence starts from the basic assumption that every person must act reasonably toward others.  The Courts then carve out some exceptions from this "duty of reasonable care" where exceptional public policy reasons dictate that a person should owe no duty to others.  Our Supreme Court, since Justice Engler's personal appointees have taken control, has indulged in a prolonged binge of withdrawing rights from consumers.  That assault on civility has also included eliminating a merchant's duty to act reasonably to protect customers from the criminal act of another.

          The Supreme Court's majority, in the MacDonald v. PKT, Inc., case, acknowledged that "ordinarily [a merchant's duty to respond to criminal acts occurring on the premises] would be a question for the factfinder".  For the past several decades, the courts in Michigan had left the determination to that simple test.  In MacDonald, however, the majority went on to hold (in an exercise of activism it did not acknowledge) that " cases in which overriding public policy concerns arise, this Court may determine what constitutes reasonable care."  The majority then held that " a matter of law, fulfilling the duty to respond requires only that a merchant make reasonable efforts to contact the police."

          In September of 2007 the majority went one step further in Lamar v. Ramada Franchise Systems, Inc.   The Court of Appeals had relied upon the above language to establish the principle that whether the merchant made "reasonable efforts to contact police" was a question for the fact-finder--not a question of law for the Court.  The Supreme Court majority overruled the Court of Appeals and decided the case as a matter of law, despite questions regarding how long the confrontation on Defendant's premises was on-going and how long it took Defendant's employees to respond.  Where the MacDonald case had insisted that a merchant had no duty to anticipate criminal acts, to intervene to stop criminal acts, or even to maintain security personnel where criminal acts might be expected to occur, the majority in Lamar went further, holding that a victim cannot dispute whether the Defendant was unreasonably slow in calling authorities.

           It is not clear to us what public policy could possibly justify immunizing anyone in our society from acting "reasonably" to prevent or respond to criminal or violent behavior.  We would submit that there is an overwhelming public policy in favor of requiring everyone to act reasonably to prevent or minimize crime and violence.  Not only do we disagree with the Court's assessment of "overriding public policy concerns", but we also despise the majority's arrogation of the right to make such "overriding" changes in established law.  These are precisely the kind of decisions which, in other contexts, the judicial "conservatives" have challenged.  It is another evidence of the principle that many so-called "judicial conservatives" are simply activists with a particular agenda--or a particular constituency to protect.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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