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Earle v. Colonial Theatre Co.

Michigan Court of Appeals
Mar 20, 1978
266 N.W.2d 466 (Mich. Ct. App. 1978)


Docket Nos. 30195, 30196.

Decided March 20, 1978. Leave to appeal applied for.

Appeal from Wayne, Thomas J. Foley, J. Submitted October 4, 1977, at Detroit. (Docket Nos. 30195, 30196.) Decided March 20, 1978. Leave to appeal applied for.

Complaints by Steven Earle against Colonial Theatre Company and Midwest Theaters Company for damages for injuries received when plaintiff was attacked in a theatre. The cases were consolidated for trial. Judgment for plaintiff. Defendants appeal. Affirmed.

August, Thompson, Sherr Miller, P.C. (by Paul D. Sherr and Ellen J. Alter), for plaintiff.

Seth H. Barsky and Faintuck, Shwedel, Roether, Wolfram, McDonald Zipser, for defendants.

Before: D.F. WALSH, P.J., and V.J. BRENNAN and BEASLEY, JJ.

On August 23, 1972, while a patron in the now closed Colonial Theatre on the edge of downtown Detroit, plaintiff was shot in the right ear in an unprovoked attack by a stranger. Although suffering serious injury and loss of hearing in one ear, plaintiff recovered and sued defendant for damages, claiming defendant did not exercise reasonable care for his safety. Specifically, plaintiff offered evidence of previous criminal activity in or about the theatre and asserted defendants were thus placed on notice of an unreasonable risk of harm to patrons which imposed a duty on defendants to maintain armed security guards for the safety of paying patrons.

The felon was never apprehended or identified. At the time, the Colonial Theatre was an "all night" movie house (i.e., was open 24 hours a day), but was not an "adult" theatre showing pornographic films. On the night of the assault on plaintiff, the movies "Shaft" and "Shaft's Big Score" were being shown.

Plaintiff's proofs indicated the theatre was in a high crime area and that in a two-year period preceding this assault there had been several incidents of criminal acts, including robbery, armed and unarmed, felonious assault and rape.

The jury returned a verdict of $40,000 for plaintiff. Defendants appeal as of right.

Defendants say that while crime has, unfortunately, become such a way of life as to be generally foreseeable, this does not mean that all businesses have a duty to hire armed guards to protect customers. Defendants say this Court should determine, as a matter of law, that defendants had no duty to maintain armed guards.

In this connection, defendants urge that we consider the economic effect of a holding (albeit by jury verdict) that businesses in high crime areas have a duty to maintain armed guards to secure the safety of patrons and other business invitees. We are not only mindful of this economic effect, but we also are aware that "high crime areas" exist not only in the large cities, but also in the suburbs and many medium-sized cities throughout the state.

Nevertheless, it is also clear that defendants, in conducting their business, undertook certain duties regarding business invitees. Among other things, the court instructed the jury as follows:

Marietta v Cliffs Ridge, Inc, 385 Mich. 364; 189 N.W.2d 208 (1971).

"Now, in considering whether there was an act of negligence, the law provides that when a person is invited on the premises of a business he is a business invitee, and the person doing the inviting has a certain duty to that individual. That duty is, in this state, to use reasonable care for the safety of that person. Now, it is going to be up to you to determine what are the requirements of using reasonable care for the safety of the Plaintiff * * *."

As stated by the court, once such a duty is established, it is for the jury to determine the specific standard of care applicable. In this case, presumably the jury did determine the specific standard of care required of this theatre owner. Under present law, that determination must be affirmed. In addition, we find no error in the denial of defendants' motion for a directed verdict since that motion was also grounded upon a request that the trial court decide questions which, as has already been discussed, were properly for the jury.

Moning v Alfono, 400 Mich. 425; 254 N.W.2d 759 (1977). Moning itself is a 3-2-2 decision. Both this vote and the previous history of negligence law suggest that this area will continue to receive further development and explanation.

In their brief on appeal, defendants do not zero in and specify what the trial judge did or did not do that constituted allegedly reversible error. We assume that the thrust of defendants' argument is directed toward the court's instructions to the jury.

Consequently, we have reviewed the court's instruction to the jury. The instruction consisted of the Standard Jury Instruction, approved and required by order of the Supreme Court, as amplified by requests of the parties. No objection was made by defendants with respect to the court's definition of negligence, due care, duties or proximate cause. In the absence of any objection to the court's charge to the jury, we only review upon a showing of manifest injustice; none appears here. Therefore, insofar as defendants' claims on appeal rest on the jury instructions, they are without merit.

GCR 1963, 516.6; Javis v Ypsilanti Board of Education, 393 Mich. 689; 227 N.W.2d 543 (1975).

Affirmed, with costs.

D.F. WALSH, P.J., concurred.

I am forced to dissent from a portion of my brother BEASLEY'S majority opinion in this case for the same basic reasons expressed in McNeal v Henry, 82 Mich. App. 88; 266 N.W.2d 469 (1978). Though I agree that defendants owed plaintiff a duty of reasonable care due to plaintiff's status as a business invitee, I would conceive the legal definition of that duty, which is a matter for the court to decide, in terms which do not extend to the kind of unforeseeable conduct exhibited by plaintiff's assailant. Defendants' duty will not legally extend to this kind of harm. Very simply then, I do not believe that an unprovoked attack by a stranger with a revolver is the kind of harm foreseeably related to defendants' duty to protect their patrons. See Holloway v Martin Oil Service, Inc, 79 Mich. App. 475; 262 N.W.2d 858 (1977).

Consequently, I would find that, as a matter of law, defendants could not be held responsible for the type of unforeseeable harm consequent to this unprovoked attack. The court was thus in error by denying defendants' motion for directed verdict since that motion properly requested the trial court to decide a legal question, which in my opinion should have been resolved by directing a verdict for defendants. Therefore, I would reverse the court below.

Summaries of

Earle v. Colonial Theatre Co.

Michigan Court of Appeals
Mar 20, 1978
266 N.W.2d 466 (Mich. Ct. App. 1978)
Case details for

Earle v. Colonial Theatre Co.

Case Details


Court:Michigan Court of Appeals

Date published: Mar 20, 1978


266 N.W.2d 466 (Mich. Ct. App. 1978)
266 N.W.2d 466

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