Wagner v. Regency Inn Corp.
Wagner v. Regency Inn Corp.
Opinion of the Court
Defendant Consolidex Corporation, doing business as Americar Rental Systems, appeals by leave granted from the trial court’s denial of its motion for summary disposition under MCR 2.116(C)(8) and (C)(10), on plaintiffs claims for nuisance per se and nuisance in fact. Americar also appeals from the trial court’s grant of summary disposition in favor of defendant Regency Inn Corporation on its cross-claim against Americar for indemnification. Defendant Regency Inn cross appeals from the trial court’s denial of summary disposition on plaintiffs nuisance claims. We affirm.
On October 25, 1985, plaintiff, a resident of the Grand Rapids area, traveled to Grosse Pointe to attend a garage sale. After deciding to purchase some furniture, plaintiff telephoned defendant Americar to arrange for a rental vehicle in order
Plaintiff drove to the Regency Inn and entered the hotel building lobby where defendant Americar was located. While plaintiff was standing at the counter arranging to rent a truck, two men came out of the hotel bar and stood behind plaintiff harassing her in a suggestive manner. The men then left the building, and plaintiff completed her rental transaction.
Shortly thereafter, plaintiff went out to the hotel parking lot to retrieve her checkbook from her car. As she walked toward her car, plaintiff heard the door of a van slam open. She turned around to see one of the men from the hotel lobby standing at the door of the van holding a shotgun. The other man grabbed plaintiff from behind and pushed her into the van. After the men shut the van door, they robbed and raped plaintiff. They then drove the van out of the parking lot and dropped plaintiff, only partially clothed, out onto the expressway. A passer-by rescued plaintiff and took her to a hospital.
Defendant Americar, on appeal, and defendant Regency Inn, on cross appeal, contend that the trial court erroneously denied their motions for summary disposition under MCR 2.116(C)(8) and (0(10). Defendants contend that plaintiffs nuisance claims cannot be maintained because her injuries were solely the direct and proximate result of intervening criminal acts of other parties. Defendants argue that plaintiff merely alleges a negligence claim under the guise of nuisance and conclude that they were entitled to judgment as a matter of law. Defendants’ conclusion is based on
A motion for summary disposition under MCR 2.116(C)(8), for failure to state a claim on which relief can be granted, tests only the legal sufficiency of the claim as stated in the pleadings. The motion should be denied unless the claim is so clearly unenforceable as a matter of law that no factual development could possible justify recovery. Mills v White Castle Systems, Inc, 167 Mich App 202, 205; 421 NW2d 631 (1988).
As defendants correctly note, our Supreme Court has stated that the duty of reasonable care owed by owners and occupiers of land to their invitees does not extend to conditions from which an unreasonable risk cannot be anticipated or to dangers so obvious and apparent that the invitee may be expected to discover them himself. Williams, supra, 500. Accordingly, a merchant’s duty of reasonable care does not include providing armed, visible security guards to deter criminal acts by third parties. Id., 500-504. Moreover, a landowner has no duty to anticipate the hazards arising from a defective condition on its premises, such as a hole in a fence, that could facilitate criminal acts by third parties. Harkins, supra. Nevertheless, we do not read these holdings to bar claims of nuisance under facts such as those of the present case. We perceive a valid distinction be
Williams and its progeny focus on whether the relationship between a landowner-invitor and an invitee gives rise to a duty on the part of the invitor for the benefit of the invitee. By contrast, under a nuisance theory, liability is based on a dangerous, offensive, or hazardous condition of the land or on activities of similar characteristics which are conducted on the land. Stevens v Drekich, 178 Mich App 273, 277; 443 NW2d 401 (1989). A defendant held liable for the nuisance must have possession or control of the land. Id., 278.
The essence of plaintiffs nuisance claims is that defendants, who owned or controlled the Regency Inn premises, intentionally or negligently created or allowed the existence of certain dangerous physical conditions and protracted criminal activities on their premises which combined to constitute a public nuisance. A public nuisance is an unreasonable interference with a right common to the general public. 4 Restatement Torts, 2d, § 821B, p 87; Sanford v Detroit, 143 Mich App 194, 199; 371 NW2d 904 (1985). The term "unreasonable interference” includes: (1) conduct that significantly interferes with public health, safety, peace, comfort, or convenience; (2) conduct that is prescribed by law; (3) conduct of a continuing nature that produces a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect on public rights. Id., 199-200.
The possessor of land upon which the third person conducts an activity that causes a nuisance is subject to liability if: (1) he knows or has reason
A nuisance per se is an act, occupation, or structure which is a nuisance at all times and under any circumstances. Eyde Bros Development Co v Roscommon Co Bd of Rd Comm’rs, 161 Mich App 654, 669; 411 NW2d 814 (1987).
By contrast, a nuisance in fact is a nuisance by reason of circumstances and surroundings. An act may be found to be a nuisance in fact when its natural tendency is to create danger and inflict injury on person or property. Eyde, supra, 669. A negligent nuisance in fact is one that is created by the landowner’s negligent acts, that is, a violation of some duty owed to the plaintiff which results in a nuisance. Buckeye Union Fire Ins Co v Michigan, 383 Mich 630; 178 NW2d 476 (1970); Young v Groenendal, 10 Mich App 112; 159 NW2d 158 (1968). A nuisance in fact is intentional if the creator intends to bring about the conditions which are in fact found to be a nuisance. To establish intent, the plaintiff must show that, when the defendant created or continued the condition causing the nuisance, he knew or must have known that the injury was substantially certain to follow, in other words, deliberate conduct. McCracken v Redford Twp, 176 Mich App 365, 371; 439 NW2d 374 (1989); Sanford, supra, 199. We have reviewed counts i through m of plaintiff’s complaint and conclude that when the factual allegations are accepted as true, along with any inferences which may be fairly drawn therefrom, plaintiff stated sufficient claims for nuisance per se
Moreover, after reviewing the documentary evidence on the record, we conclude that the trial court also correctly denied defendants’ motions for summary disposition under MCR 2.116(C)(10), because plaintiff had sufficiently raised genuine issues of material fact. Deposition testimony by an employee of defendant Americar and the affidavit of a security guard employed at defendant Regency Inn detailed the prevailing conditions on the premises at issue. Stolen cars, shootings, and calls to the police were almost daily occurrences. Prostitutes maintained rooms in the hotel on a daily basis. Drug trafficking was a constant problem with Young Boys, Inc., a notorious drug trafficking gang, renting entire floors of the hotel from which to run their operations. Breakings and enterings, assaults, armed robberies, and car thefts were frequent occurrences on the premises. A fire bombing once "took out” an entire floor of the hotel. Defendants and their agents and employees were aware of these occurrences.
Plaintiff also presented a report by an expert who opined that, on the basis of the frequent occurrence of crime on the premises and the physical condition of the premises, such as a privacy fence around the parking lot, the premises was a "crime magnet,” that is, a place where crimes were even more likely to occur than in the surrounding high-crime area. The physical condition of the premises conveyed a message that "anything goes” and that there would be no proprietary intervention.
According to the terms of its lease, defendant Americar controlled office and lobby space in the hotel and portions of the parking lot. Americar was obligated to keep the premises in good repair.
The existence of a nuisance per se is proved by evidence of the act which created it. Eyde, supra, 669. The existence of a nuisance in fact is a question for the trier of fact. Id. Whether a nuisance in fact is negligent or intentional is also a question of fact. We conclude that plaintiff presented sufficient documentary evidence to raise a question of fact concerning whether defendants created and maintained a nuisance per se and in fact on their premises and that the trial court
Defendant Americar also contends that the trial court erroneously made determinations of material fact when it granted summary disposition in favor of defendant, cross-plaintiff Regency Inn on the basis of an express indemnity provision contained in the parties’ lease agreement. We disagree.
On August 9, 1984, defendant Patel, then operating under the name "Quality Inn of Detroit,” entered into an agreement to lease space on the hotel premises to defendant Consolidex Corporation, doing business as defendant Americar. The lease, drafted by Americar, contained a provision by which Americar agreed to "indemnify and hold harmless Quality from any liability for damages to any person or property in, on or about said premises from any cause whatsoever.” The lease also provided that a holdover by Americar after the expiration of the lease term would constitute a month-to-month tenancy in the absence of a written agreement to the contrary. The effective term of the lease was from August 1, 1984, through July 31, 1985.
When the term expired, defendant Americar did, in fact, continue as a holdover tenant. Therefore, at the time of plaintiff’s injury, Americar was a month-to-month tenant.
Defendant Americar now contends that questions of fact existed concerning its liability under the agreement because the original lease agreement was with Quality Inn rather than Regency Inn, because the terms of the lease were no longer in effect during the month-to-month tenancy, and because the scope of the indemnity provision did not include occurrences in the parking lot. We agree with the trial court that these contentions are without merit.
Third, Americar agreed to indemnify the lessor, Regency Inn, for any liability for damages to any person in, on, or around the premises, from any cause whatsoever. Although indemnity contracts are strictly construed against the indemnitee, they are also construed against the drafter. Pritts v J I Case Co, 108 Mich App 22, 29; 310 NW2d 261 (1981). Defendant Americar drafted the lease and indemnity agreement. The plain and unambiguous language of this particular indemnity agreement is so broad.it can only be construed as applicable to plaintiffs claim. Calladine v Hyster Co, 155 Mich App 175, 182; 399 NW2d 404 (1986). While plaintiffs injury, which occurred in the hotel parking lot, may not have occurred on the actual premises leased and controlled by Americar, it occurred in proximity to, in other words, "on or about,” the leased premises. See People v Fochtman, 226 Mich 53, 62; 197 NW 166 (1924) (defining "about” in a temporal context).
Last, Americar argues that the trial court abused its discretion by refusing to rehear or reconsider its ruling that the indemnity clause was valid and enforceable because the grant of sum
Affirmed.
Concurring in Part
(concurring in part and dissenting in part). While I agree with the majority’s conclusion regarding indemnification by defendant Americar, I cannot agree with its conclusion that the
Regardless, plaintiffs nuisance claim cannot lie. It cannot be said that the natural tendency of defendants’ conduct was to create danger and inflict injury upon a person or property. By plaintiffs own statement of facts, defendants neither permitted nor acquiesced in the illegal use of their premises by third persons. Accordingly, I would reverse the judgment of the trial court and grant defendants’ summary disposition.
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