# Bryant v. Brannen

> Michigan Court of Appeals · September 5, 1989 · 180 Mich. App. 87

URL: https://www.frixlaw.com/law-library/cases/9735671

## Case

- **Full name:** Bryant v. Brannen
- **Court:** Michigan Court of Appeals
- **Decided:** September 5, 1989
- **Citations:** 180 Mich. App. 87; 446 N.W.2d 847
- **Precedential status:** Published
- **Opinion:** Dissent by Levin
- **Judges:** Brennan, Levin, Holbrook, Gillis, Gribbs
- **Cited by:** 30 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9735671

## How later opinions describe it (automated extraction)

- stating that courts may decide whether the agent was acting within the scope of his or her employment as a matter of law when the evidence shows that the agent was acting to further his or her own ends
- holding that a building manager’s outrageous conduct in shooting a tenant was not within the scope of employment, despite the manager’s authority to protect the building
- holding an employer was not liable for a building manager who shot a resident in his own apartment and outside of business hours

## Opinion text

Justice Levin,
dissenting, noted that the defendant’s building contained no unremedied physical defects in the common areas which would allow the clinic’s patients to commit a crime. Samson, supra at 414-415, 420-421. Two other justices agreed.
Then, in Williams, supra, our Supreme Court held that a merchant’s duty of reasonable care does not include providing armed, visible security guards to deter criminal acts of third parties. In Williams, the plaintiff was a store patron. The defendant store was robbed and the plaintiff inadvertently ran out behind the robber, who shot him. Our Supreme Court noted that owners and occupiers of land are in a special relationship with their invitees and have a duty to exercise reasonable care to protect invitees from an unreasonable risk of harm caused by a dangerous condition of the land. Id. at 499. Consequently, a landlord may be held liable for an unreasonable risk of harm caused by a dangerous condition in the areas of common use retained in his control such as lobbies, elevators, hallways, and stairways. Id. Likewise a business invitor or merchant may be held liable for injuries resulting from negligent maintenance of the premises or defects in the physical structure of the building. Id. at 499-500. Nonetheless, the invitor is not a guarantor of the invitees’ safety; his only duty is to exercise reasonable care for their protection. Id. at 500.
Our Supreme Court declined to extend the duty to provide armed security guards to merchants given the degree of control in a merchant’s relationship with invitees, the nature of the harm *96 involved, and the public interest in imposing such a duty. The Court noted that the plaintiff was essentially arguing that the defendant had a duty to provide police protection, which was vested in the government. The Court also noted that, while the defendant could control the condition of its premises by correcting physical defects which might result in injury to its invitees, it could not control the incidence of crime in the community. In particular, our Supreme Court noted that businesses are open to the public.
The Supreme Court then added the following footnote:
We find that a landlord has more control in his relationship with his tenants than does a merchant in his relationship with his invitees. Should a dangerous condition exist in the common areas of a building which tenants must necessarily use, the tenants can voice their complaints to the landlord. Thus, in Samson v Saginaw Professional Building, Inc, 393 Mich 393, 408-411 ; 224 NW2d 843 (1975), we upheld a landlord’s duty to investigate and take available preventive measures when informed by his tenants that a possible dangerous condition exists in the common areas of the building, noting that the landlord’s duty may be slight. The relationship between a merchant and invitee, however, is distinguishable because the merchant does not have the same degree of control. When the dangerous condition to be guarded against is crime in the surrounding neighborhood, as it is in the present case, the merchant may be the target as often as his invitees. Therefore, there is little the merchant can do to remedy the situation, short of closing his business. [Id. at 502, n 17.]
Nonetheless, the Supreme Court approvingly cited Goldberg v Newark Housing Authority, 38 NJ 578, 589-590; 186 A2d 291 (1962), which held that a municipal housing authority did not have a duty *97 to provide police protection for its tenants. Id. at 503.
Finally, our Supreme Court noted that the inability of government and law enforcement officials to prevent criminal attacks did not justify shifting that responsibility to the business owner. Id. at 503. In fact, to shift the duty of police protection from the government to the private sector would amount to advocating that members of the public resort to self-help, and that would contravene public policy. Id. at 503-504.
As noted above, our Supreme Court remanded this case for reconsideration in light of Williams, supra. Nonetheless, we begin our analysis by noting that Blakely shot plaintiff while they were in their respective apartments. Hence, a common area under the landlord’s control was involved only to the extent that a bullet flew through the common hallway. Given this fact, we believe that defendant did not have any liability at all. See and compare Williams, supra at 499; Samson, supra at 407 ; Johnston, supra.
Even assuming that the argument and shooting would have occurred in the hallway and a security guard would have broken up the argument or taken Blakely’s weapon from his apartment, we find Williams’ public policy rationale persuasive despite the existence of footnote 17 in that opinion. To the extent that Samson suggested the landlord might hire a guard to protect tenants from the foreseeable criminal acts of another tenant’s invitee, we believe that it was implicitly overruled by Williams. To hold otherwise would shift to the landlord the duty of providing private police protection. Nonetheless, we believe that a landlord remains liable to the extent that foreseeable criminal acts are facilitated by his failure to keep the physical premises under his control rea *98 sonably safe (e.g., poor locks) or in good repair (e.g., broken locks). See Johnston, supra. Such allegations were not made in this case.
Furthermore, we note that this assault occurred between tenants rather than between a tenant and an unknown or known criminal assailant. Certainly a security guard would generally be hired to protect tenants from outsiders rather than other tenants or the landlord’s employees. See Morgan v Dalton Management Co, 117 Ill App 3d 815, 819; 454 NE2d 57, 61 (1983). In any event, plaintiff testified that he had no prior problems with Blakely and defendant testified that tenants who were drinking might get in squabbles and call the police to quell their disputes.
We now turn to the issue of whether defendant is liable under the theory of respondeat superior.
An employer is liable for the intentional tort of his employee if the tort is committed in the course and within the scope of the employee’s employment. Burch v A & G Associates, Inc, 122 Mich App 798, 804 ; 333 NW2d 140 (1983), lv den 418 Mich 928 (1984). An employer is not liable, however, if the employee does the act while engaged in the employer’s work, but outside of his authority. Id. For example, an employee may act to gratify some personal animosity or to accomplish some purpose of his own. Id. While the issue of whether the employee was acting within the scope of his employment is generally for the trier of fact, the issue may be decided as a matter of law where it is clear that the employee was acting to accomplish some purpose of his own. Id. at 805.
In Burch, the plaintiff was robbed and assaulted by a taxicab driver after having paid his fare. This Court held there was no basis upon which a jury could find that the employee was furthering his master’s business.
*99 Burch relied on Martin v Jones, 302 Mich 355 ; 4 NW2d 686 (1942), in reaching its conclusion. In Martin , the plaintiff had an argument with a gasoline station manager concerning, among other things, the fact that the manager had improperly placed bulk oil in the plaintiff’s vehicle. As the argument continued, the manager shot the plaintiff with a gun. The jury found for the plaintiff and the trial court granted the employer’s motion for a judgment notwithstanding the verdict, ruling in part that the shooting was a deliberate act and did not arise out of the course of the manager’s employment. Our Supreme Court affirmed, holding that the manager had not shot to protect his employer’s property, that the shooting did not further the employer’s business in any way, and that it was not one of the manager’s duties to be armed. While noting that the argument arose over the sale of oil, part of the manager’s duties, our Supreme Court held that the shooting did not further the employer’s business. The Court stressed that in cases holding an employer liable for the acts of his servant, the employee could in some way have been held to have been promoting his master’s business or else the employee’s duties included the duty of carrying a firearm.
1 Restatement Agency, 2d, § 229, p 506, provides:
(1) To be within the scope of the employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.
(2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered:
*100 (a) whether or not the act is one commonly done by such servants;
(b) the time, place and purpose of the act;
(c) the previous relations between the master and the servant;
(d) the extent to which the business of the master is apportioned between different servants;
(e) whether or not the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant;
(f) whether or not the master has reason to expect that such an act will be done;
(g) the similarity in quality of the act done to the act authorized;
(h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant;
(i) the extent of departure from the normal method of accomplishing an authorized result; and
(j) whether or not the act is seriously criminal.
All these factors are used to determine whether it is just that the loss resulting from the servant’s act should be considered one of the normal risks to be borne by the business in which the servant is employed. Comment f to this section provides that the fact that the act done is a serious crime is a factor indicating that it is not in the scope of employment.
1 Restatement Agency, 2d, §231, p 512, provides:
An act may be within the scope of employment although consciously criminal or tortious.
However, part of comment a to that section explains:
The fact that the servant intends a crime, especially if the crime is of some magnitude, is consid *101 ered in determining whether or not the act is within the employment, since the master is not responsible for acts which are clearly inappropriate to or unforeseeable in the accomplishment of the authorized result. The master can reasonably anticipate that servants may commit minor crimes in the prosecution of the business, but serious crimes are not only unexpectable but in general are in nature different from what servants in a lawful occupation are expected to do.
A chauffeur, driving on an errand for his master, who knowingly drives on the left-hand side of the street or exceeds the speed limit, is still acting within the scope of employment. Likewise, a gardener using a small stick in an assault upon a trespassing child to exclude him from the premises may be found to be acting within the scope of the employment; if, however, the gardener were to shoot the child for the same purpose, it would be difficult to find the act within the scope of employment. So, if a servant is directed to use any lawful means to overcome competition, the bribery of employees of the competitor, or the circulation of malicious stories, might be found to be within the scope of employment, while the murder of the competitor, although actuated solely by zeal for the master, would not be. [Emphasis supplied.]
1 Restatement Agency, 2d, § 235, p 520, provides:
An act of a servant is not within the scope of employment if it is done with no intention to perform it as a part of or incident to a service on account of which he is employed.
Comment c to that section provides:
The fact that an act is done in an outrageous or abnormal manner has value in indicating that the servant is not actuated by an intent to perform the employer’s business. [Emphasis supplied.]
*102 The illustration to that comment explains:
A is employed to eject trespassers. A boy of four seeks to enter the premises. A could easily prevent the child from so doing by calling to him. Instead, he shoots at the child and kills him. This evidence indicates that A was not actuated by an intent to perform his master’s business and hence that his act was not within the scope of his employment.
See Perez v Zazo, 498 So 2d 463 (Fla App, 1986), where the court held that the defendant landlord’s motion for a directed verdict should have been granted when the building’s manager stabbed a tenant three times after the tenant asked to have the hot water turned on, a chronic complaint. The court did not see how any purpose of the landlord was furthered by attempting to eliminate the tenant. See also Wellman v Pacer Oil Co, 504 SW2d 55 (Mo, 1973), where the court held that a gasoline station attendant who shot a patron during a dispute over damage allegedly done to the patron’s car was not acting within the scope of his employment as a matter of law because his actions were so outrageous, criminal, and excessively violent.
Having reviewed this state’s cases, we believe them to be in line with the principles contained in the above-quoted passages in the Restatement Agency, 2d. Michigan cases have imposed liability on employers whose servants committed simple batteries while repossessing property, collecting money from a patron, or ejecting a patron from a bar. Stewart v Napuche, 334 Mich 76 ; 53 NW2d 676 (1952); Guipe v Jones, 320 Mich 1 ; 30 NW2d 408 (1948); Moffit v White Sewing Machine Co, 214 Mich 496 ; 183 NW 198 (1921); Zart v Singer Sewing Machine Co, 162 Mich 387 ; 127 NW 272 (1910). Hence, when an employee commits a minor crime, *103 a jury question arises as to whether that employee was acting within the scope of his employment.
Our Supreme Court has also held that where a night watchman, who carried a revolver, killed someone he believed was going to do damage to his employer’s property, it was for the jury to determine whether he was acting in the scope of his employment. Cook v Michigan Central R Co, 189 Mich 456 ; 155 NW 541 (1915). Thus, when an employee commits a serious crime involving excessive violence, his action is unexpectable unless that employee is expected to use such force in the normal course of his duties, such as when the employee is authorized by his employer to carry a weapon. Compare Cook, supra, where a jury question was raised because the employee was a night watchman who carried a weapon in the course of his duties, with Martin, supra, where as a matter of law the employer was held not vicariously liable for the shooting committed by a gasoline station manager whose duties did not include carrying a firearm. Consequently, when an employee commits a serious crime involving excessive violence, the court should hold as a matter of law that that employee was not acting within the scope of his employment unless the previously discussed exceptions apply.
In this case, viewing the facts in the light most favorable to the plaintiffs, Blakely was the manager of defendant’s building and, therefore, had the authority to use reasonable force to protect defendant’s property. See, e.g., People v Doud, 223 Mich 120, 129-131 ; 193 NW 884 (1923). However, Blakely shot plaintiff after an argument concerning plaintiff’s alleged prior tampering with a fire escape door. We note that, although plaintiff claimed that he was working on his own apartment door just before the shooting, he acknowl *104 edged that the dispute was over the fire escape door. Thus, Blakely, who did not carry a weapon in the normal course of his duties and was not authorized to carry a weapon by defendant, shot plaintiff even though plaintiff was not tampering with the fire escape door. Compare Cook, supra, where the employee was a night watchman who carried a weapon in the course of his duties. Even assuming that shooting plaintiff would have prevented his ability to tamper with the fire escape door in the future, we hold that Blakely was not acting within the scope of his employment as a matter of law when he used deadly force upon plaintiff. Again, such a serious crime is unexpectable where defendant, as the employer, had no reason to foresee Blakely’s action because Blakely did not carry a weapon in the course of his duties and he was not explicitly or implicitly authorized to carry a weapon. Moreover, even assuming that Blakely shot plaintiff for working on his own apartment door, we likewise hold that Blakely was not acting within the scope of his employment as a matter of law when he used deadly force upon plaintiff. We note that plaintiff withdrew his allegation that defendant had negligently hired Blakely.
Hence, we reverse the circuit court’s denial of defendant’s motion for a directed verdict.
Reversed.
Gribbs, J., concurred.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9735671. Public record. Not legal advice.