Where a complaint was filed seeking to hold the defendants liable for the acts of an employee who was convicted of sexually assaulting a guest at a resort, the trial court’s decision to award the defendants summary disposition should be upheld because they had had no reason to foresee that their employee would commit a sexual assault.
“Plaintiffs, Ashley O’Neal and Jeremy O’Neal, appeal by leave granted an order granting summary disposition under MCR 2.116(C)(10) to defendants MCC Mecosta, LLC; MCC Mecosta Tullymore Resort, LLC; MCC Gold Courses, LLC; and MCC Holdings, LLC (collectively, ‘defendants’).
“In 2015, Daniel Carlson became a co-general manager of the Tullymore Golf Resort in Mecosta County. Carlson’s aunt, Joann Ministrelli, was the other co-general manager. Defendants, along with Joann’s husband, Peter Ministrelli, owned the resort. Carlson was convicted of sexually assaulting a guest at the resort during a Halloween party on October 29, 2016. … After the criminal case, plaintiffs sued Carlson for committing the sexual assault and sued defendants under theories of negligence and respondeat superior. The trial court granted summary disposition to defendants, concluding that they had had no reason to foresee that Carlson would commit a sexual assault.
“On appeal, plaintiffs contend that the trial court erred by granting defendants’ motion for summary disposition, arguing that they presented a genuine issue of material fact regarding whether the assault was foreseeable.
“Accordingly, to summarize, while plaintiffs have presented admissible evidence that Carlson engaged in inappropriate conduct that made guests uncomfortable, nothing about that conduct made it reasonably foreseeable that Carlson would sexually assault a guest. … Plaintiff’s entire argument rests on the idea that, in hindsight, Carlson’s inappropriate conduct can be pieced together in a way that suggests the sexual assault in this case was foreseeable, and that defendants should have pieced the information together and then acted to avoid the sexual assault. Such an argument runs directly against our Supreme Court’s directive that courts must avoid transforming ‘the test of foreseeability into an ‘avoidability’ test that would merely judge in hindsight whether the harm could have been avoided.’ … Put simply, defendants could not reasonably have anticipated that Carlson’s conduct — his partying, excessive drinking, lingering, or giving guests complimentary alcohol and room upgrades — would culminate in a sexual assault.”
O’Neal v. MCC Mecosta LLC; MiLW 08-106400, 9 pages; Michigan Court of Appeals unpublished per curiam; Rick, J., Boonstra, J., O’Brien, J.; on appeal from Mecosta Circuit Court; Daniel V. Barnett for appellant; Jessica Fleetham for appellee.
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