Alling v. Target Corporation

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DANNICA ALLING,
Plaintiff,
v.
TARGET CORPORATION,
Defendant.
___________________________________/
Case No. 1:25-cv-1128
Hon. Hala Y. Jarbou
OPINION
Plaintiff Dannica Alling brings this suit against Defendant Target Corporation based on an
incident at a Target store in which another customer recorded Alling in a changing room. Alling
brings a premises liability claim under Michigan law, as well as claims for deceptive trade practices
under the Michigan Consumer Protection Act, Mich. Comp. Laws § 445.901 et seq., invasion of
privacy, negligent supervision and training, negligent infliction of emotional distress, and
intentional infliction of emotional distress. Before the Court is Target’s motion for judgment on
the pleadings (ECF No. 9). The Court will grant the motion and dismiss the case because Michigan
law does not impose liability on merchants for failing to anticipate the criminal acts of others.
I. BACKGROUND
Alling alleges that another customer, Christian Randall, secretly recorded her while she
was changing clothes in a Target fitting room on or about August 15, 2022. (Compl. ¶ 7, ECF
No. 1-1.) Randall was subsequently convicted of capturing a disturbing image of an unclothed
person, Mich. Comp. Laws § 750.539d. (Id. ¶ 8.) Alling argues that Target should have recognized
that the design of its fitting rooms makes it possible for customers to look around or over the stall
barriers, and should have foreseen that people would exploit this design to view or record others
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who were changing. (Id. ¶¶ 9–13.) Alling points to various incidents in which customers at Target
or other stores have been caught recording women in changing rooms. (Id. ¶¶ 18–19.) She alleges
that Target should have adopted designs used by other stores that prevent people from seeing into
adjacent stalls, including raising the height of the stalls. (Id. ¶¶ 12–13.) Furthermore, she alleges
that the August 2022 incident has caused her significant distress and anxiety in the years since it
occurred, and she seeks damages from Target for the trauma caused by the incident. (Id. ¶¶ 15–
16.) Alling initially filed this suit in Kalamazoo County Circuit Court, and Target removed it to
this Court.
II. LEGAL STANDARD
The Court reviews motions for judgment on the pleadings under the same standard as it
reviews motions to dismiss under Rule 12(b)(6). Oakland Tactical Supply, LLC v. Howell
Township, 103 F.4th 1186, 1191 (6th Cir. 2024). “[A]ll well-pleaded material allegations of the
pleadings . . . must be taken as true, and the motion may be granted only if the moving party is
nevertheless clearly entitled to judgment.” Id. at 1191–92 (quoting Warrior Sports, Inc. v. NCAA,
623 F.3d 281, 284 (6th Cir. 2010)). Thus, “[a] motion brought pursuant to Rule 12(c) is
appropriately granted when no material issue of fact exists and the party making the motion is
entitled to judgment as a matter of law.” Brown v. Louisville-Jefferson Cnty. Metro Gov’t, 135
F.4th 1022, 1030 (6th Cir. 2025) (alteration in original) (quotation marks omitted). “The court
may consider documents attached to the pleadings, documents that are referred to in the pleadings
and are integral to the claims, and matters of public record without converting a motion for
judgment on the pleadings to a motion for summary judgment.” Id. (cleaned up).
III. ANALYSIS
The Court’s jurisdiction to hear this case derives from diversity of the parties. See 28
U.S.C. § 1332. “Under the Erie doctrine, federal courts sitting in diversity apply state substantive
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law.” Gasperini v. Ctr. for Humans., Inc., 518 U.S. 415, 427 (1996). Thus, this Court is bound to
follow “the controlling decisions of the state supreme court.” Allstate Ins. Co. v. Thrifty Rent-A-
Car Sys., Inc., 249 F.3d 450, 454 (6th Cir. 2001). “[W]here [state] appellate courts have spoken
in the Supreme Court’s absence, [federal courts] will normally treat those decisions . . . as
authoritative absent a strong showing that the [state] Supreme Court would decide the issue
differently.” Auburn Sales, Inc. v. Cypros Trading & Shipping, Inc., 898 F.3d 710, 715 (6th Cir.
2018) (cleaned up). Because this Court sits in Michigan, it applies Michigan choice-of-law rules
to determine what substantive law applies to this case. See Miller v. State Farm Mut. Auto. Ins.
Co., 87 F.3d 822, 824 (6th Cir. 1996). The parties do not dispute that Michigan choice-of-law
rules require the application of Michigan law here, where a Michigan resident experienced harm
at a Michigan store. See Sutherland v. Kennington Truck Serv., Ltd., 562 N.W.2d 466, 471 (Mich.
1997) (outlining Michigan’s tort choice-of-law rules).
Under Michigan premises liability law, “a merchant has no obligation generally to
anticipate and prevent criminal acts against its invitees.” MacDonald v. PKT, Inc., 628 N.W.2d
33, 38 (Mich. 2001). This is “because, as a matter of public policy, we should not expect invitors
to assume that others will disobey the law.” Id. at 39. In MacDonald, the Michigan Supreme
Court rejected its previous case law suggesting that past crimes committed by patrons could make
it foreseeable that future customers would commit similar crimes. See id. (“To the extent that, in
Goodman, we relied upon evidence of previous shootings at the bar in assessing whether a
reasonable jury could find that the Goodman plaintiff’s injury was foreseeable, we now disavow
that analysis . . . .”). Instead, the Court held that “a merchant’s only duty is to respond reasonably”
if there is “a risk of imminent and foreseeable harm to an identifiable invitee.” Id. In other words,
a merchant does not need to anticipate that customers will commit crimes, but it must act once it
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becomes clear that a crime is about to occur. And “as a matter of law, fulfilling the duty to respond
requires only that a merchant make reasonable efforts to contact the police.” Id.
MacDonald forecloses Alling’s premises liability claim because Target had no legal duty
to expect that its customers would criminally record others in changing rooms. This is true
regardless of the similar incidents that have occurred at other stores. Target’s only duty was to
contact the police once it became aware of Randall’s criminal acts, and there is no allegation here
that Target violated that duty. Alling does argue that “Target failed to take any action to prevent
the dissemination of private images once Randall was provided the opportunity to capture them”
(Pl.’s Resp. Br., ECF No. 17, PageID.137), but she provides no explanation of what Target could
or should have done to prevent Randall from disseminating the images.
Alling attempts to distinguish MacDonald on the basis that it, unlike this case, involved “a
sudden, eruptive act of violence.” (Id., PageID.131.) Alling thus argues that MacDonald supports
a finding of liability here because it “explicitly limit[s] the no-duty rule to sudden violent assaults
and reaffirm[s] liability where the harm arises from conditions created by the defendant.” (Id.)
To the contrary, nothing in MacDonald limits its no-duty rule to unexpected violent acts. In fact,
MacDonald says the opposite: “A merchant should not be expected to anticipate any type of
criminal activity, whether ‘random’ or otherwise, before there is some specific activity on the
premises creating a foreseeable risk of imminent harm to an identifiable invitee.” 628 N.W.2d at
343. And while merchants may be liable for conditions that they create, MacDonald entails that
the crimes of third parties do not qualify as conditions created by a merchant.
Alling also argues that MacDonald “reaffirm[s] that foreseeability is ordinarily a jury
question.” (Pl.’s Resp. Br., ECF No. 17, PageID.131.) True, but MacDonald indicates that cases
like this one should not go to the jury because where “overriding public policy concerns exist . . .
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the question of reasonable care is one that [the court] will determine as a matter of law.” 628
N.W.2d at 39. Alling additionally contends that Chen v. Hillsdale College, 150 F.4th 735 (6th Cir.
2025), supports the principle that a foreseeable crime can create liability for an institution. But
there the Sixth Circuit merely reiterated MacDonald’s holding that an “imminent and foreseeable”
attack can create liability. Id. at 742 (emphasis added) (quoting Graves v. Warner Bros., 656
N.W.2d 195, 202 (Mich. Ct. App. 2002)). Here, Alling does not allege that Target had reason to
foresee a specific, imminent crime that Randall was about to commit.
Alling cites McClung v. Wal-Mart Stores, Inc., 270 F.3d 1007 (6th Cir. 2001), for the
proposition that a merchant must protect its customers from reasonably foreseeable crimes, even
before any crime becomes imminent. But McClung applied Tennessee law, and thus has no
bearing on whether Michigan law imposes such a duty. See id. at 1011 (“The question [of whether
the defendant owed a duty of care] is governed by Tennessee state law.”). Alling also cites Z-Gem
Co. v. Dollar Rent-A-Car, 406 F. Supp. 2d 867 (W.D. Tenn. 2005), another case applying
Tennessee law, Hernandez-Butler v. Ikea U.S. East, LLC, 435 F. Supp. 3d 816 (S.D. Ohio 2020),
a case applying Ohio law, and Doe v. AE Outfitters Retail Co., No. WDQ-14-508, 2015 WL
9255325 (D. Md. Dec. 17, 2015), a case applying Pennsylvania law. Even if these cases are taken
as expressing general principles of tort law, general principles cannot override the state-specific
rules expressed by the Michigan Supreme Court. Along the same lines, Alling also argues that the
Restatement suggests that merchants can be liable for the crimes of third parties. See Restatement
(Second) of Torts § 344. But the Restatement is not a binding source of legal authority, and it
provides no basis for this Court to deviate from the explicit rule set out by the Michigan Supreme
Court.
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In short, Alling fails to state a claim for premises liability (Count I). Alling also fails to
state a claim for negligence (Counts I and VIII), invasion of privacy (Counts II and III), negligent
infliction of emotional distress (Count V), and intentional infliction of emotional distress (Count
VI), because each of these counts attempts to impose liability on Target for failing to anticipate a
patron’s criminal acts. Although Alling does not characterize these counts as premises liability
claims, her characterization is not binding on this Court, and mere labels cannot be used to evade
the principles applicable to premises liability law. See Buhalis v. Trinity Continuing Care Servs.,
822 N.W.2d 254, 258 (Mich. Ct. App. 2012) (negligence claim against merchant is more properly
characterized as premises liability claim), overruled in part on other grounds by Kandil-Elsayed
v. F & E Oil, Inc., 1 N.W.3d 44 (Mich. 2023). Alling’s claim for negligent supervision and training
(Count IV) also fails because insofar as Target lacked a duty to prevent customers from committing
crimes, it also lacked a duty to train its employees to prevent customers from committing crimes.
And Alling cannot proceed on a respondeat superior theory (Count IX) because Target cannot be
vicariously liable in the absence of a duty to Alling. See Krass v. Tri-Cnty. Sec., Inc., 593 N.W.2d
578, 584 (Mich. Ct. App. 1999) (“Simply put, therefore, if Baldini, Inc., owed no duty to Steven
G. Krass as its business invitee, then neither, on a derivative basis, did Tri–County.”).
Alling also brings a claim for deceptive trade practices under the Michigan Consumer
Protection Act (MCPA) (Count VII), alleging that Target falsely represented that its changing
rooms were safe. The MCPA prohibits “unfair, unconscionable, or deceptive methods, acts, or
practices in the conduct of trade or commerce.” Mich. Comp. Laws § 445.903(1). Alling argues
that “Target marketed its fitting rooms as safe and private” (Pl.’s Resp. Br., PageID.141), but the
complaint contains no allegations as to any such marketing. The only pertinent allegation in the
complaint is that Target “fail[ed] to disclose that the stalls are insufficient to protect [customers’]
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reasonable expectation of privacy.” (Compl. ¶ 36.) In the absence of an affirmative representation
as to the safety of the fitting rooms, the MCPA’s prohibition on “[f]ailing to reveal a material fact,
the omission of which tends to mislead or deceive the consumer, and which fact could not
reasonably be known by the consumer,” could potentially apply. Mich. Comp. Laws
§ 445.903(1)(s). But a claim under that provision would fail for two reasons.
First, that provision applies solely to omissions of facts that “could not be reasonably
known by the consumer.” Id. Alling’s only specific allegation as to the flaws in the design of
Target’s fitting rooms is that “[t]he stalls were built at a height that made it easy for individuals in
adjacent stalls to record over or around them.” (Compl. ¶ 12.) The height of the stalls and the
potential risks of people looking over them are reasonably discoverable by consumers, and thus
cannot be the basis of MCPA liability. See Zine v. Chrysler Corp., 600 N.W.2d 384, 398 (Mich.
Ct. App. 1999) (§ 445.903(1)(s) does not apply if “the consumer could reasonably be expected to
discover the omission at issue”).
Second, Alling’s claim falls outside the general scope of the MCPA. “In determining
whether an action is proper under the MCPA, courts must examine the nature of the conduct
complained of case by case and determine whether it relates to the entrepreneurial, commercial, or
business aspect of” the defendant’s activities. Nelson v. Ho, 564 N.W.2d 482, 486 (Mich. Ct. App.
1997). The Michigan Court of Appeals first expressed this limiting principle in the context of
claims against medical providers based in part on concerns uniquely implicated by that profession,
see id. at 486, but the court has subsequently applied the “entrepreneurial, commercial, or business
aspect” requirement in non-medical contexts, see Woodman v. Kera, LLC, 760 N.W.2d 641, 658
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(Mich. Ct. App. 2008)1; Anderson v. A-1 Bar-B-Q Foods, Inc., No. 219532, 2001 WL 685782, at
*3 (Mich. Ct. App. June 15, 2001). Applying that requirement here, Alling fails to state a claim
because Target’s alleged omissions as to the safety of the fitting rooms were not sufficiently related
to any economic transaction. Target did not sell access to the fitting rooms; rather, it provided free
access to the rooms in connection with its actual business, which is the sale of goods. Target’s
representations as to the fitting rooms would not affect a consumer’s decisions as to its sale of
goods, so those representations fall outside the scope of the MCPA.
If the contrary were true—that is, if businesses were liable under the MCPA for failing to
disclose risks as to the safety of their facilities—then the MCPA would swallow the entire field of
premises liability. Michigan courts have adopted limiting constructions of the MCPA in order to
avoid similarly absurd results. For instance, when a plaintiff sued an inflatable slide operator for
falsely representing that the slide was safe, the Michigan Court of Appeals dismissed the MCPA
claim, reasoning that “[t]he gravamen of plaintiff's claim is negligence because the allegations
center on the way defendant operated the slide, not the manner by which it solicited or advertised
its business.” Woodman, 760 N.W.2d at 658; see also Nelson, 564 N.W.2d at 486 (limiting scope
of MCPA liability because “we do not think the MCPA was meant by the Legislature to be an
alternative to its specific statutory scheme addressing medical malpractice claims”). Similarly,
Alling cannot proceed under the MCPA because her claim more accurately sounds in premises
liability.
1 The Woodman panel produced a lead opinion and two concurrences, but all three agreed on the disposition of the
MCPA claim. See 760 N.W.2d at 658 (Bandstra, P.J., concurring); id. at 660 (Schuette, J., concurring).
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IV. CONCLUSION
For the reasons explained above, Alling fails to state a claim under Michigan law, and
Target is entitled to judgment on the pleadings. An order and judgment will enter in accordance
with this Opinion.
Dated: January 13, 2026 /s/ Hala Y. Jarbou
HALA Y. JARBOU
CHIEF UNITED STATES DISTRICT JUDGE
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