Michigan’s Third-Party-Crime Rule Bars Fitting-Room Design Claims Based on Criminal Voyeurism

1. Introduction

This decision addresses whether a retailer’s duty to maintain reasonably safe premises includes a duty to design fitting rooms to prevent customers from committing criminal voyeurism. Applying Michigan law, the Sixth Circuit held that the plaintiff could not avoid Michigan’s restrictive rules governing third-party crime by characterizing inadequate privacy protections as a dangerous property condition, negligent design, or deficient employee training.

Dannica Alling was changing in a fitting-room stall at a Target store in Portage, Michigan, when another customer, Christian Randall, positioned his phone above the adjoining partition and photographed her. After noticing a camera-like reflection, Alling immediately alerted a Target employee, who promptly contacted the police.

Randall admitted photographing Alling and another customer that day. He was subsequently convicted of two offenses under Mich. Comp. Laws § 750.539d. Alling then sued Target, alleging that its fitting-room arrangements failed to protect customers against foreseeable invasions of privacy.

The central legal distinction was between anticipating and preventing crime, which Michigan generally does not require of merchants, and responding to a known, immediate criminal threat, which can trigger a limited duty to expedite police involvement. Because Alling’s allegations concerned prevention, and Target promptly called the police once notified, the court found no actionable breach of duty.

The opinion is principally a new application of established Michigan doctrine to fitting-room privacy, not the creation of a new statewide tort rule. That distinction is particularly important because the decision is an unpublished federal appellate opinion applying state law.

2. Summary of the Opinion

Procedural history

Alling filed her action in Michigan state court. Target removed it to federal court and moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). The district court granted the motion, concluding that Michigan law did not impose the preventive duties Alling asserted. The Sixth Circuit exercised jurisdiction under 28 U.S.C. § 1291 and affirmed.

Principal holdings

• No general preventive duty: A merchant need not anticipate third-party crime merely because similar criminal conduct is foreseeable.
• No design-based circumvention: Alleging that fitting-room partitions facilitated voyeurism did not establish an independent duty to prevent that crime.
• No expanded duty from voluntary protection: Providing privacy stalls or employee safety measures did not make Target responsible for ensuring that those measures prevented every criminal intrusion.
• The applicable response duty was satisfied: Alling did not dispute that Target promptly called the police after learning of the incident.
• The remaining claims failed independently or were inadequately preserved: The court rejected the privacy theories, rejected the emotional-distress theories as presented, and treated the consumer-protection claim as abandoned.

The negligence-based claims failed at the duty stage. The court therefore did not need to resolve whether a different fitting-room design would have prevented Randall’s conduct or whether Target’s existing design was otherwise unreasonable.

3. Precedents Cited and Their Significance

A. Pleading standards and appellate review

The procedural authorities explain why the dispute could be resolved without a trial. The court accepted properly pleaded facts but independently determined whether Michigan law recognized the alleged duty.

These authorities matter because the court did not reject Alling’s account of the incident. Rather, it concluded that even accepting the relevant allegations, the asserted preventive obligations were not duties recognized by Michigan law.

B. State-law authority and the limits of federal innovation

Miller v. State Farm Mut. Auto. Ins. Co., 87 F.3d 822 (6th Cir. 1996), required the federal court, sitting in diversity, to apply the forum state’s choice-of-law rules. The parties agreed that Michigan substantive law governed.

Auburn Sales, Inc. v. Cypros Trading & Shipping, Inc., 898 F.3d 710 (6th Cir. 2018), supplied the hierarchy of state-law authority. Michigan Supreme Court decisions generally bind the federal court on Michigan law. In the absence of controlling supreme court authority, Michigan appellate decisions ordinarily receive authoritative treatment unless there is a strong showing that the state’s highest court would decide differently.

In re Darvocet, Darvon, & Propoxyphene Prods. Liability Litig., 756 F.3d 917 (6th Cir. 2014), supported applying the agreed governing law and, later, the court’s restrained approach to expanding state-law liability. Together with Combs v. Int'l Ins. Co., 354 F.3d 568 (6th Cir. 2004), it counseled substantial caution before adopting substantive innovations in state law.

These precedents directly influenced the rejection of Alling’s proposed fitting-room-specific duty. The Sixth Circuit’s task was to apply Michigan law faithfully, not to create a broader privacy-protection obligation because it might appear desirable as policy.

C. The basic negligence framework

Kandil-Elsayed v. F & E Oil, Inc., 1 N.W.3d 44 (Mich. 2023), provided the four elements of negligence and premises liability: duty, breach, causation, and harm. It also established that the existence of an actionable duty is a legal question for the court.

Alling relied on the general obligation to protect invitees against unreasonable risks arising from dangerous property conditions. The court did not reject that general obligation. It held that the more specific doctrine governing third-party criminal conduct controlled this dispute.

The court also cited Buhl v. City of Oak Park, 968 N.W.2d 348 (Mich. 2021), as an example involving a raised sidewalk defect, and contrasted that type of inherent physical hazard with the alleged fitting-room defect. The ice condition discussed in Kandil-Elsayed v. F & E Oil, Inc. served a similar illustrative function.

These comparisons raised a question about whether Alling’s theory resembled ordinary dangerous-condition litigation. They were not the decisive holding: the court expressly proceeded to conclude that the third-party-crime precedents defeated her theory even putting that concern aside.

D. The controlling third-party-crime framework

Williams v. Cunningham Drug Stores, Inc.

Williams v. Cunningham Drug Stores, Inc., 418 N.W.2d 381 (Mich. 1988), supplied the foundational principle that a merchant is not an insurer of customer safety. It also supplied the policy distinction between private businesses and government: police protection is a governmental responsibility, not a general obligation that tort law transfers to merchants.

The opinion drew on this precedent to explain why the possibility of crime does not itself impose preventive liability. Crime can occur anywhere, and requiring merchants to guarantee protection would impose responsibilities that exceed their ordinary commercial role.

MacDonald v. PKT, Inc.

MacDonald v. PKT, Inc., 628 N.W.2d 33 (Mich. 2001), was the central authority. It involved injuries caused by sod thrown at a concert venue and established several propositions decisive here:

• A merchant has no general duty to anticipate criminal activity before a specific situation creates an imminent, foreseeable threat to an identifiable invitee.
• Past incidents do not independently create a duty to prevent future crimes.
• When the limited response duty arises, the merchant need do no more than reasonably expedite police involvement.
• Voluntary safety precautions do not make the merchant liable merely because those precautions could have been more effective.

The concert-venue precedent also addressed a proposed design-defect amendment, which the Michigan Supreme Court found futile. The Sixth Circuit consulted the briefing in that case to identify the proposed theory as negligent facility design based on inadequate measures against sod throwing. That supported the conclusion that selecting a different design label did not escape the governing crime rule.

Bailey v. Schaaf

Bailey v. Schaaf, 835 N.W.2d 413 (Mich. 2013), clarified the notice requirement: the premises operator must know of a specific, presently occurring criminal situation posing imminent and foreseeable harm to an identifiable person. Its application in the landlord-tenant setting also demonstrated that Michigan had maintained this restricted approach beyond ordinary retail transactions.

Chen v. Hillsdale College, 150 F.4th 735 (6th Cir. 2025), reinforced the Sixth Circuit’s understanding that both the specific ongoing situation and the identifiable potential victim are required. General knowledge that voyeurism sometimes occurs is materially different from notice that a particular customer faces an immediate threat.

Graves v. Warner Bros.

Graves v. Warner Bros., 656 N.W.2d 195 (Mich. Ct. App. 2002), reinforced that prior instances of the same criminal conduct at the same premises do not establish a duty to anticipate or prevent recurrence. This directly answered Alling’s reliance on allegedly similar earlier incidents.

E. Voluntary precautions do not guarantee protection

Scott v. Harper Recreation, Inc., 506 N.W.2d 857 (Mich. 1993), rejected liability based on a merchant’s advertised security parking. Providing and promoting a protective measure did not amount to a guarantee that it would prevent crime.

The rationale was incentive-based: if businesses that offer some protection face greater liability than businesses offering none, tort law may discourage voluntary precautions. The Sixth Circuit applied that reasoning to Target’s fitting-room privacy arrangements and alleged employee-safety measures. The existence of precautions did not create liability simply because more effective precautions were conceivable.

F. Criminal exploitation of a property defect

Harkins v. Nw. Activity Ctr., Inc., 453 N.W.2d 677 (Mich. 1990) (order), supplied the closest analogy. An assailant entered a community center through a hole in a boundary fence and shot an invitee. The plaintiff asserted that inadequate maintenance facilitated a foreseeable attack.

The Michigan Supreme Court rejected liability because the alleged hazard associated with the hole depended on a third party exploiting it to commit a crime. Requiring protection against that possibility was not meaningfully different from requiring the premises owner to anticipate criminal conduct generally.

The Sixth Circuit applied the same structure to Alling’s claim: insufficiently protective partitions allegedly facilitated foreseeable criminal photography. The important point was not whether the fence or partition was imperfect, but whether the asserted duty was, in substance, a duty to prevent third-party crime.

The opinion relied on the majority’s order for the governing rule and identified factual and argumentative material drawn from Justice Levin’s dissent as such. It also rejected an attempted distinction based on the assailant’s ability to enter through other means, noting Alling’s own acknowledgment that voyeurs could use alternatives such as hidden cameras.

Tillman v. Layle, No. 237389, 2002 WL 31958189 (Mich. Ct. App. Dec. 27, 2002), supplied additional support. It rejected an argument that a premises owner had to construct a porch wall differently to protect against injuries resulting from an assault. The case reinforced that redesign allegations do not necessarily create a duty independent of the criminal act.

G. Relabeling premises claims and extending supervision duties

Kachudas v. Invaders Self Auto Wash, Inc., 781 N.W.2d 806 (Mich. 2010) (order), distinguished ordinary negligence arising from a premises owner’s overt conduct from claims arising from a condition of the land. A plaintiff cannot convert the latter into ordinary negligence merely by changing the claim’s label.

Saunders v. Home Depot, Inc., No. 24-1933, 2025 WL 1591875 (6th Cir. June 5, 2025), applied the corresponding anti-circumvention principle to attempts to avoid Michigan’s restrictions on liability for third-party conduct through ordinary-negligence pleading.

In discussing supervision and training, the court also cited O'Neal v. MCC Mecosta, LLC, No. 356766, 2023 WL 461844 (Mich. Ct. App. Jan. 26, 2023), through Chen v. Hillsdale College, as rejecting a proposed duty concerning crimes committed by a merchant’s own employees. Brown v. Brown, 739 N.W.2d 313 (Mich. 2007), likewise supported the court’s caution about expanding employer liability for criminal conduct.

These employment-related authorities were supplementary. The principal reason Alling’s training theory failed was that she had not established an underlying duty to anticipate Randall’s crime.

4. Legal Reasoning and Application to Alling’s Claims

A. Foreseeability alone did not establish a duty

Alling’s argument emphasized that voyeurism was foreseeable in fitting rooms with partitions that a customer could photograph over. The court’s response was that Michigan distinguishes between a foreseeable possibility and a legally actionable duty to prevent it.

Under the governing precedents, the relevant trigger is notice of a specific, current threat to an identifiable invitee—not merely awareness that a particular form of misconduct can occur. Alling did not allege that Target knew of Randall’s earlier voyeurism that day before he photographed her.

This distinction explains why the allegations of prior similar incidents did not require discovery or trial. Even if accepted, they did not establish the particularized notice required to trigger the limited response duty.

B. The fitting-room condition did not supply an independent preventive duty

Alling sought to separate Target’s conduct from Randall’s by arguing that Target itself selected and maintained the deficient stalls. The court examined the substance of the alleged obligation rather than its description.

The alleged design problem produced the claimed injury through Randall’s criminal exploitation of it. Requiring Target to change that design on this theory would therefore impose the same duty to anticipate and prevent crime that Michigan’s cases reject.

The reasoning did not depend on finding that the fitting rooms were optimally designed. Nor did the court decide that privacy injuries can never support premises liability. Its narrower conclusion was that the particular dangerous-condition and negligent-design theories pleaded here could not bypass the third-party-crime doctrine.

C. Ordinary negligence did not avoid the same limitation

Alling also asserted an independent obligation to provide adequate visual privacy. The court rejected two routes to that conclusion.

First, allegations focused on the condition or design of the premises did not become ordinary-negligence allegations merely because the complaint described Target’s selection or maintenance decisions as negligent conduct.

Second, Target’s provision of privacy stalls did not make it an insurer against criminal intrusion. Applying the voluntary-precaution doctrine, the court held that Alling could not establish liability simply by alleging that the privacy protections should have been more effective.

D. Negligent training and supervision lacked an underlying duty

The complaint alleged that Target failed to train and supervise employees responsible for fitting-room safety. But that theory still depended on requiring employees to prevent criminal activity before the legally required notice existed.

The court found no such duty. Even if Target voluntarily trained employees to deter crime, imperfect training did not establish liability on the preventive theory asserted. The actionable obligation identified in the opinion was the limited obligation to expedite police involvement once the requisite circumstances arose, and Target’s prompt call was undisputed.

The holding should therefore be understood in context: it rejected the particular crime-prevention training theory, not every conceivable negligent-supervision claim against a retailer.

E. Privacy concerns did not justify a new fitting-room exception

Alling urged the court to recognize the sensitivity of bodily privacy and the relative ease of modifying fitting-room designs. Those arguments sought a new duty tailored to spaces where customers necessarily undress.

The court declined to create that exception for two related reasons:

1. Institutional restraint: A federal court applying state law should be cautious about materially expanding the state’s substantive tort rules.
2. Existing state policy choices: Michigan’s highest court had already weighed crime prevention, governmental responsibility, commercial burdens, and incentives for voluntary safety measures.

The court particularly emphasized the concern that broad liability could discourage businesses from operating in high-crime communities and penalize merchants that attempt to provide protection.

Thus, the opinion did not declare bodily privacy unimportant. It held that the asserted importance of privacy did not supply a sufficient basis for a federal court to depart from established Michigan doctrine.

F. Emotional-distress claims failed as presented

Alling’s opening brief did not adequately support challenges concerning intentional and negligent infliction of emotional distress, invasion of privacy, and consumer protection. Federal Rule of Appellate Procedure 28(a)(8)(A) requires supporting legal argument and authorities. Bivens v. Zep., Inc., 147 F.4th 635 (6th Cir. 2025), reinforced that perfunctory treatment does not adequately present an appellate issue.

The court therefore stated that Alling likely forfeited challenges to these remaining dispositions. It nevertheless considered certain arguments raised in her reply brief.

For emotional distress, Alling principally argued that those claims survived because her underlying negligence claims were viable. Once the court rejected that premise, the asserted derivative theories failed too.

This is not a general holding that intentional infliction of emotional distress always requires an underlying negligence claim. It reflects the dependency in Alling’s own appellate presentation.

G. The privacy torts required conduct attributable to Target

Alling invoked two distinct privacy torts, but neither was adequately connected to Target’s own conduct.

• Intrusion upon seclusion: Under Lewis v. LeGrow, 670 N.W.2d 675 (Mich. Ct. App. 2003), the theory required an objectionable method of obtaining information about the plaintiff. Alling did not allege that Target, rather than Randall, obtained information about her in that manner.
• Public disclosure of private facts: Citing Doe v. Henry Ford Health Sys., 865 N.W.2d 915 (Mich. Ct. App. 2014), the court explained that Alling had not alleged Target itself disseminated private information.

The fact that Michigan recognizes independent privacy torts did not make Target responsible for another customer’s privacy invasion. Without the requisite conduct by Target, these theories again amounted to an attempt to impose liability for failing to prevent Randall’s crime.

H. The consumer-protection claim was abandoned

The district court had rejected the Michigan Consumer Protection Act claim on grounds specific to that statutory scheme. Alling did not address that ruling on appeal, so the Sixth Circuit treated the claim as abandoned.

The opinion consequently does not establish a substantive rule that fitting-room privacy disputes are categorically outside the Act. Its appellate disposition of this claim rested on the failure to challenge the district court’s ruling.

5. Potential Impact and Limits

A. Stronger resistance to design-based crime-prevention claims

The decision provides persuasive guidance for disputes alleging that a physical layout facilitated criminal conduct. Courts applying Michigan law may look beyond terms such as “dangerous condition,” “negligent design,” or “inadequate supervision” and ask whether the asserted obligation is substantively one of preventing third-party crime.

The opinion’s significance lies in joining the defective-fence precedent with the concert-venue design discussion and applying both to a privacy-sensitive retail setting.

B. Greater importance of specific notice allegations

Future pleadings must distinguish historical risk from actual knowledge of an immediate threat. Allegations of prior crimes or generally vulnerable premises will not, under this reasoning, substitute for the required notice of a present situation threatening an identifiable person.

A materially different case could involve allegations satisfying that notice requirement and an unreasonable delay in obtaining police assistance. The opinion does not decide such a case.

C. Protection for voluntary precautions, not approval of every design

The decision reinforces the principle that merchants should not face expanded preventive liability merely because they offer some protection. It does not certify Target’s fitting-room design as best practice, nor does it establish that privacy-enhancing changes are unnecessary.

Legal duty and desirable design are separate questions. The court resolved the former under the tort theories presented.

D. Continued distinction between direct misconduct and failure to prevent another’s misconduct

The privacy analysis leaves an important boundary intact: a claim that the defendant itself obtained or disclosed private information differs from a claim that it failed to prevent someone else from doing so. The allegations here supported only the latter theory against Target.

E. Limited precedential reach

Because the opinion was not recommended for publication and applies existing state law, its principal broader value is persuasive. It should not be described as a new binding pronouncement by the Michigan Supreme Court or as blanket immunity for merchants whenever criminal conduct contributes to an injury.

The holding remains tied to the duties asserted, the absence of alleged advance notice of Randall’s conduct, and Target’s undisputed prompt police response.

6. Complex Concepts Simplified

Duty

A legally recognized obligation to act or refrain from acting. An injury and a possible preventive measure do not automatically establish such an obligation.

Breach

A failure to meet an existing legal obligation. Here, the court first found that the preventive duty Alling asserted did not exist.

Premises liability

Liability associated with dangerous conditions on property. Calling something a property defect does not necessarily avoid special rules governing criminal conduct.

Invitee

A person present for a purpose connected with the property operator’s business, such as a retail customer.

Foreseeability

The ability to anticipate a risk. Michigan’s crime rule requires more than general foreseeability before imposing the limited response duty discussed here.

Identifiable invitee and imminent harm

A particular person facing an immediate threat arising from a specific situation, rather than an undefined possibility that some customer might someday be harmed.

Judgment on the pleadings

A ruling that resolves the case on the pleadings because the law does not permit recovery even accepting the relevant well-pleaded facts.

De novo review

Independent appellate review of a legal issue without deference to the district court’s conclusion.

Diversity jurisdiction

A basis for federal jurisdiction over qualifying disputes between citizens of different states. The federal court ordinarily applies the governing state substantive law.

Forfeiture and abandonment on appeal

The loss of appellate consideration through inadequate argument or failure to challenge a ruling. Such a disposition does not necessarily establish a new substantive rule about the underlying claim.

7. Conclusion

Dannica Alling v. Target Corp. applies Michigan’s established third-party-crime doctrine to criminal voyeurism in retail fitting rooms. Alleged deficiencies in design, privacy protections, and training did not create a general duty to anticipate and prevent another customer’s crime.

The decisive distinction is between preventing a generally foreseeable crime and responding reasonably to a specifically known, immediate threat. Alling alleged the former, while Target undisputedly satisfied the police-response obligation once notified. The decision therefore affirms the existing limits of Michigan tort liability without minimizing the seriousness of the underlying privacy invasion.