BELMONT v FOREST HILLS PUBLIC SCHOOLS
Docket No. 53112
114 MICH APP 692
Decided April 6, 1982
Submitted December 7, 1981, at Grand Rapids. Leave to appeal applied for.
- Because the plaintiffs’ claim of negligent supervision is as to the operation of а public school, the trial court properly disposed of that claim by granting summary judgment to the defendant school district on the basis of governmental immunity.
- The trial court did not err when it granted the defendant
REFERENCES FOR POINTS IN HEADNOTES
[1] 57 Am Jur 2d, Municipal, School, and State Tort Liability § 73. Modern status of doctrine of soverеign immunity as applied to public schools and institutions of higher learning. 33 ALR3d 703.
[2] 73 Am Jur 2d, Summary Judgment §§ 26, 27.
[3] 47 Am Jur 2d, Jury §§ 15, 16.
[4-7] 57 Am Jur 2d, Municipal, School, and State Tort Liability §§ 145, 150-155. Tort liability of public schools and institutions of higher learning for accidents due to condition of buildings or equipment. 34 ALR3d 1166.
Affirmed.
T. M. BURNS, P.J., dissented. He believes that the question of whether safety devices should have been designed and utilized to attach chalkboard erasers to the chalkboard was a question of material fact that should have been left to the trier of fact. He would reverse and remand the сase for a trial.
OPINION OF THE COURT
1. SCHOOLS — GOVERNMENTAL IMMUNITY — TORTS — STATUTES.
The operation of a public school is a governmental function and a governmental agency so engaged is immune from tort liability (
2. MOTIONS AND ORDERS — SUMMARY JUDGMENTS — ISSUE OF MATERIAL FACT — COURT RULES.
A motion for summary judgment on the ground that there is no genuine issue as to any material fact tests whether there is factual support for a claim and is to be tested by the pleadings, affidavits, depositions, admissions and other documentary evidence available to the court and is properly granted only where it is impossible for the claim asserted to be supported by evidence at trial (GCR 1963, 117.2[3]).
3. JURY — ISSUE OF MATERIAL FACT.
A material fact is an ultimate fact issue upon which a jury‘s verdict must be based.
4. STATES — GOVERNMENTAL TORT LIABILITY ACT — DEFECTIVE BUILDINGS.
Governmental agencies are subject to liability for a dangerous or defective condition of a public building without regard to whether it arises out of a failure to repair and maintain; a building may be dangerous or defective because of improper design, faulty construction, or the absence of safety devices (
5. STATES — DEFECTIVE PUBLIC BUILDINGS — GOVERNMENTAL IMMUNITY — PUBLIC PLACE.
The defective public buildings exception to governmental immu-
DISSENT BY T. M. BURNS, P.J.
6. STATES — GOVERNMENTAL TORT LIABILITY ACT — DEFECTIVE BUILDINGS.
Injuries resulting from a defective or dangerous condition of a public building do give rise to a cause of action against the governmental agency charged with the obligation to repair and maintain that public building (
7. STATES — GOVERNMENTAL TORT LIABILITY ACT — DEFECTIVE BUILDINGS.
It is for a trier of fact to determine whether a building or room is defective in fact and, if so, whether the defect was the cause of the plaintiff‘s injuries for purposes of applying the defective public building exception to governmental immunity (
Varnum, Riddering, Wierengo & Christenson (by Thomas J. Mulder and Richard W. Butler, Jr.), for plaintiffs.
Nelson & Kreuger, for defendant Forest Hills Public Schools.
Before: T. M. BURNS, P.J., and R. B. BURNS and M. J. KELLY, JJ.
M. J. KELLY, J. Plaintiffs appeal by leave granted from a Kent County Circuit Court order granting summary judgmеnt, GCR 1963, 117.2(3), to defendant Forest Hills Public Schools on the basis of governmental immunity,
On October 24, 1974, David Belmont, then an eighth-grade student at Forest Hills Junior High School, sustained a serious eye injury when he was
In their complaint, plaintiffs alleged that Forest Hills Public Schools had been negligent in failing to supervise the classroom properly and that the classroom was unsafe, in violation of
The defendant school district moved for summary judgment, GCR 1963, 117.2(3), claiming that there was no genuine issue as to any material fact and that it was therefore entitled to judgment as a matter of law pursuant to the statute providing for governmental immunity,
On appeal, plaintiffs argue that the operation of a public school is not a governmental function within the meaning of the statute providing for governmental immunity,
Plaintiffs also argue that issues of materiаl fact exist precluding summary judgment on plaintiffs’ claim under the public building exception to governmental immunity,
The building exception to the statute providing for governmental immunity,
Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agenciеs are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual
or constructive knowledge of the defect and, for a reаsonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition.
The interpretation of this exception has undergone recent revision by the Michigan Supreme Court.
In Pichette v Manistique Public Schools, 403 Mich 268; 269 NW2d 143 (1978), the plaintiff was injured when using a slide in the defendant‘s schoolyard. The Supreme Court held that
The Supreme Court further expanded the dеfective building exception in Bush v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268 (1979). In Bush, a student was injured when a gas burner exploded in a classroom which was being used as a temporary science laboratory. The plaintiff argued that the improper design of the classroom аnd absence of safety devices rendered it unsafe as a science classroom. Agreeing with the plaintiff, the Supreme Court held that a building may be dangerous or defective because of improper design, faulty construction or the absence of safety devices. Id., 370. The Court went on to state that the question of whether a part of a building is dangerous or defective was to be determined in light of the uses or activities for which it is specifically assignеd. Id., 731. The Court held that the trier of fact should determine whether the room was defective when used as a physical science classroom
Finally, in Vargo v Svitchan, 100 Mich App 809; 301 NW2d 1 (1980), lv gtd 411 Mich 1035 (1981), the plaintiff was injured while lifting weights during a high school football summer camp. Interpreting the recent Supreme Court cases, this Court established a two-part inquiry to determine the applicability of the defective building exception. First, the injury must occur in a public place. Second, it must be determined if the public place was fit for its assigned and intended use. Id., 821. Applying this standard, the Court found that the weightroom where plaintiff was injured did not qualify as a defective building under the statute. Id., 822.
Plaintiffs’ minor son, David Belmont, wаs injured when one of his schoolmates hit him in the eye with a chalkboard eraser while they were in a classroom. The classroom was a public place which was being used as a homeroom for the students. The classroom was fit for use as a homeroom and was not dangerous or defective. The danger in this case arose from the fact that a group of eighth-grade students were left unsupervised and not from any condition of the classroom. The trial court did not err when it granted defendant‘s motion for summary judgment.
Affirmed.
R. B. BURNS, J., concurred.
T. M. BURNS, P.J. (dissenting). Respectfully, I dissent. Injuries resulting from a defective or dangerous condition of a public building do give rise to a cause of action against the governmental agenсy charged with the obligation to repair and maintain
Plaintiffs argue that the injuries sustained in this case were the result of a defect in the design of a classroom. Specifically, plaintiffs claim that the injuries were a direct result of the failure of the defendant school to provide safety devices for attаching chalkboard erasers to the chalkboards in the classroom. Whether such safety devices should have been designed and utilized is a question of fact. Many persons reasonably may contend that the absence of suсh safety devices does not give rise to a cause of action. However, it was inappropriate for the trial judge to decide this question on a motion for summary judgment. The motion involved a question of material fact that should have been left to the jury.
I dissent and would reverse and remand this cause for a trial.