*1
405 Mich 716
716
AREA SCHOOLS
BUSH v OSCODA
4).
(Calendar
7,
Argued
1978
No.
Docket No. 59242.
March
Decided
9,
February
1979.
[7]
[1,
[5,
[3]
[8]
[4]
Tort
Tort
Tort
57 Am Jur
Tort
Tort
Tort
Modern status of
Tort
Tort
Rule of
57
68 Am Jur
6]
57 Am Jur
57 Am Jur
2]
ALR3d 1179-1188.
for accidents
86 ALR2d 532.
for accidents due to conditions of
ALR3d 1191-1204.
premises. 35 ALR3d 987-993.
ALR3d 1178-1180.
for accidents
ALR3d
86 ALR2d 530-533.
death
for accidents
726.
public
59-62.
86 ALR2d 549.
313, 314.
of
§§
Am Jur
68 Am Jur
Am Jur
Am Jur
57 Am Jur
150, 155.
liability
liability
liability
liability
liability
liability
liability
accidents due
municipal immunity
as result of nuisance. 56
schools and
1177.
2d, Negligence
2d, Negligence
2d,
2d,
2d,
2d, Municipal,
2d,
References
of
of
of
of
of
of
2d,
Schools §§
due
Municipal,
Municipal,
private
public
public
due
due to condition
public
public
public
Municipal,
2d,
Schools
Doctrine
functions
institutions of
to condition of
Municipal,
condition
schools and institutions
schools
schools
schools
schools
schools
schools
schools
condition
323, 324.
for Points
§§
7.§
§
School,
School,
110.
School,
School,
of
323,
from
as
and institutions
and institutions
and institutions of
Sovereign
and institutions
and institutions of
of
ALR2d 1433-1435.
324.
School,
applicable
and State Tort
and State
liability
buildings, equipment,
of
of
higher learning.
institutions
institutions
buildings
buildings
buildings
buildings
State
Headnotes
State Tort
Immunity
for acts in
Tort
Tort
State Tort
of
personal
of
of
of
or
Liability
Liability
higher
higher learning.
higher learning.
Liability
higher
higher
higher learning
higher
higher learning
Liability
equipment. 34
equipment.
equipment. 34
equipment.
performance
ALR3d 710-
applied
or outside
injury
learning
learning.
§
§
learning
Liability
learning
314.
162.
§§
§§
53,
34
or
Schools
v Oscoda
Bush
Bush,
Tracey-Ann
next friend of
for herself and as
Annie M.
Tracey-
Foxworth,
damages
injuries
brought
an action for
jug
explosion
in a
of wood alcohol
in an
Ann suffered
Schools,
superintend-
against
Area
its
classroom
Oscoda
*2
teacher,
Manning
ent,
Filppula,
Gaye
a school
A.
and
T. C.
Court, Allan C.
principal,
The Iosco Circuit
William F. Estes.
Miller, J., granted summary judgment
on
for the defendants
Appeals,
immunity.
grounds
governmental
The Court of
of
Peterson, JJ.,
writing
P.J.,
each
Kelly,
Bronson and
and
J.M.
Manning
part, deciding
separately,
that defendants
reversed
[9]
[10]
[11,
[13]
[14]
[15]
[16]
[17]
[18]
57 Am Jur
Modern status
57 Am Jur
Modern status
Modern status of doctrine
Tort
Tort
Modern
Municipal immunity
68 Am Jur
Tort
Personal
24 Am Jur
307.
57 Am Jur
public
public
§§
86 ALR2d 499.
public
27, 28, 32, 59, 73.
for
ALR3d
public
68 Am Jur
16.
16, 18, 31,
for accidents due
ALR3d
57 Am Jur
57 Am Jur
57 Am Jur
employees
57 Am Jur
Am Jur
Am Jur
38, 39, 77, 312.
liability
liability
Am Jur
liability
accidents due to condition
57 Am Jur
schools
schools and institutions
schools
schools
status of doctrine
1166.
1166.
liability
2d, Negligence 7.§
2d,
2d,
2d,
2d, Municipal,
2d, Dismissal,
32, 59,
2d,
2d,
2d, Municipal,
2d,
of
2d, Municipal,
2d,
2d, Municipal,
Public Officers
Schools §
Schools 321.
of doctrine of
of doctrine of
and institutions
and institutions of
and institutions
negligence.
public
public
Municipal,
public
Schools §§
Municipal,
ALR2d 499.
Municipal,
2d, Municipal,
60.
from
to condition of
§
schools and
schools and institutions
schools
321.
Discontinuance,
liability
School,
320, 321.
School,
1174.
School,
School,
of
of
School,
School,
and
School,
sovereign immunity
sovereign immunity
sovereign
sovereign immunity
and institutions of
of
of
of
Employees 287.
School,
for torts.
higher
higher
higher
higher
and State
and
and State
institutions of
and State Tort
officers,
and State Tort
buildings
buildings
State Tort
State Tort
State Tort
learning.
learning.
learning.
learning.
and State Tort
and Nonsuit §§
60 ALR2d 1199.
§
or teachers
Tort
Tort
of
Liability
Liability
Liability 155.
higher
Liability
higher
33 ALR3d
higher
33 ALR3d
34 ALR3d
Liability
Liability
equipment. 34
equipment. 34
as
as
as
as
Liability
ALR3d 710.
applied
applied to
applied
applied
53,
learning.
or other
Liability
learning
learning
§
§
§
§§
§§
155.
55.
155.
§§
711.
769.
714.
§§
306,
1-3,
11-
building of to whether it arises out a failure without to building dangerous repair may A be or defective and maintain. construction, design, faulty improper of the absence because devices. exceptions general grant providing statutory 2. In torts, Legislature liability immunity to from intended upon gov- protect general public injury by imposing from ,public places. agencies ernmental to maintain safe classroom, part building, in a is Whether a this case a dangerous light the uses is to determined in be specifically assigned, a which it is in this case activities for physical may A be for one use or science class. safe unnecessary purpose, ordinarily but not another. It classrooms, laboratory safety equipment the room install but had, use, physical injury a in which occurred become Therefore, aof science classroom. it had to meet the standards physical although a mathematics science room it had once been room. the room was 3. The trier of fact must determine whether and, so, physical if used classroom defective when science injuries. Tracey whether the defect was cause Foxworth’s
Conceding classroom conduct would that the course of yet laboratory, dangerous properly equipped it is even in Bush v Oscoda Schools possible properly equipped that if the room were the accident injuries would not have occurred or the would have been less significance injuries severe. The of the defect in relation to the question is a of fact. governmental agency subject liability 4. A is not for a governmental or defective condition under the tort liability and, knowledge act unless it had of the defect for a acquiring knowledge, remedy reasonable time after failed to protect reasonably necessary the condition or to take action public. question It was thus a of fact whether the school district, knowledge defect, with failed to take action reasonably necessary protect Temporary the students. use of may the unconverted room because of increased enrollment provided appro- have been reasonable the school district took priate protect permanent protective action to the students until provided. measures could be complaint against 5. The the individual defendants was im- properly upon dismissed because it does state claims granted against relief can be them. Moody, concurring part Levin, Justice with Justice dis- concerning sented from the conclusions the individual defend- liability. superintendent, principal, ants’ and the engaged primarily discretionary teacher were activities that government. public by are of essence to The duties owed to the employees any private duty, consequently these transcend they any negligence ordinary are immune as to claim. Moody regard- Chief Justice Coleman concurred with Justice ing of individual defendants. Williams, concurring Levin, part Justice with Justice adopt governmental would a standard for as to performing governmental individuals function in which ultra public employees only vires activities of are the ones not protected governmental immunity because the exercise or discharge governmental function is not involved. Reversed and remanded for trial. Ryan, joined by Coleman,
Justice
Chief Justice
dissented.
1.
determining
The threshold consideration in
whether the
*4
defense of
immunity
applicable
is
is whether the
employees
school
engaged
district and its
were
in
exercise
the
discharge
governmental
Legislature
of a
function. The
in-
Supreme
tended that
the
Court look to the common law for
guidance
consistently
in each case. The Court has
held the
operations
public
comprise governmental
of a
school to
func-
addition,
analysis
complaint
tion. In
an
of the
shows that the
purview
clearly
the
of the
fell within
activities in this case
operation
public
of a
school.
building exception
of the
the
2. The Court construes
governmental agencies
imposing
the
immunity
as
on
statute
places,
that
duty
holds
a school
"safe”
to maintain
assigned
Such a
for its then
use.
classroom must be made safe
exception
square
building
the
not
with
of the
does
construction
immunity
Legislature expressed
the
in
manifest intent of the
policy judg-
Legislature
the
that statute the
made
statute. In
engage
agencies
in
endeavors
ment that state
must
free to
poten-
good unhampered
constraint of
for
the common
grant
exceptions
liability,
to the
out a few
tial tort
carved
people
balancing
of the
of the
interests
persons injured by the
against
tortious
state
the interests of
employees.
agencies
The Court’s construc-
or their
acts of state
exception significantly
building
application of the
tion and
immunity provision by
general
the intent of the
undermines
actually
characterizing
building
the behav-
as a
defect what
using part
employees
of a
district’s
ior of the school
designed,
building
purpose
it
con-
for which was not
for a
building
structed,
A
or classroom is to
or intended to be used.
purpose
it was
for which
be used in accordance with
constructed;
may
designed
to
amount to
failure
do
user,
part
surely
negligence
of the
but
does not consti-
on
plaintiffs’
tute
The essence of the
claim
defective.
improper
allegedly
as a
use of the classroom
relates
despite
physical
laboratory
that it was neither
science
the fact
designed
laboratory
equipped
experiments.' The tortious
nor
dangerous
does not relate
defective
conduct
but, rather,
building,
to the conduct of school
condition in- the
laboratory
utilizing
a room which
as a science
authorities
constructed,
teaching
designed,
equipped
properly
summary judgment
be affirmed.
mathematics. The
should
(1976)
670;
part.
App
See 1-8. headnotes Liability — 10. Schools and School Districts Governmental Tort Negligence Employees. — — Act Public scheduling, superintendent, principal, A school teacher su- conducting engaged pervising, activities were classroom govern- primarily discretionary that are of activities essence ment; public by employees these tran- the duties owed any private duty, consequently they scend immune (MCL negligence any ordinary from claim 3.996[107]). 691.1407;MSA Bush v Oscoda Schools Opinion Concurring Dissenting Part in Part Williams, J. See headnotes 1-8. Immunity — Employees. —
11. States Governmental Public governmental immunity per- The standard toas individuals forming governmental function should one in which ultra public employees only vires activities of are the ones not protected by governmental because exercise or (MCL discharge governmental of a function is not involved 691.1407; 3.996[107]). MSA Dissenting Opinion Ryan, J. — Liability
12. Schools and School Districts Tort Governmental —Act Governmental Function. determining The threshold consideration whether the defense governmental immunity applicable to a school district is employees engaged the school district its were (MCL discharge the exercise or function 3.996[107]). Liability — — 13. States Governmental Tort Act Governmental — Function Common Law. Legislature Supreme intended that Court look to the *7 guidance governmental immunity law common for in each case "governmental to determine what activities constitute a func- (MCL691.1407; 3.996[107]). tion” MSA — Liability 14. School Schools and Districts Tort Governmental —Act Governmental Function. Supreme consistently operations The Court has held the public (MCL comprise governmental school function 691.1407; 3.996[107]). MSA Liability — 15. Schools and School Districts Tort Governmental —Act Governmental Function. Analysis complaint public alleging aof that a student school was injured by reason of classroom that the activities shows activi- complained clearly purview opera- ties of of fell within the the (MCL public 691.1407; 3.996[107J). tion of a school MSA Liability Policy. — — 16. States Tort Act Public Governmental Legislature agencies policy judgment made state the good engage the common in endeavors for free must be unhampered by potential liability, the of tort constraint and op Opinion the Court statutory grant exceptions out to the carved a few against people the the balancing state the interests agen- injured by persons tortious acts of state interests (MCL 691.1402, 691.1406, 691.1405, employees cies or their 3.996[106],3.996[107j). 691.1407; 3.996[102],3.996[105], MSA Liability — Tort and School Districts Governmental 17. Schools Buildings. —Act Defective with the in accordance classroom is to be used A constructed; designed do purpose failure to for it was which user, part may negligence but on amount (MCL691.1406; building surely does not constitute 3.996[106]). MSA Liability — Tort Districts Governmental 18. Schools School Buildings. Negligence — —Act Defective allegedly improper complaint essentially relates A despite laboratory physical as a science use of the classroom designed equipped nor for labora- fact neither that was tory experiments not to a or defective does relate tort condition in the under the act, but, utilizing rather, to the conduct of school authorities designed, laboratory properly a room which was as a science constructed, (MCL teaching equipped for mathematics 3.996[106]). & Wenzel Boyce, Yahne plaintiffs. & Area
Keil Henneke Oscoda defendants Schools. P.C., Huck, Ann
Freel & Gaye for defendants Manning and F. William Estes. Foxworth, J.
Levin, Tracey-Ann then burned when a alcohol dur- jug exploded wood ing physical science class in a school. mother, Bush, Her Annie M. individually friend, against next Oscoda commenced this action Schools, principal superintendent, Area its judge granted classroom teacher. The circuit *8 on summary judgment defendants’ motion for claim complaint that failed to state a ground Bush v Oscoda Schools op Opinion the Court upon granted.1 which relief could be The Court of Appeals affirmed as to the school district and the superintendent principal and reversed as and teacher.2 complaint
We conclude states claims as defendants, to all and remand for trial.
I High Foxworth attended Oscoda School and was Introductory Physical enrolled in Science. The chemistry class had been conducted in the labora- tory, but due to increased enrollment was resched- non-laboratory uled to inmeet room. The chem- istry laboratory equipped was with a shower, hoods, sinks, ventilation or exhaust en- storage stationary laboratory areas, closed desks gas and water and outlets. The substitute room equipped. not so complained The classroom teacher had principal school said3 about the substitute room: She "[y]ou keep sending many cannot us this expect students and us to do work in rooms lab easily. just this size where the tables move too It’s you too crowded”. "When throw more students in * * * [y]ou get that classroom into have more hands to things, more bodies in the small amount of brought 1963, 117.2(1), The motion was under GCR failure to state upon granted. parties stipulated claim which relief can be judge depositions deciding the depositions could consider the motion. The part appeal are a of the record on and are the basis of the facts related in Part I. indicating We do upon not wish to be understood as that even stipulation parties judge may disputed ques- decide factual upon resolving complaint a claim tions in whether a states granted. stipulation permitting relief can be ation of We view the consider- undisputed testimony expansion particularization as an allegations plaintiffs complaint. Schools, 670, 676; App Bush v Oscoda Area 250 NW2d (1976). 1, supra. fn See *9 Opinion of the Court space, People more confusion at times. sometimes bump into each other. You tend to have more occurring just and it’s too clumsiness manage hard to many too students.” Introductory Physical Science is the first science high course offered the experiments school students. The course relatively simple. During the first experiments six to ten weeks the concentrate on measuring. eighth At about the to tenth week the experiments require heat, and burners are used experiments. chemistry laboratory In two students use
gas-fired burners which are connected permanent gas supply. to a installation for the In portable the substitute room alcohol burners were used. chemistry
The alcohol was stored in the lab. A practice developed pouring the alcohol into a plastic jug transport to the substitute class- poured room. Before school the classroom teacher enough jug day’s alcohol into the for the classes. jug put The alcohol and burners were on the rear jug open top. counter. The had Students filled their burners at the counter and took them to their desks. The classroom teacher lit the burners Goggles during experi- at the desks. were worn experiment ment. After the the students were to extinguish the burners and return them to the counter.
At the time of the accident Foxworth was re- turning lighted her burner and noticed burner picked up on the counter. She at- and as she tempted extinguish explosion it an occurred and caught she fire. panicked.
Foxworth Another teacher came into extinguisher, kept the room. The fire which was at opposite given room, end of the put classroom teacher and she out the fire. Bush v Oscoda Schools Opinion op the Court third-degree Foxworth suffered second- burns.
II Plaintiffs contend that the school district is not immune from suit because:
i) tort act4 is unconsti- alternatively, tutional, or, *10 ii) operation "governmen- of a school is not a meaning tal function” within the act, of that and, any event, in
iii) building provi- it is liable under the defective sion5 of the act because the classroom lacked nec- essary safety equipment. opinions6
Three Justices have
in other
indicated
subject
liability
that a school district
is
to
negligence7
operation
in the
of a school and would
unnecessary
therefore find it
complaint
to decide whether the
states a claim within the defective
4
3.996(101)
seq.;
seq.
MCL 691.1401et
MSA
et
3.996(106).
691.1406;
MCL
MSA
equal protection grounds
6 I would hold on
that a school district is
subject
of State
private
Dep’t
same
as a
school. See Thomas v
Highways,
(1976).
14;
398 Mich
The defective relevant part, reads as follows:
“Governmental agencies obligation repair have the public buildings and maintain open agencies under their control when public. for use members of the Governmental injury property bodily are liable for dam- age resulting a from a or defective condition of 3.996(106). building.” MCL
The district provision contends "impose[s] liability only injuries resulting for those in public buildings from defective conditions caused inadequate negligent repairs main- [emphasis original]”. tenance is duty only maintain”, to "repair and and unless that breached there can be no Plaintiffs have liability. "repair not a failure to or maintain” building and have therefore failed to state a cause of action.
In analogous situation involving defective this Court highways, rejected argu- has similar imposed ments. Statutes to duty keep highways "in reasonable repair” and safe and fit "reasonably for travel”.8 It was unsuccessfully [or 'convenient’] 8 governmental agency having jurisdiction highway any "Each over highway repair shall maintain the in reasonable so that it is reason ably public Any person sustaining safe and convenient for travel. bodily injury damage property by any or to his reason of failure of governmental agency keep any highway jurisdiction in to under its repair, travel, reasonably reasonable may agency.” and in condition safe and fit for damages by recover the suffered him from such 3.996(102). .691.1402; MCL language. The source of the statute contained almost identical It ** * imposed on.townships, villages, corporations duty cities or "the keep repair, reasonably they to in reasonable so that shall be safe and * * travel, public (Emphasis public highways convenient all *”. 729 Bush v Oscoda Schools Opinion of the Court
argued that repair” qualifies "reasonable and lim- its "reasonably safe fit for trav- [convenient] el”. Detroit,
In Joslyn
v
458, 459,
74
460;
Mich
42
(1889),
50
NW
the city claimed
it
was not
liable "because the injury did not
result
from a
street”,9
want of repair of the
Finch v
Village
Bangor,
of
149, 150;
133 Mich
As in design, improper defective because of de- safety construction the absence faulty vices. design improper
Plaintiff has ren- devices classroom and absence Co, Road also, v Detroit & Saline Plank See, Carver (1886). 590; 28 NW *13 731 Bush v Oscoda Schools Opinion Court classroom, it dered unsafe as a science and the classroom dangerous was therefore and defective and a cause Foxworth’s injuries.
Ill judges Two Appeals Court of said that "as or particular uses public activities which a thereof, building, part or a assigned, is specifically to provide failure the usual building components and safety appropriate devices to such contem- plated use would actionable under the stat- ute”,12 but affirmed the summary judgment be- "the complaint alleges cause a course of classroom conduct dangerous which would be even in prop- erly equipped laboratory”.13 judge agreed The third with affirmance because Foxworth’s did "injury not result from a defective condition of the build- ing but from the use to which the classroom was put”.14 agree
We
with the
majority
the Court of
Appeals
question
a part
whether
building,
classroom,
this case a
is
or
defective is to be determined in
light
the "uses
activities”
is "specifically assigned”,
it
in this
case
physical
science class. As stated in
Pichette v Manistique
Schools,
Public
(1978)
285;
J.),
To be the lack per se; it is not render the classroom unnecessary laboratory install ordinarily determining In in classrooms. equipment safe, use or is one consider place must be safe for one building may it A purpose serves. A is not not for another. purpose, use but one, but because it is a school because is called con- hospital as one. If a used and functions *14 building must main- be prison, verted into The prison, hospital. not as a safe tained as a safe use injured Foxworth was had room room, and therefore had science physical become room science physical meet the standards room. although it had once been a mathematics must determine whether The trier of fact sci- physical when used as room and, so, if the defect was a ence classroom Conceding that injuries. cause Foxworth’s * * * conduct would alleged "course classroom dangerous equipped in a labora- properly be even if the room were tory”, possible that yet properly the accident would not have equipped occurred or have been less injuries would significance severe. The of the question injuries ques- defect is a relation tion of fact.
IV The school district increased enroll- claimed conducting physical ment science necessitated recognize classes We non-laboratory rooms. change temporary accommoda- circumstances continue may tion must made so that business Bush v Oscoda Schools Opinion op the Court adjustments being while made. In such situa- might change temporarily tions it be reasonable to the use of a or room or in the case of a highway, reroute traffic. governmental agency subject
A is not for a or defective condition unless it knowledge "had actual or constructive of the de acquiring and, fect knowledge, for a reasonable time after remedy failed to the condition or to reasonably necessary protect take action public against ques the condition”.15It was thus a tion of knowledge district, fact whether the school with defect, failed "to take action reasonably necessary protect” the students. Temporary may use of the unconverted room have provided been reasonable the school district took appropriate protect action to the students until permanent protective provide measures could be d.16
V complaint against The the individual defendants ground was dismissed on the a claim that it failed to state upon granted, which relief can be GCR 117.2(1). complaint did state claims *15 against the individual defendants.
We reverse and remand for trial.
Kavanagh JJ., Fitzgerald, concurred with Levin, J. 15 3.996(106). MCL 16Similarly, highway situation, in temporary the when there is a during construction, detour keep highways it is within the city
safe for
natural
travel
the
"must
take into account
the
play
perverse
inclination of children to run about in
and the
grass plats
insistence of adults to cut corners and cross streets and
following precisely
provided path”.
instead of
the beaten or
Jablonski
Bay City, supra, p
v
310.
performing activities primarily discretionary government. are of essence to The duties owed to public by pri- these transcend employees any vate im- duty. Consequently, employees these mune from liability any ordinary as negligence claim. I remand this case would trial as to defendant Oscoda Area Schools. (concurring in with Blair part
Coleman, C.J. J.). holding with I concur Moody, Jr., regarding liability full paragraph second defendants. individual (concurring).
Williams,
parts
I concur
fully
J.
V,
part
I
opinion.
I-IV of Justice
As
Levin’s
immu-
governmental
adopt
would
standard
governmental
nity
performing
as to individuals
Michigan, function as described in McCann v
65, 73-74;
(1976), in
whether,
at
the
Tracey-Ann
time
was
Foxworth
the Oscoda Area
injured,
Schools and its em
engaged
were
in the
ployees
discharge
exercise or
Depart
v
In
Thomas
governmental
of a
function.
ment of
State
398
Highways,
1;
Mich
247 NW2d
(1976),
recognized
530
we
Legislature,
by
failing
statutorily
define the term "governmen
function”,
tal
intended that
this Court
look to the
guidance
determining
common law for
in
governmental
applicable
each
immunity
case.
precedent,
On examination
of case
we find
this Court
consistently
opera
has
held
tions of a
to comprise
governmental
1,
fu nction.2 Sayers v School District No
Frac
tional,
217, 219; 114
(1962);
366 Mich
191
NW2d
District,
v Birmingham
Richards
School
348 Mich
490, 506; 83
Daszkiewicz v De
(1957);
NW2d 643
Education,
troit Board of
212,
301
220;
Mich
3
v Board
(1942);
NW2d 71
Daniels
of Education of
(1916).
Rapids,
Grand
339;
191 Mich
this case alleged Accordingly, of a school. operation gov- within ambit tortious activities function, is ac- for which ernmental 3.996(107). MCL pursuant corded it is complaint, III plaintiffs’ In Count the accident occurred in which the classroom of certain of the lack "defective” reason area, showers, storage equipment such as Plaintiff equipment. laboratory other sinks and classroom avers that condition further "building” exception statutory within the comes immunity. grant in relevant provision, *18 part, provides: obligation repair agencies have the
"Governmental
performance
chemistry experiments
ped
involving
as
of
or
for the
constructed
substances such
use of
hazardous and inflammable
the
extra
alcohol;
and
"(b) scheduling
many
students in the class such
overcrowd-
too
resulted,
congested, storage space
ing
equipment
supplies were
and
impossible;
supervision by
lacking
proper
the
was
and
teacher
was
and
"(c)
large quantity
placing upon
a
of an extra
the rear counter
alcohol,
substance,
damaged
split
and
container
hazardous
had
a
type
originally
and which was not
another
of fluid
contained
designed
open
lamps
dispense
presence
or
flame
alcohol
the
matches, and
"(d)
equipment requirements
ignoring
set out
the
construction
government.”
by the United States federal
Count III
building.
question in
"17.
class in
a
That defendants conducted the
safety
by
safety equipment
a
lack
such as
defective
shower,
reason of the
area,
extinguishers, storage
a
sinks and
fire alarms and
classroom, contrary
complete
MCL 691.1406.”
laboratory equipment
lack
Count IV
quantity
remain
alcohol to
"17. That to allow such a
of inflammable
ignition
might
exposed
upon
open
sources of
be
counter where
abnormal,
spilled
inexperienced
might
was an
students
and
extraordinary
liquid
exceptional
known inflammable
use of a
are
contrary
Act
the defendants
Fire
said
Prevention
damages resulting
explosion.”
strictly
from the
liable for the
Although find the majority approach appealing law, as a I substantive rule of am compelled to dissent because such a construction of the "build- ing” does exception not at all square with the Legislature4 manifest intent of the expressed statute, MCL 3.996(107). 691.1407; MSA
In MCL
3.996(107),
Legisla-
ture undertook
to balance
interests
people of the
of Michigan
State
against
the inter-
of persons
ests
injured by the tortious acts of state
*19
agencies or their
employees,
light of
the
its
sweeping policy judgment
agencies
that state
must
4
Ledge
Schools,
As Mr. Justice Carr said in Jones v Grand
Public
1,
(1957):
11;
349 Mich
327
NW2d
province
is
"It
not within the
of this Court
to read therein a
Legislature
incorporate.
mandate that
the
not
has
seen fit to
Our
apply
tois
the
as
law we find it.”
equally
province
upon
It
pass
is
outside of the
of this
to
Court
the
legislation.
of
Rapids
wisdom
Grand
v
Motor Coach Co Public Service
Commission,
624,
(1949).
634;
common of poten- the constraint Michigan, unhampered balancing proc- In tort service liability. tial exceptions to carved out a few Legislature the ess one of which immunity, grant its at issue today. is rule, exception general to a construing
When from the derogate be taken not care must the its intent rule to extent general Motor Rapids See Grand is undermined. purpose Commission, 323 Co v Public Service Coach (1949). Today’s majority 634; NW2d "building” exception the applies construes the intent of undermines significantly way a which characterizing provision by general the the is behavior building actually defect what utilizing employees the school district’s for building unique of the school portion dangerous purpose, specialized always highly constructed or designed, it was not one which intended to be used. that a build-
Simple logic compels
conclusion
with
is
used in accordance
ing or classroom
to be
con-
designed
it
for which
was
purpose
may
the failure to do that
and that while
structed5
user,
part
on the
negligence
amount
building defective.
constitute
surely does not
parties
agree
In
case all of the
this
and con-
designed
was
question
classroom
a mathematics
classroom.
for use as
structed
in the ab-
"defect”,
finds,
which the majority
of features
in a mathematics
classroom
sence
or science
equipment
peculiar
laboratory
shower,
as a
ventilation
classroom such
renovation,
purpose
one must look
In instances
redesigned
reconstructed.
*20
It is clear from eminently an examination of the plaintiffs’ complaint of plaintiffs’ the essence claim relates to the improper use of the allegedly classroom as a physical science laboratory despite the fact that it designed was neither equipped nor such, for laboratory experiments. As tortious conduct not does relate to a dangerous or but, rather, defective condition in the building the conduct of the utilizing school authorities a science laboratory a room which properly designed, equipped constructed for teaching mathematics.
In concluding today test determin- ing whether a public building is "defective” operating the agency it liable for failure to "main- it, repair” tain and is is safe in view of the use to which it put, the Court does substan- tial violence to the Legislature will as the price of its not so thinly disguised disagreement with the of governmental doctrine immunity.
I would affirm the order of the grant- trial court ing the motion for summary judgment for failure to state a cause of action.
Coleman, C.J., Ryan, concurred with J.