329 N.W.2d 34 | Mich. Ct. App. | 1982
GATEWOOD
v.
CITY OF DETROIT
Michigan Court of Appeals.
Richard A. Lenter, for plaintiffs.
Dennis Burnett, Assistant Corporation Counsel, City of Detroit, for defendant.
Before: BRONSON, P.J., and R.M. MAHER and M. WARSHAWSKY,[*] JJ.
M. WARSHAWSKY, J.
Plaintiffs appeal from an order of Wayne County Circuit Court which granted defendant's motion for summary judgment under GCR 1963, 117.2(1).
Plaintiffs seek damages for the destruction of personal property and fixtures resulting from a fire. Plaintiffs allege in their complaint that a fire started in a house adjacent to theirs in Detroit on March 11, 1980. When Detroit firefighters arrived and connected their equipment to a nearby fire hydrant, the complaint alleges, the "fire hydrant was totally defective in failing to provide adequate water to fight said fire". By the time an adequate supply of water was obtained, the fire had spread to plaintiffs' home and destroyed its contents.
Plaintiffs allege a cause of action in implied contract. They allege that for a number of years they have made payments to defendant for water used at their residence. Pursuant to an implied contract, the complaint alleges, "Defendant was obligated to supply plaintiff with sufficient water to meet the needs of his residential property as well as to supply water to available fire hydrants *59 so that plaintiff would have adequate fire protection."
A Motion for summary judgment under GCR 1963, 117.2(1) is tested on the pleadings alone. Ledsinger v Burmeister, 114 Mich App 12, 17; 318 NW2d 558 (1982); Trommater v Michigan, 112 Mich App 459, 463; 316 NW2d 459 (1982); Palomba v East Detroit, 112 Mich App 209, 215; 315 NW2d 898 (1982); Cole v Dow Chemical Co, 112 Mich App 198, 202; 315 NW2d 565 (1982). The motion tests the legal sufficiency of a claim as it appears in the pleadings. Mitchell v Dep't of Corrections, 113 Mich App 739, 741; 318 NW2d 507 (1982). All well-pleaded facts and inferences fairly drawn are accepted as true. Bromley v Citizens Ins Co of America, 113 Mich App 131, 134; 317 NW2d 318 (1982). The question is whether the claims are so unenforceable as a matter of law that no factual development can justify a right to recovery. Ken Cowden Chevrolet, Inc v Corts, 112 Mich App 570, 572; 316 NW2d 259 (1982).
Plaintiffs allege breach of an implied contract. They intend to set up an implied contract whereby the defendant suffered an obligation to provide sufficient water to fight a fire. Thus, by reason of the alleged failure to supply sufficient water, plaintiffs argue, defendant breached the implied contract.
We do not hesitate in holding that an obligation to supply water to fight a fire cannot be implied from the relationship between a city water department and a ratepayer. See Atlas Finishing Co v Hackensack Water Co, 10 NJ Misc 1197; 163 A 20 (1932); Reimann v Monmouth Consolidated Water Co, 9 NJ 134; 87 A2d 325 (1952). City water customers pay for water used in their residences. From that, however, we cannot imply an obligation *60 to supply sufficient water to fire hydrants to fight fires. See Anderson v Iron Mountain Water Works, 225 Mich 574; 196 NW 357 (1923).
Summary judgment was correctly granted to defendant.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
