*1 Aрp v DEPARTMENT OF CORRECTIONS WESTERVELT Rapids. 15, 1978, at Grand Submitted June No. 77-5075. Docket Decided November 1978. Reformatory Westervelt, Michigan at an at the William inmate against Michigan Ionia, brought suit in the Court of Claims Fontz, Department Dale Warden of Corrections injury allegedly reformatory, damages suffered for for inmates, claiming injuries by the result were assault other negligence. An accelerated the defendants’ only. granted to Dale Fontz dismissal was as defendant govern- Dеpartment later raised the defense of Corrections judgment, immunity by way a mental of motion Claims, Breigh- granted by B. the Court of Martin which was ner, appeals, alleging of Cor- that the J. Plaintiff defense, governmental immunity and that reсtions waived his within either defective claim falls exception or the nuisance governmental immunity. Held: governmental immunity An defense was not waived. 1. The by amendment as well as affirmative defense be raised is to be treаted as the initial answer and if so raised Although the defense was filed, judgment, timely not a raised in motion for accelerated to hear such a motion. trial court discretion injuries does claim caused other inmates 2. Plaintiffs governmen- fall within [2] [3, [1] [4] [6] [7] Rule of 57 Am Jur Am61 No Reference No Reference 5] 58 Am as result of nuisance. 56 101, 150. 57 Am Jur municipal Jur Jur 2d, Pleading 2d, 2d, References 2d, Municipal, School, Municipal, Nuisance § functions § for Points 308. School, 32. ALR2d 1415. from apрlicable liability and State in Headnotes State personal Tort acts Tort Liability injury or death performance Liability 293. §§ of Corrections immunity. tal The thrust of the is to redress structural fault or failure to maintain *2 exception governmental applies 3. immunity The nuisance to intentional, negligent, to nuisances. Plaintiffs claim is upon negligent based maintenance of a nuisance. Affirmed. J., T. Burns, M. dissented. He would hold that the pled bring complaint facts which his within the defective governmental immunity to and is therefore entitled to the merits of his claims. He also would hold plaintiffs alleges concerning claim of nuisance facts dangerous condition, created, plain- and that the tiff is entitled a trial on the merits of that issue.
Opinion op the Court Pleading Pleadings. 1. —Affirmative Defenses —Amendment may by An party’s affirmative defense be raised amendment of a pleadings court, by allowed leave of the even if not raised in party’s complaint. initial to the answer Judgment Pleadings. 2. Motions —Accelerated —Amendment by hearing A trial err court did not a defendant’s motion for judgment upon governmental immunity accelerated based timely brought which was not because had the defendant properly by raised the defense means of amendment to its pleadings by the defense would have been treated as Negligence—Governmental Immunity 3. Tоrts — —Public Build- ings —Correctional Facilities —Inmates—Statutes. injury public fact that an building occurs in a does not in bring injury building of itself within the defective exception statute; condition to the an injured inmate of a allegedly correctional institution who was excep- other inmates not invoke the defective condition provide adequate tion supervision for failure to because the exception thrust of the is to redress for building structural fаult or failure to maintain a (MCL691.1406; 3.996[106]). MSA Immunity Exceptions. 4. Nuisance —Torts—Governmental — immunity applies A nuisance to inten- negligent tional but not nuisances. Opinion of the Court M. T. Immunity Negligence—Governmental Build- —Public 5. Torts — ings Facilities —Inmates—Statutes. —Correctional public building and an inmate is a is a A public purposes creates of the statute which member of injury governmental immunity an occurs where dangerous of a of defective or as the result (MCL691.1406; 3.996[106j). MSA Immunity— Judgment Judgment 6. —Governmental —Accelerated Buildings Public —Statutes. grant to the A trial court’s plaintiff, improper an inmate who was where inmates, pled injured by allegedly facts which his fellow building excep- complaint his would within (MCL 691.1406; tion to 3.996[106j). Intentionаlly Created Nuisance 7. in Fact — Nuisance —Nuisance *3 of Fact. —Question against Department inmate who his suit A in the maintenance a nuisance Corrections hearing is entitled to a in which he was incarcerated аllegations; there was a nuisance in of his whether merits was created are whether that nuisance fact and questions for the trier of fact. (by L. Cholette, & Buchanan Kenneth Perkins Block), plaintiff. Attorney Kelley, General, A. Robert
Frank J. Chap- Derengoski, General, Rebecca Solicitor and Attorney General, McClear, man Assistant defendant. P.J., E.
Before: D. Jr., Holbrook, W. JJ. Burns Valkenburg,* Van Appellant, D. E. an inmate at P.J. Holbrook, Jr., Reformatory, sexually Ionia claims he was at- * Appeals by assign- judge, sitting Former circuit on the Court 6, Í963, pursuant in 1968. to Const art 23 as amended ment 1978] of Corrections Opinion Court resulting physical inmates, tacked emotional partment other
injury. аgainst Suit was filed the De- alleging of Corrections and Dale Fontz plaintiffs injuries that were the result of defend- negligence. ants’
filed its answer but did not raise the defense of governmental by immunity. Such defense was raised judgment of a
means approximately plain- four months later. Thereafter attempted complaint tiff to amend his to include allegation the case fell within the immunity, 3.996(106). 691.1406; MCL The motion to granted although amend was never the claims thеrein contained were examined the trial court. Thereafter defendant’s motion for acceler- granted. appeals ated Plaintiff right.
Plaintiff claims that failure raise the defense responsive in the first pleading disagree. constitutes waiver. We provides
GCR
111.3
defenses
as-
responsive pleading
waived,
serted in the
are
while
permits
pleadings
GCR
118.1
amendment of
leave of the court. Affirmative defenses
be
by amendment,
rаised
even if not
Fyke
initial
Co,
answer. Ben P.
&
Sons Gunter
(1973). Clearly,
Defendant raised a as through judg- defense a motion for accelerated being brought ment. Said motion not within timе 108.2, set GCR it must be considered 108.7(2) grants a motion out of time. GCR court discretion to hear motions out of time. Co, Guastello v Citizens Mutual Ins Mich App 788 Opinion of the Court (1968). This discretion 120; 160 NW2d App judgment made for accelerated motiоns applies Manufactur- time other motions. well as as out of Co, Covenant Investment Co v ers Construction (1972). appel- While 123; 204 NW2d App Mich means of amend- proceeded by have lee should the merits of hearing оn answer with a ment to its 1963, 116.3, simi- claim, GCR prescribed as a defense since would have occurred lar results is treated pleading responsive raised by The trial motion for aby for acceler- hearing in the motion not err court did govern- that determination or its ated had not been waived. mental this case falls within contends Appellant im condition defective 3.996(106). 691.1406; reject We MCL munity. occurred injury that an The fact argument. of itself does nоt excep condition the defective that within injury Dist, 25 Southfield-Lathrup School v Cody tion. Plaintiffs 33; 181 NW2d App Mich than the inmates rather caused by were injuries condi of defective allegation His physical structure the physicаl in effect a claim tion is not be ade inmates could designed was so invoke Plaintiff cannot supervised. quately provide failure to excep the thrust of supervision since adequate redress tion is maintain fault оr failure structural 63 App County, building. Lockaby Wayne the case Such was hot 185; 234 NW2d here. im- contention that
Plaintiffs without is unconstitutional munity 545; 254 Detroit, merit. White *5 Dept by M. Burns, Dissent T. J. See Thomas v of State NW2d Highways, 1; NW2d 530 respect plaintiffs With nuisance claim it is upon maintaining operating based and the Ionia in a Reformatory fashion hazardous to the in- This in light mates. claim fails even of the Michi- gan Supreme Court’s decision in Gerzeski v Dept of State Highways, NW2d 525 (1978). Gerzeski held that the nuisance applies to intentional negligent but not nuisances. The in claim predicated instant case was upon negligently maintaining a nuisance. costs,
Affirmed. interpretation No of a statute involved. Valkenburg,
W. Van J., сoncurred. agree Burns, I cannot (dissenting). J. plaintiff’s complaint the claims raised in are sub- ject summary dismissal the court on the basis of and, therefore, dissent.
In Count III of his complaint, amended plaintiff "facility designed, con- structed, operated maintained in dangerous and defective condition in that it did not provide for constant and unobstructed observation of all areas personnel” supervisory and that dangerous "was facility in that it physically sepa- rated the and potentially dangerous in- from mates observation and supervision by the staff”. In opinions, recent two a five-member majority1 Fitzgerald’s point question discussed IIB of Justice opinion Manistique in Pichette v Public Schools. The Chief Justice Fitzgerald. signed opinion Justice Levin authored Justice Moody Fitzger- joined part Justices of Justice Williams opinion opinions. separate in their own ald’s 86 by T. M. rejected thе Court has Supreme our present placed so-called construction former narrow immu- buildings exception *6 3.996(106) 691.1406; MSA in MCL contained nity Manistique Public v Pichette Court. (1978), Schools, 269 143 268; NW2d Mich 403 Hospital, 403 County General Wayne Tilford v (1978). Instead, 153 the Court 293; 269 NW2d Mich placed "upon the stated public places”. maintain safe duty the agencies is Pichette, at facility public 285. A a correctional a building an inmate is member v of Dep’t Green See, of this statute. рurposes 459, 464; 192 Corrections, 386 Mich 491 NW2d facts which his com pled Plaintiff has the inter statutory plaint within a Supreme claiming the Court. He is preted by negligence in the building, not mere defect the inmates in the of supervision prove сan Whether he is provide for observation
which does not constant whether, to be building, or shown a defective defective, was the of his cause See, Lockaby to be at trial. something is shown 185, 191; 63 Wayne County, App Miсh 234 NW2d (1975) (N. J., dissenting part), J. Kaufman, Claims, gtd, lv Mich 814 Court of dismissing complaint, by summarily dismissal, confusing are majority, affirming of legal fact-finding roles of the Court is on the merits Claims. Plaintiff entitled building allegations. of the defective disagree analysis I majority’s with the Similаrly, plaintiff’s claim of nuisance in Count IV what complaint. There be a variance between but prove, can plaintiff alleged has and what he facts concerning a "dangerous condition” "intentionally created” even if those precise words are used. Under the opinions2 in Rosario v City Lansing, 124; (1978), and Gerzeski v NW2d 230 Dep’t State Highways, 149; 525 (1978), NW2d proceedings further should be held in the Court of Claims. Whether there was nuisance fact and whether that nuisance was intentionally created questions are of fact for the trier of fact and not questions of law for a court.
I would reverse and remand for further proceed- ings in the Court Claims. majority opinion casеs, Since there was no in either of the cited applicable See, rule to be drawn from them is unclear. Affiliated —
FM Highways, Ins Co v of State — (1978). least, very NW2d At the no bar *7 fact, to an position created nuisance set forth Moody Justices and Williams.