Belmont v. Forest Hills Public Schools, Docket No. 53112

• Decision Date: 28 May 1982
• Docket Number: Docket No. 53112
• Citation: 319 N.W.2d 386,4 Ed. Law Rep. 629,114 Mich.App. 692
• Parties: Jacqueline BELMONT, as next friend of David Belmont, a minor, and Kenneth Belmont, Plaintiffs-Appellants, v. Kelly SWIETER, Henry Swieter, Scott Ross, Wesley M. Ross, and Earl Jarvis, Jr., Defendants, and Forest Hills Public Schools, Defendant-Appellee. 114 Mich.App. 692, 319 N.W.2d 386, 4 Ed. Law Rep. 629
• Court: Court of Appeal of Michigan — District of US

Page 386

319 N.W.2d 386

Jacqueline BELMONT, as next friend of David Belmont, a minor, and Kenneth Belmont Plaintiffs-Appellants, v. Kelly SWIETER, Henry Swieter, Scott Ross, Wesley M. Ross and Earl Jarvis, Jr., Defendants and Forest Hills Public Schools, Defendant-Appellee.

Docket No. 53112.

114 Mich.App. 692, 319 N.W.2d 386, 4 Ed. Law Rep. 629

Court of Appeals of Michigan.

Submitted Dec. 7, 1981.

Decided April 6, 1982.

Released for Publication May 28, 1982.

[114 MICHAPP 694] Varnum, Riddering, Wierengo & Christenson by Thomas J. Mulder and Richard W. Butler, Jr., Grand Rapids, for plaintiffs-appellants.

Nelson & Kreuger, Grand Rapids, for defendant-appellee Forest Hills Public Schools.

Before T. M. BURNS, P. J., and R. B. BURNS and KELLY, JJ.

KELLY, Judge.

Plaintiffs appeal by leave granted from a Kent County Circuit Court order granting summary judgment, GCR 1963, 117.2(3), to defendant Forest Hills Public Schools on the basis of governmental immunity, MCL 691.1407; MSA 3.996(107).

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 [114 MICHAPP 695] struck in the eye by a chalkboard eraser that had been thrown across the room by another student. The incident occurred at about 8 a. m., while the students were in their homeroom. No teacher or other staff member was present at the time.

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 M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106), the public building exception to governmental immunity, because it lacked safety devices for attaching chalkboard erasers to the chalkboards.

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, M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107). The trial court granted the motion.

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, M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107). In recent decisions, this Court has consistently held that the operation of a public school is a governmental function. Everhart v. Board of Education of the Roseville Community Schools, 108 Mich.App. 218, 221, 310 N.W.2d 338 (1981); Smith v. Mimnaugh, 105 Mich.App. 209, 212, 306 N.W.2d 454 (1981); Churilla v. School District for the City of East Detroit, 105 Mich.App. 32, 35, 306 N.W.2d 381 (1981); Deaner v. Utica Community School District, 99 Mich.App. 103, 108, 297 N.W.2d 625 (1980). Because plaintiffs' claim of negligent supervision is as to the operation of a public school, the trial court properly disposed of that claim by granting summary[114 MICHAPP 696] judgment to defendant school district on the basis of governmental immunity.

Plaintiffs also argue that issues of material fact exist precluding summary judgment on plaintiffs' claim under the public building exception to governmental immunity, M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106). GCR 1963, 117.2(3) allows a trial court to grant summary judgment where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. A motion based upon GCR 1963, 117.2(3) is designed to test whether there is factual support for a claim. Partrich v. Muscat, 84 Mich.App. 724, 730, 270 N.W.2d 506 (1978). When passing upon a motion under this subrule, the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence available to it. Id., 730, 270 N.W.2d 506. The courts are liberal in finding that a genuine issue of fact does exist. Rizzo v. Kretschmer, 389 Mich. 363, 372, 207 N.W.2d 316 (1973). The court will give the benefit of any reasonable doubt to the opposing party and the court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome. Id., 372, 207 N.W.2d 316. A material fact is an ultimate fact issue upon which a jury's verdict must be based. Partrich, supra, 84 Mich.App. 730, n.3, 270 N.W.2d 506.

The building exception to the statute providing for governmental immunity, M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106), reads in pertinent part:

"Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies 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 [114 MICHAPP 697] or constructive knowledge of the defect and, for a reasonable 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 N.W.2d 143 (1978), the plaintiff was injured when using a slide in the defendant's schoolyard. The Supreme Court held that M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106) imposed a duty upon governmental agencies to maintain safe public places. Id., 285, 269 N.W.2d 143. Although the slide itself was not a public building or in a public building, the court ruled that the plaintiff had stated a cause of action under the building exception to the statute providing for governmental immunity. Id., 285, 269 N.W.2d 143.

The Supreme Court further expanded the defective building exception in Bush v. Oscoda Area Schools, 405 Mich. 716, 275 N.W.2d 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 and 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., 730, 275 N.W.2d 268. 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 assigned. Id., 731, 275 N.W.2d 268. The Court held that the trier of fact should determine whether the room was...