Burrill v. State, Docket No. 78-62

• Decision Date: 23 May 1979
• Docket Number: Docket No. 78-62
• Citation: 282 N.W.2d 337,90 Mich.App. 408
• Parties: Sarah Mar Dula BURRILL, Administratrix of the Estate of Clifford Burrill, Deceased, Plaintiff-Appellant, v. The STATE of Michigan, one of the sovereign states of the United States, Defendant-Appellee. 90 Mich.App. 408, 282 N.W.2d 337
• Court: Court of Appeal of Michigan — District of US

Page 337

282 N.W.2d 337

Sarah Mar Dula BURRILL, Administratrix of the Estate of Clifford Burrill, Deceased, Plaintiff-Appellant,

v.

The STATE of Michigan, one of the sovereign states of the

United States, Defendant-Appellee.

Docket No. 78-62.

90 Mich.App. 408, 282 N.W.2d 337

Court of Appeals of Michigan.

May 23, 1979.

Rehearing Denied July 18, 1979.

Released for Publication Aug. 22, 1979.

[90 MICHAPP 409] Temple & Cutler by Ronald M. Cutler, Southfield, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William K. Basinger, Asst. Atty. Gen., for defendant-appellee.

[90 MICHAPP 410] Before CAVANAGH, P. J., and BASHARA and D. E. HOLBROOK, Jr., JJ.

PER CURIAM.

Plaintiff appeals from an order granting summary judgment in favor of defendant, pursuant to GCR 1963, 117.2(3).

Plaintiff's decedent, Clifford Burrill, was a blind vendor who operated a concession stand in the Wayne County Department of Social Services building. On December 5, 1974, after closing his stand and leaving work, Burrill was robbed and stabbed to death in the parking lot area adjacent to the facility by an unknown assailant.

Plaintiff brought an action alleging that defendant was negligent in maintaining and repairing a public building, and for allowing a dangerous condition to exist. Specifically, plaintiff claimed defendant failed to provide proper and necessary security guard services.

In the motion for summary judgment, defendant claimed that the plaintiff had failed to allege facts in avoidance of governmental immunity or otherwise state a claim upon which relief could be granted.

Plaintiff admits the existence of the doctrine of governmental immunity, but claims that the pleadings raise genuine issues of fact as to whether this case falls within one or more of the statutory exceptions.

Plaintiff first contends that defendant's immunity from suit has been abrogated by maintaining a dangerous and defective building pursuant to M.C.L. § 691.1406; M.S.A. § 3.996(106):

"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[90 MICHAPP 411] 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 reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonable necessary to protect the public against the condition."

A prerequisite of liability is that it be shown that the defendant was an owner, a lessee, or in control of the premises in question. See Mobil Oil Corp. v. Thorn, 401 Mich. 306, 258 N.W.2d 30 (1977); Lipsitz v. Schechter,377 Mich. 685, 687-8, 142 N.W.2d 1 (1966); Samson v. Saginaw Professional Building, Inc., 393 Mich. 393, 224 N.W.2d 843 (1975).

An examination of the lease and the affidavit of the director of the Michigan Department of Social Services, Business Services division, shows that the building in question is leased to Wayne County by another corporate entity. The duty to provide office space for the various departments of social services rests with the county and not the state. M.C.L. § 400.45; M.S.A. § 16.445.

The defendant clearly had no owner's or lessee's interest and thus no control of the premises.

Whether there is a genuine issue as to a material fact is determined by examining the affidavits, pleadings, depositions, admissions and documentary evidence filed in the action. Durant v. Stahlin, 375 Mich. 628, 135 N.W.2d 392 (1965).

GCR 1963, 116.4 requires the affidavits be made on personal knowledge and set forth with particularity such facts as would be admissible as evidence to establish or deny the grounds set forth.

An answer must consist of more than mere denials, conclusionary language and conjecture as plaintiff's answer does. Dionne v. Pierson Contracting Co., 2 Mich.App. 134, 139, 138 N.W.2d 555 (1965); Burroughs Corp. v. Detroit, 18 Mich.App. 668, 675, [90 MICHAPP 412] 171 N.W.2d 678 (1969). Real evidentiary support is required. Zimmerman v. Stahlin, 374 Mich. 93, 97, 130 N.W.2d 915 (1964). The trial judge properly granted summary judgment as to this issue.

Plaintiff's next claim seems to involve an alleged breach of contract concerning security guard services which forms the basis of a third-party-beneficiary theory. It is unclear upon what contract and with whom plaintiff bases this claim. When an action is based on a written contract, it is necessary to plead and produce the contract. GCR 1963, 113.4, Stocker v. Clark Refining Corp., 41 Mich.App. 161, 199 N.W.2d 862 (1972).

Plaintiff has failed to come forward with any evidence to support her claim. The numerous allegations and supporting documents compiled in plaintiff's brief were never presented to the Court of Claims. This Court's review is limited to the record in the trial court. GCR 1963, 812.

Plaintiff also contends that the fee collected by the state from blind vendors constitutes a proprietary function and invalidates any governmental immunity.

The pertinent statute, M.C.L. § 691.1413; M.S.A. § 3.996(113) states:

"The immunity of the state shall not apply to actions to recover for bodily injury or property damage arising out of the performance of a proprietary function as herein defined....