Bush v. Oscoda Area Schools

Decision Date09 February 1979
Docket NumberDocket No. 59242,No. 4,4
Citation405 Mich. 716,275 N.W.2d 268
PartiesAnnie M. BUSH, next friend of Tracey Ann Foxworth, and Annie M. Bush, Individually, Plaintiffs-Appellees and Cross Appellants, v. OSCODA AREA SCHOOLS and T. C. Filppula, jointly and severally, Defendants and Cross Appellees, and Gaye Ann Manning and William F. Estes, Defendants-Appellants. Calendar405 Mich. 716, 275 N.W.2d 268
CourtMichigan Supreme Court

Boyce, Yahne, Wenzel & White by Richard G. Boyce, Alpena, for plaintiffs-appellees and cross appellants.

Keil & Henneke by Robert P. Keil, Flint, for defendants-appellee-cross appellees.

Freel & Huck, P. C. by Michael N. Freel, East Tawas, for defendants-appellees and appellants.

LEVIN, Justice.

Tracey Ann Foxworth, then 14, was burned when a jug of wood alcohol exploded during a physical science class in a public school.

Her mother, Annie M. Bush, individually and as next friend, commenced this action against Oscoda Area Schools, its superintendent, the principal and the classroom teacher. The circuit judge granted defendants' motion for summary judgment on the ground that the complaint failed to state a claim upon which relief could be granted. 1 The Court of Appeals affirmed as to the school district and the superintendent and reversed as to the principal and teacher. 2

We conclude that the complaint states claims as to all defendants, and remand for trial.


Foxworth attended Oscoda High School and was enrolled in Introductory Physical Science. The class had been conducted in the chemistry laboratory, but due to increased enrollment was rescheduled to meet in a non-laboratory room. The chemistry laboratory was equipped with a safety shower, ventilation or exhaust hoods, sinks, enclosed storage areas, stationary laboratory desks and water and gas outlets. The substitute room was not so equipped.

The classroom teacher had complained to the school principal about the substitute room: She said 3 " '(y)ou cannot keep sending us this many students and expect us to do lab work in rooms this size where the tables move too easily. It's just too crowded.' " "When you throw more students in that classroom * * * (y)ou have more hands to get into things, more bodies in the small amount of space, more confusion at times. People sometimes bump into each other. You tend to have more clumsiness occurring and it's just too hard to manage too many students.3 See fn. 1, Supra.

Introductory Physical Science is the first science course offered the high school students. The course experiments are relatively simple. During the first six to ten weeks the experiments concentrate on measuring. At about the eighth to tenth week the experiments require heat, and burners are used in two experiments. In the chemistry laboratory the students use gas-fired burners which are connected to a permanent installation for the gas supply. In the substitute room portable alcohol burners were used.

The alcohol was stored in the chemistry lab. A practice developed of pouring the alcohol into a plastic jug for transport to the substitute classroom. Before school the classroom teacher poured enough alcohol into the jug for the day's classes. The alcohol jug and burners were put on the rear counter. The jug had an open top. Students filled their burners at the counter and took them to their desks. The classroom teacher lit the burners at the desks. Goggles were worn during the experiment. After the experiment the students were to extinguish the burners and return them to the counter.

At the time of the accident Foxworth was returning her burner and noticed a lighted burner on the counter. She picked it up and as she attempted to extinguish it an explosion occurred and she caught fire.

Foxworth panicked. Another teacher came into the room. The fire extinguisher, which was kept at the opposite end of the room, was given to the classroom teacher and she put out the fire.

Foxworth suffered second-and third-degree burns.


Plaintiffs contend that the school district is not immune from suit because:

i) the governmental tort liability act 4 is unconstitutional, or, alternatively,

ii) the operation of a school is not a "governmental function" within the meaning of that act, and, in any event,

iii) it is liable under the defective building provision 5 of the act because the classroom lacked necessary safety equipment.

Three Justices have indicated in other opinions 6 that a school district is subject to liability for negligence 7 in the operation of a school and would therefore find it unnecessary to decide whether the complaint states a claim within the defective building provision. Because there is no majority to so hold, we must determine whether the complaint states a claim within the defective building provision. We hold that it does.

The defective building provision, in relevant part, reads as follows:

"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 * * * ." M.C.L. § 691.1406; M.S.A. § 3.996(106).

The school district contends that the provision "impose[s] liability only for those injuries resulting from defective conditions in public buildings Caused by inadequate or negligent repairs or maintenance (emphasis in original)." The duty is only to "repair and maintain," and unless that duty is breached there can be no liability. Plaintiffs have not alleged a failure to "repair or maintain" the building and have therefore failed to state a cause of action.

In an analogous situation involving defective highways, this Court has rejected similar arguments. Statutes imposed a duty to keep highways "in reasonable repair" and "reasonably safe and fit (or 'convenient') for travel." 8 It was unsuccessfully argued that "reasonable repair" qualifies and limits "reasonably safe and fit (convenient) for travel."

In Joslyn v. Detroit, 74 Mich. 458, 459, 460, 42 N.W. 50 (1889), the city claimed that it was not liable "because the injury did not result from a want of repair of the street * * *," 9 and in Finch v. Village of Bangor, 133 Mich. 149, 150, 94 N.W. 738, 739 (1903), the village argued that it was not liable because "want of repair was not the immediate cause of the injury." 10 This Court construed the statutes as imposing a duty to keep the highway both in "good repair" and in a condition "reasonably safe and fit for travel."

In Malloy v. Walker Twp., 77 Mich. 448, 458, 43 N.W. 1012 (1889), the plaintiff did not claim any failure to repair, but asserted that the township had been negligent in not providing barriers or railings along the side of an embankment. The township asserted that liability could not be imposed "on account of a plan or scheme of construction of a road." This Court responded:

"(A municipality) cannot construct a dangerous and unsafe road, one not safe and convenient for public travel, and shield itself behind its legislative powers to adopt a plan and method of building and constructing in accordance therewith." Id., p. 462, 43 N.W. p. 1016. 11

The defective building provision is structurally similar to the defective highway provisions. It states a duty, "repair and maintain," and in providing a cause of action extends it to "a dangerous or defective condition of a building." We construe the defective building provision as we have the defective highway provision. Governmental agencies are subject to liability for a dangerous or defective condition of a public building without regard to whether it arises out of a failure to repair and maintain.

As in the highway cases, a building may be dangerous or defective because of improper design, faulty construction or the absence of safety devices.

Plaintiff has alleged that the improper design of the classroom and absence of safety devices rendered it unsafe as a science classroom, and the classroom was therefore dangerous and defective and a cause of Foxworth's injuries.


Two judges of the Court of Appeals said that "as to particular uses or activities for which a public building or a part thereof, is specifically assigned, failure to provide the usual building components and safety devices appropriate to such contemplated use would be actionable under the statute," 12 but affirmed the summary judgment because "the complaint alleges a course of classroom conduct which would be dangerous even in a properly equipped laboratory." 13 The third judge agreed with affirmance because Foxworth's "injury did not result from a defective condition of the building but from the use to which the classroom was put." 14

We agree with the majority of the Court of Appeals that the question whether a part of a building, in this case a classroom, is dangerous or defective is to be determined in light of the "uses or activities" for which it is "specifically assigned," in this case a physical science class. As stated in Pichette v. Manistique Public Schools, 403 Mich. 268, 285, 269 N.W.2d 143, 149 (1978) (Fitzgerald, J.), "in providing for the three exceptions to the general grant of immunity contained in M.C.L. § 691.1407; M.S.A. § 3.996(107), the Legislature intended to protect the general public from injury by imposing upon governmental agencies the duty to maintain Safe public places, whether such places are public highways or public buildings." (Emphasis supplied).

To be sure, the lack of certain safety devices did not render the classroom defective Per se ; it is ordinarily unnecessary to install laboratory safety equipment in classrooms. In determining whether a place is safe, one must consider the use or purpose it serves. A building may be safe for one use or purpose, but not for another. A school is not a school because it is called one, but because it is used and functions as one. If a...

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