Bush v. Oscoda Area Schools

• Decision Date: 09 December 1976
• Docket Number: Docket No. 24334
• Citation: 250 N.W.2d 759,72 Mich.App. 670
• Parties: Annie M. BUSH, next friend of Tracey Ann Foxworth, and Annie M. Bush, Individually, Plaintiffs-Appellants, v. OSCODA AREA SCHOOLS et al., Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 759

250 N.W.2d 759

72 Mich.App. 670

Annie M. BUSH, next friend of Tracey Ann Foxworth, and Annie M. Bush, Individually, Plaintiffs-Appellants, v. OSCODA AREA SCHOOLS et al., Defendants-Appellees.

Docket No. 24334.

Court of Appeals of Michigan.

Dec. 9, 1976.

Released for Publication Feb. 28, 1977.

Boyce, Yahne & Wenzel by Richard G. Boyce, Alpena, for plaintiffs-appellants.

Keil, Ransom & Henneke, by Robert P. Keil, Flint, for Oscoda School.

Freel & Huck, P.C. by Michael N. Freel, East Tawas, for Manning, Estes, Filppula.

Before KELLY, P.J., and BRONSON and PETERSON, ^* JJ.

KELLY, Presiding Judge.

This is an appeal from the trial court's grant of summary judgment of no cause for action in favor of all defendants. Plaintiff brought suit for personal injuries against her teacher, school principal, superintendent of the school district and the school district itself. We affirm as to the superintendent and school district but reverse as to the teacher and principal.

On February 3, 1972 plaintiff's 14-year-old daughter was attending a physical science class in a mathematics classroom which was neither designed nor equipped for laboratory work. Open flame alcohol wick lamps were used in the experiments. Wood alcohol (methanol) was stored in bulk in an old plastic jug which was allegedly damaged and split. The jug and the alcohol lamps were kept on a counter at the rear of the classroom. Plaintiffs' complaint alleges that on the date of the injury some of the fuel had been spilled on the counter and a lighted lamp had been placed beside the fuel container, and that as plaintiff attempted to extinguish the lamp there was an explosion and fire igniting her clothing and inflicting severe second and third-degree burns.

One count of plaintiffs' complaint was founded upon negligence, a second on nuisance and a third on violation of the statutory duty to maintain and repair public buildings so they are free from dangerous or defective conditions. M.C.L.A. § 691.1406; M.S.A. § 3.996(106). A fourth count charged strict liability in tort. We find that the grant of summary judgment as to counts two, three and four was correct. Count two is controlled by Stremler v. Department of State Highways, 58 Mich.App. 620, 228 N.W.2d 492 (1975) and Buddy v. Department of Natural Resources, 59 Mich.App. 598, 229 N.W.2d 865 (1975). The dismissal of count III was correct because the injury did not really result from a defective condition of the building but from the use of which the classroom was put. See Zawadzki v. Taylor, 70 Mich.App. 545, 246 N.W.2d 161 (1976). Dismissal of Count IV was correct because strict liability is not recognized in Michigan, Rutherford v. Chrysler Motors Corp., 60 Mich.App. 392, 231 N.W.2d 413 (1975).

Plaintiffs' complaint does not state any claim against the defendant school superintendent upon which relief can be granted. Thus the question of whether he would be protected by governmental immunity need not be considered and the grant of summary judgment on all counts by the lower court was correct as to said school superintendent and school district. M.C.L.A. § 691.1401 Et seq.; M.S.A. § 3.996(101), Et seq.

Plaintiffs' complaint does allege personal, actionable negligence on the part of the defendant teacher and the defendant principal. We find that neither of these defendants was involved in the performance of 'discretionary acts' as that phrase has been used to define the scope of governmental immunity for public officials. The trial court therefore erred in granting summary judgment in favor of these defendants. Walkowski v. Macomb County Sheriff, 64 Mich.App. 460, 236 N.W.2d 516 (1975); Wynn v. Cole, 68 Mich.App. 706, 243 N.W.2d 923 (1976); Lovitt v. Concord School District, 58 Mich.App. 593, 228 N.W.2d 479 (1975).

Affirmed as to the defendant school superintendent and the school district. Reversed as to defendant teacher and the defendant principal as to Count I only. Costs to plaintiffs.

PETERSON, Judge.

This is an appeal from the trial court's governmental-immunity premised summary judgment in favor of all defendants. The action, for classroom injuries to a student, seeks damages from the class teacher, school principal, superintendent of the district, and the school district. We affirm as to the superintendent and school district but reverse as to the teacher and principal.

On February 3, 1972, Tracey Ann Foxworth, age 14, herein referred to as plaintiff, was a high school student in defendant school district. Among her courses of study was a class in physical science. Although the course involved various scientific experiments, it was not held in a laboratory but in a mathematics classroom which was neither designed nor equipped for laboratory work. ¹ Open flame alcohol wick lamps were used to produce flame or heat for experiments. Wood alcohol (methanol) to fuel the lamps was periodically obtained from a large container in the chemical laboratory and placed in an old plastic jug which had contained duplicator fluid, which jug was allegedly damaged and split. There being no closed storage area in the room, the jug and the alcohol lamps were kept on a counter at the rear of the classroom. The complaint alleges that on the date in question there was spilled alcohol on the counter, that a lighted lamp had been placed on the counter beside the methanol jug and that, as plaintiff moved to extinguish the lamp, there was an explosion and fire igniting plaintiff's clothing and inflicting severe second and third degree burns upon her.

The complaint alleges various acts of negligence, including affirmative acts in leaving spilled alcohol exposed to ignition sources; failure to properly handle and store the methanol when open flame lamps would be in use proximate thereto; and, keeping the methanol in an improper and damaged container. Acts of omission are charged by failure to warn and supervise students in handling methanol around flame, failure to train students and school personnel in use of the fire alarm system and fire extinguisher equipment, and failure to have the fire alarm equipment in working order. ² As to facilities, the complaint alleged that the school had failed to comply with laboratory requirements of the United States Government which requirements had been agreed to by defendant district as a condition for Federal construction funds; that the class was held in a room not designed, constructed or equipped for chemical experiments; and that too many students had been scheduled into the class so that the resulting overcrowding caused congestion of students, equipment and supplies, storage space was lacking and proper supervision by the teacher was impaired.

One count of the complaint was founded upon negligence, a second asserted nuisance, ³ a third asserted violation of the statutory duty to maintain safe public buildings for which governmental immunity is waived ⁴ and a fourth asserted the so-called strict liability cause of action which is not recognized in Michigan. Rutherford v. Chrysler Motors Corp., 60 Mich.App. 392, 231 N.W.2d 413 (1975). The complaint also challenged the constitutionality of the doctrine of governmental immunity. ⁵

To the complaint, all defendants filed Motions for Summary Judgment under GCR 1963, 117.2(1), asserting that the complaint failed to state a claim upon which relief could be granted because of the defense of governmental immunity. All parties indicated to the trial court that depositions and interrogatories could be considered and that the facts were not in dispute. ⁶

At the outset, we must note the lack of consistency in terminology in dealing with 'governmental immunity' questions, and in defining the appropriate procedural means for raising and resolving such a defense. Thus, in countless cases, as in the trial court here, the question has been raised and disposed of by Motion for Summary Judgment under GCR 1963, 117.2(1) authorizing judgment without trial where the claimant 'has failed to state a claim upon which relief can be granted'. But in Cibor v. Oakwood Hospital, 14 Mich.App. 1, 3, fn. 1, 165 N.W.2d 326, 327 (1968), where a charitable immunity defense was raised by motion, the majority described immunity as a defense which operated 'to extinguish or cut off the right to relief even though the facts pleaded would otherwise state a claim', and therefore to be appropriately raised by Motion for Accelerated Judgment under GCR 1963, 116. ⁷ In Bloss v. Williams, 15 Mich.App. 228, 231, 166 N.W.2d 520, 523 (1968), Motion for Accelerated Judgment rather than Motion for Summary Judgment was held to be the appropriate means of raising the defense of quasi-judicial immunity, described therein as 'a legal bar to plaintiff's claim'. So, Curry v. Detroit, 49 Mich.App. 240, 241, fn. 1, 211 N.W.2d 559 (1973); Lovitt v. Concord School District, 58 Mich.App. 593, 595, fn. 1, 228 N.W.2d 479 (1975); Lockaby v. Wayne County, 63 Mich.App. 185, 187, fn. 1, 234 N.W.2d 444 (1975); Buddy v. Department of Natural Resources, supra, and Van Liere v. State Highway Department, 59 Mich.App. 133, 136, fn. 1, 229 N.W.2d 369 (1975), held that the defense of governmental immunity was improperly raised by Motion for Summary Judgment and should have been raised by Motion for Accelerated Judgment. In each instance, the difference was treated as mis-labeling, and of no significance. Only in the latter two cases did the Court attempt to designate the applicable subsection of the Accelerated Judgment rule, indicating that GCR 1963, 116.1(5) was appropriate since governmental immunity is a 'disability of the moving party'. ⁸ In Walkowski v. Macomb County Sheriff, 64 Mich.App. 460, 236 N.W.2d 516 (1975), the Court viewed an individual defendant as Immune from suit so that Accelerated Judgment was appropriate for lack of jurisdiction over the person under GCR 1963, 116.1(1). And in Knapp v. Dearborn, 60 Mich.App. 18, 230 N.W.2d 293 (1975), the Court treated...