Dagen v. Village of Baldwin

• Decision Date: 18 June 1987
• Docket Number: Docket No. 83507
• Citation: 406 N.W.2d 889,159 Mich.App. 620
• Parties: Richard R. DAGEN and Charlene Dagen, Plaintiffs-Appellants, v. The VILLAGE OF BALDWIN, Lake County, Michigan and Theodore Gregg, Defendants-Appellees. 159 Mich.App. 620, 406 N.W.2d 889
• Court: Court of Appeal of Michigan — District of US

Page 889

406 N.W.2d 889

Richard R. DAGEN and Charlene Dagen, Plaintiffs-Appellants, v. The VILLAGE OF BALDWIN, Lake County, Michigan and Theodore

Gregg, Defendants-Appellees.

Docket No. 83507.

159 Mich.App. 620, 406 N.W.2d 889

Court of Appeals of Michigan.

Submitted Feb. 12, 1986.

Decided April 22, 1987.

Released for Publication June 18, 1987.

[159 MICHAPP 622] Libner, VanLeuvan & Kortering, P.C. by John A. Braden, Muskegon, for plaintiffs-appellants.

Cholette, Perkins & Buchanan by Kenneth L. Block, Grand Rapids, for defendants-appellees.

Before HOLBROOK, P.J., and SHEPHERD and ROBERSON, ^* JJ.

HOLBROOK, Presiding Judge.

Richard Dagen (hereinafter plaintiff) and his wife, Charlene Dagen, appeal as of right from the circuit court order granting defendant Village of Baldwin's motion for summary judgment pursuant to GCR 1963, 117.2(1) and (3), now MCR 2.116(C)(8) and (10). We find that plaintiff's recovery under the Workers' Disability Compensation Act is the exclusive remedy for his alleged personal injuries and affirm the [159 MICHAPP 623] order in that regard. However, we find that plaintiff has stated a claim for breach of contract and, therefore, remand for further proceedings on this claim.

On August 24, 1982, plaintiff suffered a permanent knee injury when he fell from the roof of a building owned and maintained by the village. At the time of his injury, plaintiff was a welfare recipient who was required to participate in the Community Work Experience Program (CWEP) sponsored by the Department of Social Services. Under the program plaintiff was sent by the DSS to work for the village. Plaintiff was shingling the roof of a village maintenance building when he fell.

On December 5, 1983, plaintiff and his wife commenced this lawsuit in circuit court against the village and Theodore Gregg, the training program worker for the county DSS. Plaintiffs' complaint alleged that defendants were negligent in failing to provide adequate safety equipment or training, providing negligent supervision, allowing the roof to deteriorate to an unsafe condition, providing untrained personnel, and failing to use proper care and caution.

On October 9, 1984, the village filed a motion for summary judgment pursuant to GCR 1963, 117.2(1) and (3), contending that plaintiff's claim was barred by the exclusive remedy provision of the WDCA and by the doctrine of governmental immunity. Following a hearing on the motion, the trial court agreed that plaintiff's claim was barred by the exclusive remedy provision of the WDCA. However, the court declined to rule on defendant's governmental immunity defense pending the outcome in Ross v. Consumers Power Co (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984).

Prior to entry of the order on the motions, [159 MICHAPP 624] plaintiff moved to amend his complaint to add a count for breach of contract. Thereafter, defendant village was granted summary judgment with respect to this claim as well. The claims against defendant Gregg were also dismissed. Gregg was not represented on appeal.

On appeal plaintiff contends that his claim against the village is not barred by the exclusive remedy provision of the WDCA. We need not decide this claim because, even assuming recovery under the WDCA was not plaintiff's sole remedy, plaintiff's recovery from the village for personal injuries under a tort theory is barred by governmental immunity.

In Ross, supra, the Supreme Court held that all governmental agencies are immune from tort liability to the extent that they are engaged in governmental functions. The Court defined "governmental function" as follows:

"[A] governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law. When a governmental agency engages in mandated or authorized activities, it is immune from tort liability, unless the activity is proprietary in nature [as defined in MCL 691.1413; MSA 3.996(113) ] or falls within one of the other statutory exceptions to the governmental immunity act." Ross, supra, p. 620, 363 N.W.2d 641.

We find that the care and maintenance of public property within the village is a governmental function, since it is expressly mandated by statute. See M.C.L. Sec. 67.1; M.S.A. Sec. 5.1285. Since the village was engaged in the maintenance of one of its buildings at the time of plaintiff's injury, it is immune from tort liability in this instance.

Although M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106) provides an exception to the general grant of immunity[159 MICHAPP 625] from liability where the injuries arise out of dangerous or defective conditions in public buildings under the governmental agency's control, ¹ we do not believe that the public buildings exception is applicable here.

In providing for the exceptions to the general grant of immunity found in Sec. 1407, M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107), the Legislature intended to protect the general public from injury by imposing upon the governmental agencies the duty to maintain safe public places, whether such places are public highways or public buildings. Bush v. Oscoda Area Schools, 405 Mich. 716, 731-732, 275 N.W.2d 268 (1979). In the instant case, plaintiff was injured when he fell from the roof of the village maintenance building, not as a member of the general public, but as a worker repairing the roof. In Zawadzki v. Taylor, 70 Mich.App. 545, 246 N.W.2d 161 (1976), lv. den. 399 Mich. 875 (1977), a panel of this Court noted that the thrust of the public building statute is to impose an obligation to repair and maintain structural parts of public buildings. A complaint alleging a dangerous or defective condition resulting from the failure to provide equipment does not fall within the exception:

"The thrust of the statute is to impose an obligation[159 MICHAPP 626] to 'repair and maintain public buildings', viz.: to repair and maintain something that either was or should have been a structural part of the building. We do not construe the statute as referring to repair or maintenance of a piece of equipment which was not present in the first instance and which could not reasonably be considered to be part of the building. We hold that a complaint alleging a 'dangerous or defective condition' resulting from the failure to provide an item of equipment, does not fall within the 'public building exception' unless the danger causing the injury resulted from a condition of the building itself rather than resulting from the activities or operations conducted within the building. To hold otherwise would expand the 'building' exception into an operation or activities exception. See Lockaby v Wayne County, 63 Mich App 185; 234 NW2d 444 (1975)." Zawadzki, supra, 70 Mich.App. p. 551, 246 N.W.2d 161. (Footnotes omitted, emphasis supplied.)

In this case, plaintiff claims that the public building exception is applicable because defendant village failed to provide safety equipment, i.e., roof jacks, while the roof was being used as a work place. The equipment would not have been a structural part of the building installed for purposes of insuring the safety of the general public. Further, the danger which caused plaintiff's injury was the result of activities or operations on the building rather than a result of the condition of the building itself. Hence defendant's failure to provide such safety equipment does not fall within the defective building exception.

The question of whether a part of a building is dangerous or defective is to be determined in light of the "uses or activities" for which the building is specifically assigned. Bush, supra, 405 Mich. p. 731, 275 N.W.2d 268. Apart from the repair work, the roof was serving as a cover for a public building which housed maintenance[159 MICHAPP 627] equipment. The building was not a place used by the general public and, hence, was not a public building within the meaning of the statute. Consequently, we conclude that plaintiff has failed to state a claim in avoidance of governmental immunity.

Although Ross, supra, had not been decided prior to the hearing on defendant's motion for summary judgment, it is nevertheless applicable. In Hyde v. University of Michigan Bd of Regents, 426 Mich. 223, 393 N.W.2d 847 (1986), the Supreme Court held that Ross was to be given limited retroactive effect. That is, the rules articulated in Ross are to be applied to "all cases commenced after the date our opinion was issued (January 22, 1985), and to those cases pending either in trial or appellate courts on that date which properly raised and preserved a governmental immunity issue." Hyde, supra, 426 Mich. p. 241, 393 N.W.2d 847. We find Ross applicable here since the instant case was pending in trial court at the time Ross was decided.

Although we find that plaintiff's claim for personal injury damages is barred by the doctrine of governmental immunity, our analysis of this case does not end here. Plaintiff's first amended complaint alleged a breach of contract. The trial court dismissed this claim pursuant to defendant's oral motion for summary judgment. We find that the trial court erred.

A governmental agency does not have immunity from actions arising out of contracts to which it is a party:

"In Ross, the Supreme Court held that '[i]f a plaintiff successfully pleads and establishes a non-tort cause of action, [MCL 691.1507; MSA 3.996(107) ] will not bar recovery simply because the underlying facts could have also established a [159 MICHAPP 628] tort cause of action'. Ross, [420 Mich.] pp 647-648 ." Landry v. Detroit, 143 Mich.App. 16, 21, 371 N.W.2d 466 (1985), lv. gtd. 424 Mich. 876 (1986). See also Davidson v. Michigan, 42 Mich.App. 80, 83, 201 N.W.2d 296 (1972).

Furthermore, the exclusive remedy provision of the WDCA does not preclude plaintiff's claim for breach of contract. Milton v. Oakland Co., 50 Mich.App. 279, 284, 213 N.W.2d 250 (1973).

Although plaintiff was not a party...