Eichhorn v. Lamphere School Dist.
| Decision Date | 07 April 1988 |
| Docket Number | Docket Nos. 93071 |
| Citation | 421 N.W.2d 230,166 Mich.App. 527 |
| Parties | , 46 Ed. Law Rep. 380 Ronald EICHHORN, Personal Representative of the Estate of Terri Eichhorn, Deceased, Plaintiff-Appellant-Cross-Appellee, v. LAMPHERE SCHOOL DISTRICT, David Hadden, Catherine Maxwell, City of Madison Heights Police Department, Bryan Kingsbury and Leon Klein, Defendants-Appellees-Cross-Appellants, and Lamphere Board of Education, Edmund Tatarek, Robert Brunk, Robert Borngesser, Anthony Perisi, Harry Gibson, Frederick Hiller, George McNair, Charles Holloway, Judith Holloway, Richard Arndt and Mary Arndt, Defendants. Ronald EICHHORN, Personal Representative of the Estate of Terri Eichhorn, Deceased, Plaintiff, v. Charles HOLLOWAY, Defendant. Phyllis EICHHORN and Ronald Eichhorn, Plaintiffs-Appellants-Cross-Appellees, v. LAMPHERE SCHOOL DISTRICT, David Hadden, Catherine Maxwell, City of Madison Heights Police Department, Bryan Kingsbury and Leon Klein, Defendants-Appellees-Cross-Appellants and Lamphere Board of Education, Edmund Tatarek, Robert Brunk, Robert Borngesser, Anthony Perisi, Harry Gibson, Frederick Hiller, George McNair, Charles Holloway, Judith Holloway, Richard Arndt and Mary Arndt, Defendants. to 93073. |
| Court | Court of Appeal of Michigan — District of US |
Charfoos & Christensen by Jared P. Buckley and David R. Parker, Detroit, for plaintiffs.
Wilson, Portnoy, Leader, Pidgeon & Roth, P.C. by Robert P. Roth, Bloomfield Hills, for Lamphere School Dist. and its employees.
Ulanoff, Ross & Wesley, P.C. by Stuart A. Ulanoff, Southfield, for City of Madison Heights Police Dept. and Bryan Kingsbury.
Before WAHLS, P.J., and SAWYER and SIMON, * JJ.
This appeal involves three lawsuits brought by plaintiffs Ronald G. Eichhorn and Phyllis Eichhorn in the Oakland Circuit Court, either on behalf of their deceased daughter, Terri Eichhorn, or on their own behalf. Terri Eichhorn died as a result of injuries sustained when she fell off of a float en route to a high school homecoming parade. We affirm the trial court's grant of summary disposition to certain defendants and reverse the court's denial of summary disposition to other defendants.
In the fall of 1980, Terri Eichhorn started her senior year at Lamphere High School in Madison Heights. That year the senior class decided to build a float for display at the school's homecoming parade based on the theme of "Snoopy and the Red Baron." Accordingly, a dog house and biplane were constructed and, in an attempt to make it appear that the dog house was flying through air, it was placed on top of a metal saucer-shaped sled so that it could roll back and forth. Terri Eichhorn was chosen to wear a Snoopy costume and sit inside the dog house.
The float was built at the home of Judith and Charles Holloway, parents of another senior high school student. Since the floats were part of a competition between the student classes, the policy was that only the students were to participate in their design and construction. However, the night before the parade, assistant principal Leon Klein and class sponsor Catherine Maxwell visited the Holloway home in order to check on the status of the float construction. Klein was also expected to inspect the float at the staging area, just prior to its actually joining the homecoming parade.
On the day of the parade, October 17, 1980, it was windy and slightly stormy. An unidentified person, apparently in conformance with instructions given by Leon Klein, requested that the City of Madison Heights Police Department provide a police escort for the float from the Holloway home to the staging area of the parade. Bryan Kingsbury, a reserve police officer for the city, was sent to escort the float. Upon arrival at the Holloway home, Kingsbury observed ten to twenty students sitting on the float and told an unidentified man that no one should ride on the float during transport. Kingsbury heard this unidentified man tell the students to get off of the float and observed that the students complied. Unbeknownst to Kingsbury, however, Terri Eichhorn, dressed in a Snoopy costume, remained on the float inside the dog house. Kingsbury believed that the Snoopy head he saw at the top of the dog house belonged to a stuffed animal.
The float, which was built on a trailer, was pulled by a truck. As the truck turned the corner at Thirteen Mile Road and John R., at a rate of one to three miles per hour, the dog house was blown off. Terri Eichhorn, who was still inside the dog house, fell to the ground and died from injuries to her head sustained during the fall.
In the wake of the death of Terri Eichhorn, three lawsuits were filed. The first lawsuit (No. 93071) was filed by Ronald G. Eichhorn, acting as the personal representative of the estate of his daughter, Terri Eichhorn, and named as defendants the Lamphere School District, the Lamphere Board of Education, 1 Edmund Tatarek, Robert Brunk, Robert Borngesser, Anthony Perisi, Harry Gibson, Frederick Hiller, George McNair, Charles Holloway, Judith Holloway, David Hadden, Catherine Maxwell, the City of Madison Heights Police Department, Bryan Kingsbury, Richard Arndt, and Mary Arndt. The complaint, which alleged negligence against each defendant, was subsequently amended to add Leon Klein as a party defendant and to allege a count of nuisance against each defendant. The second lawsuit (No. 93072) A motion for summary judgment on the basis of governmental immunity was brought by defendants Lamphere School District, Lamphere Board of Education, Edmund Tatarek, Robert Brunk, Robert Borngesser, Anthony Peresi, Harry Gibson, Frederick Hiller, George McNair, David Hadden, and Catherine Maxwell on January 25, 1982, and was denied on September 21, 1982. When these defendants appealed to this Court, we dismissed the appeal without prejudice because the lower court's order was not a final order appealable by right under GCR 1963 806.1, now MCR 7.203(A). Unpublished order of the Court of Appeals, issued November 16, 1982 (Docket No. 67341). Subsequently, this Court denied a delayed application for leave to appeal the lower court's denial of summary judgment on the basis of not being persuaded of the need for immediate appellate review. Unpublished order of the Court of Appeals, issued May 31, 1983 (Docket No. 69313).
was filed on November 29, 1982, by Ronald G. Eichhorn, as personal representative of the estate of Terri Eichhorn, and named Charles Holloway as defendant. This complaint alleged nuisance and intentional nuisance. 2 Finally, the third lawsuit (No. 93073) was filed on December 16, 1982, by Ronald G. Eichhorn and Phyllis Eichhorn, on their own behalf, and named as defendants the same parties sued in the first lawsuit. This complaint alleged negligence and nuisance against each defendant
On April 21, 1983, the parties in the first and second lawsuits stipulated to the dismissal with prejudice of defendants Lamphere Board of Education, Edmund Tatarek, Robert Brunk, Robert Borngesser, Anthony Perisi, Harry Gibson, Frederick Hiller, and George McNair. These same parties were dismissed from the third lawsuit on April 29, 1983.
Ross v. Consumers Power Co. (On Reh), 420 Mich. 567, 363 N.W.2d 641 (1984), which significantly changed the landscape of governmental immunity law in Michigan, was released on January 22, 1985. On August 14, 1985, defendants Lamphere School District, David Hadden, Catherine Maxwell, and Leon Klein moved for a rehearing of their pre-Ross motions for summary judgment based on governmental immunity. Moreover, defendants City of Madison Heights Police Department and Brian Kingsbury moved on November 25, 1985, for summary disposition on the grounds of governmental immunity and the absence of a duty to the deceased. On March 12, 1986, a hearing was held; and on May 21, 1986, the trial court issued a final order in which the following rulings were made: 3
(1) grant of summary disposition in favor of defendant Lamphere School District as to all negligence claims;
(2) denial of summary disposition in favor of defendant Lamphere School District as to all intentional nuisance claims;
(3) grant of summary disposition in favor of defendant David Hadden;
(4) denial of summary disposition in favor of defendant Catherine Maxwell;
(5) denial of summary disposition in favor of defendant Leon Klein;
(6) grant of summary disposition in favor of defendants City of Madison Heights Police Department and Bryan Kingsbury as to all intentional nuisance claims; and
(7) denial of summary disposition in favor of defendants City of Madison Heights Police Department and Bryan Kingsbury as to all negligence claims.
Plaintiffs appealed from rulings 1, 3, and 6; defendants City of Madison Heights Police Department and Bryan Kingsbury cross-appealed from ruling 7; and defendants Lamphere School District, David Hadden, and Catherine Maxwell cross-appealed from rulings 2 and 4. 4
The trial dates of the three lawsuits, which were consolidated on appeal by this Court, were adjourned by stipulation of the parties pending the outcome of the issues now on appeal and cross-appeal.
I
Plaintiffs contend that the trial court erred in granting summary disposition in favor of defendant Lamphere School District regarding all claims of negligence. There is no dispute that plaintiffs pled facts which alleged that the tort occurred during the exercise or discharge of a nongovernmental function. Hoffman v. Genesse Co., 157 Mich.App. 1, 6, 403 N.W.2d 485 (1987). Thus, the school district argued below that plaintiffs' claims against it were barred due to immunity granted by law. 5 MCR 2.116(C)(7). When reviewing a motion brought under MCR 2.116(C)(7), a court must consider the affidavits, together with the pleadings, depositions, admissions and documentary evidence filed or submitted by the parties. MCR 2.116(G).
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