Freedman v. City of Oak Park
| Decision Date | 07 September 1988 |
| Docket Number | No. 94488,94488 |
| Citation | 427 N.W.2d 557,170 Mich.App. 349 |
| Parties | Shaindy FREEDMAN, individually, and as next friend of Moshe Freedman, a minor, Plaintiff-Appellant, v. CITY OF OAK PARK, a municipal corporation, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Swanson & Torgow, P.C. by Mikael G. Hahner and Gary H. Torgow, Detroit, for plaintiff-appellant.
Jacobs & Miller by Earl R. Jacobs, Southfield, for defendant-appellee.
Before WALSH, P.J., and WAHLS and GIDDINGS, * JJ.
Plaintiff appeals as of right from the trial court's July 30, 1986, order granting summary disposition in favor of defendant. We affirm.
Plaintiff Shaindy Freedman commenced this action individually and as the next friend of Moshe Freedman, a child who was allegedly injured on June 7, 1982, after falling through a hole in the roof of a covered park bench in a public park operated by defendant Oak Park. The complaint, filed June 5, 1985, alleged that defendant negligently maintained this park bench shelter.
On April 14, 1986, defendant filed a motion for summary disposition under MCR 2.116, contending that plaintiff's negligence action was barred by governmental immunity. The motion was supported by the affidavit of a maintenance employee, who averred that he repaired the roof of the park bench shelter four days prior to Moshe Freedman's accident.
On April 25, 1986, plaintiff filed an amended complaint which added a nuisance claim and modified the negligence claim to allege that defendant's failure to maintain the park bench shelter came within the "public building" exception to the governmental immunity act, M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106). In its answer and affirmative defenses, defendant contended that plaintiff's claims were barred by governmental immunity and sought a judgment of no cause of action.
On July 9, 1986, a hearing was held on defendant's motion for summary disposition. In granting summary disposition in favor of defendant on both the negligence and nuisance claims, the trial court considered the amended complaint, the parties' briefs, the affidavit filed by defendant and pictures of the park bench shelter submitted by plaintiff. Plaintiff's negligence claim was dismissed based on the trial court's determination that the park bench shelter did not come within the public building exception. Plaintiff's nuisance claim was summarily dismissed because the court found "nothing there at all."
On appeal, plaintiff first contends that the trial court erred in granting summary disposition to defendant on the negligence claim. Plaintiff argues that the park bench shelter came within the public building exception to governmental immunity. We disagree.
Initially, we note that the trial court did not specify which subsection of MCR 2.116(C) provided the basis of its ruling. Since the parties' dispute revolves around whether there was factual support for plaintiff's claim that the park bench shelter fit within the public building exception and the trial court considered the parties' proofs in ruling on the motion, we shall consider defendant's motion as having been granted under subsection (10). See Weeks v. Bd. of Trustees, Detroit General Retirement System, 160 Mich.App. 81, 84, 408 N.W.2d 109 (1987), lv. den. 429 Mich. 870 (1987); Jones v. Employers Ins. of Wausau, 157 Mich.App. 345, 349-350, 403 N.W.2d 130 (1987), lv. den. 428 Mich. 899 (1987).
The public building exception to governmental immunity, M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106), provides in pertinent part:
The purpose of the exception is to protect the general public from injury by imposing upon governmental agencies the duty to maintain safe public buildings. Pichette v. Manistique Public Schools, 403 Mich. 268, 285, 269 N.W.2d 143 (1978). Liability is imposed for injury and damage "resulting from a dangerous or defective condition of a public building," M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106), and the question whether a part of a building is dangerous or defective is determined in light of the "uses or activities" for which it is "specifically assigned." Bush v. Oscoda Area Schools, 405 Mich. 716, 731, 275 N.W.2d 268 (1979). Although the exception has been construed broadly to include fixtures on the land adjacent to a public building, i.e., a slide on a school playground, the exception has not been construed as including such fixtures when not immediately adjacent to or a part of any public building. Compare Pichette, supra, to Jolly v. City of St Clair, 428 Mich. 860, 400 N.W.2d 597 (1987).
Here, the park bench shelter was open to the public and it was a man-made structure. However, we do not believe it to be a building as contemplated by the statute. It merely provides a place to sit or a place to seek refuge from inclement weather. Moreover, the roof of the park bench shelter was clearly not designed for being climbed upon, as Moshe Freedman was allegedly doing in this case. Thus, even assuming that the park bench shelter was a public building, Moshe Freedman's injuries did not result from a dangerous or defective condition as contemplated by the statute. Rather, it was Moshe Freedman's improper use of the park bench shelter which resulted in his injury. We therefore affirm the trial court's ruling that the public building exception was inapplicable to plaintiff's claim.
Alternatively, we agree with the trial court's determination that the public building exception was inapplicable because the affidavit submitted by defendant established that the hole in the roof through which Moshe Freedman allegedly fell did not exist four days prior to his fall and that defendant received no complaints about the roof. M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106) requires that the governmental agency have actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, fail to remedy the condition or take action reasonably necessary to protect the public. Since plaintiff failed to oppose defendant's motion with specific facts demonstrating a genuine issue of material fact as to whether defendant had the requisite knowledge of the alleged defect in the roof, we conclude that summary disposition was properly granted in favor of defendant. See MCR 2.116(G)(4) and Weeks, supra, p. 84, 408 N.W.2d 109.
Plaintiff also contends that the trial court erred in dismissing sua sponte the intentional nuisance claim. Plaintiff argues that the question whether the park bench shelter was an intentional nuisance is a factual one. Defendant, on the other hand, argues that plaintiff failed to plead sufficient facts to establish an intentional nuisance claim.
Although the trial court did not specify the court rule upon which it based its ruling, we will again treat the ruling as having been based on subrule (10), with consideration being given to the pleadings and proofs submitted by the parties.
Plaintiff's intentional nuisance claim was based on the nuisance category known as a nuisance in fact. Martin v. Michigan, 129 Mich.App. 100, 108, 341 N.W.2d 239 (1983), lv. den. 422 Mich. 891, 368 N.W.2d 226 (1985). A nuisance in fact is actionable by reason of circumstances and surroundings, and an act may be found to be a nuisance in fact if...
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...by half-walls was a public building within the meaning of MCL 691.1406. Both Pierce and Ali distinguished Freedman v. Oak Park, 170 Mich.App. 349, 353–354, 427 N.W.2d 557 (1988). In Freedman, a covered park bench was determined not to be a public building within the meaning of MCL 691.1406.......
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...leaks in the water main. Nevertheless, this does not establish the requisite intent. As the Court stated in Freedman v. Oak Park, 170 Mich.App. 349, 356, 427 N.W.2d 557 (1988), lv. den. 431 Mich. 863 "[A]lthough some decisions of this Court have considered a 'knowledge' standard to be an ap......
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