G. C. v. Am. Athletix, LLC
| Decision Date | 13 October 2022 |
| Docket Number | 357805,357966 |
| Parties | G. C., by Next Friend CRYSTAL CAVAZOS, Plaintiff-Appellee, v. AMERICAN ATHLETIX, LLC, and DAVISON COMMUNITY SCHOOLS Defendants, and DANIEL ROMZEK and PHILIP THOM,Defendants-Appellants. G. C., by Next Friend CRYSTAL CAVAZOS,Plaintiff-Appellant, v. AMERICAN ATHLETIX, LLC, and DAVISON COMMUNITY SCHOOLS,Defendants-Appellees, and DANIEL ROMZEK and PHILIP THOM,Defendants. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Genesee Circuit Court LC Nos. 19-112719-NO, 19-112719-NO Before: K. F. Kelly, P.J., and Borrello and Cameron, JJ.
In these consolidated appeals, in Docket No. 357805, defendants Daniel Romzek and Philip Thom appeal by right the trial court's order denying their motion for summary disposition, which was made on the basis of governmental immunity. In Docket No. 357966, plaintiff appeals by leave granted[1] the same order, challenging the trial court's grant of summary disposition in favor of defendants Davison Community Schools (DCS) and American Athletix, LLC. We affirm the court's order granting summary disposition in favor of DCS and American Athletix. And because Romzek and Thom were entitled to governmental immunity, we reverse the trial court's order denying their motion for summary disposition and remand for entry of an order granting summary disposition in their favor.
On October 21, 2017, Crystal Cavazos and her three-year-old son GC, attended a football game at Collins Field, which is near Davison Middle School in Davison, Michigan. They were seated approximately 15 rows up in the bleachers, which correlated to approximately 17 feet above the ground. There were no riser planks between the seats and floorboards, which meant there were 15-inch gaps throughout the bleachers. During the game, GC slipped through an opening between the seat and the floorboard, fell to the ground, and suffered serious injuries.
DCS owns and maintains the bleachers where the accident occurred. DCS's Director of Operations is responsible for, among other things, the maintenance of the grounds of the school district. Davison High School had utilized Collins Field for its football games until a new stadium, Cardinal Stadium, was built and opened in the fall of 2005. Romzek, the Director of Operations for the school district at the time, was involved with the new stadium project. The bleachers at Cardinal Stadium were built with riser planks. After the new stadium was built, the district decided that there was no need for the wooden, extra seating capacity at Collins Field. In furtherance of the plan to remove the wooden bleachers, DCS consulted with the architect that designed Cardinal Stadium, THA Architects and Engineering (THA). Jacqueline Hoist, an architect for THA, met at Collins Field to review the project. This meeting took place in December 2005, and Hoist prepared notes in conjunction with that meeting. The project resulted with the wooden bleachers being removed. No riser planks were added to the remaining aluminum bleachers at Collins Field.
In 2008, Romzek, while still the Director of Operations for the school district, contracted with American Athletix to perform an inspection of the various bleachers in the district, including the bleachers at Collins Field. A report was issued on May 22, 2008, which covered inspections for seven different "units" of bleachers. With respect to Collins Field, the report stated under "Immediate Safety Issues": "Entry stairs sinking, bent seat, no riser planks, safety rails have large gap." Later in the report, under the "General Inspection" section, concerning all seven units of bleachers, it mentioned: "There no [sic] riser planks at Collins Field."
Romzek did not recall making any inquiries to American Athletix regarding the report or its reference to riser planks. Romzek explained that it was his understanding that riser planks were not required on the Collins Field bleachers because there was no such code requirement at the time they were built. He also stated that he was unaware of any requirement to retrofit preexisting bleachers. There is no dispute that neither Romzek nor anyone from DCS did anything about the lack of riser planks after receiving the 2008 report.
Romzek left DCS in 2012, and Thom took over as Director of Operations. Thom stated that he did not see the 2008 report until this litigation arose. In 2013, Thom asked American Athletix to perform another bleacher inspection for the district. Section 3.1 of the report, titled "Planks and Seats," stated, in pertinent part:
Thom testified that he asked American Athletix for a quote to fix "everything." American Athletix later provided a quote to Thom, but it did not include any work for adding riser planks. It is undisputed that no riser planks were added to the Collins Field bleachers after the 2013 inspection, and there is no evidence of any other "professional" inspections having taken place between 2013 and the 2017 accident.
Plaintiff filed this action on May 13, 2019, alleging three counts: negligence against American Athletix, public-building defect against DCS, and gross negligence against Thom and Romzek.
DCS, Thom, and Romzek moved for summary disposition on the basis of governmental immunity. DCS argued that the public-building exception to governmental immunity did not apply to bleachers, because bleachers are not a "building." Alternatively, DCS argued that the hazard at issue involved a design defect, which falls outside the purview of the duty imposed by MCL 691.1406. For their part, Thom and Romzek argued that their conduct did not rise to the level of gross negligence, and that liability could not attach to them because their conduct was not the proximate cause of GC's injuries.
American Athletix moved for summary disposition under MCR 2.116(C)(10). American Athletix argued that plaintiffs claim against it sounded in premises liability and that, as a result, it could not be liable because it was not in control of the property. American Athletix alternatively argued that any negligence claim necessarily failed because it did not owe a duty to GC.
The trial court granted summary disposition in favor of American Athletix, ruling that plaintiffs claim against it sounded in premises liability and because American Athletix was not in control of the premises, it was entitled to summary disposition. The court further determined that to the extent that the claim sounded in ordinary negligence, the claim failed because American Athletix owed no duty to GC. The trial court also granted summary disposition in favor of DCS. The court found that for purposes of the motion, it was considering the bleachers to be a public building. However, it held that DCS was nevertheless entitled to summary disposition because the gap at issue in the bleachers was a "design defect," which is not included under the public-building exception to governmental immunity.
The trial court, however, denied the motion for summary disposition as to Romzek and Thom. The court determined that viewing the evidence in a light most favorable to plaintiff, there was a genuine question of material fact whether Romzek and Thom were grossly negligent. The court also rejected Romzek and Thom's argument that there was no question of fact whether their actions were the proximate cause of GC's injuries. These appeals followed.
This Court reviews a trial court's decision on a motion for summary disposition de novo. Odom v Wayne Co, 482 Mich. 459, 466; 760 N.W.2d 217 (2008).[2] A party is entitled to summary disposition under MCR 2.116(C)(7) if, among other things, the plaintiff's claims are "barred because of immunity granted by law." When considering a motion brought under this subrule, the court considers all the affidavits, depositions, admissions, or other documentary evidence submitted by the parties in a light most favorable to the plaintiff. Moraccini v Sterling Hts, 296 Mich.App. 387, 391; 822 N.W.2d 799 (2012). "The contents of the complaint are accepted as true unless contradicted by the evidence provided." Odom, 482 Mich. at 466 (quotation marks and citation omitted). Although the question of whether a governmental employee's conduct constituted gross negligence generally is a question of fact, "if reasonable minds could not differ, a court may grant summary disposition." Briggs v Oakland Co, 276 Mich.App. 369, 374; 742 N.W.2d 136 (2007).
Romzek and Thom argue that the trial court erred when it denied their motion for summary disposition on the basis of governmental immunity. In particular, they contend that there was no genuine issue of material fact whether their conduct rose to the level of gross negligence,...
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