Gibson v. Neelis

• Decision Date: 23 December 1997
• Docket Number: Docket No. 197140
• Citation: 575 N.W.2d 313,227 Mich.App. 187
• Parties: Donna GIBSON, Personal Representative of the Estate of Brenda L. Gibson, Deceased, Plaintiff-Appellant, v. Paul R. NEELIS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 313

575 N.W.2d 313

227 Mich.App. 187

Donna GIBSON, Personal Representative of the Estate of Brenda L. Gibson, Deceased, Plaintiff-Appellant, v.Paul R. NEELIS, Defendant-Appellee.

Docket No. 197140.

Court of Appeals of Michigan.

Submitted July 2, 1997, at Grand Rapids.

Decided Dec. 23, 1997, at 9:20 a.m.

Released for Publication March 10, 1998.

Peter J. Lyons, Detroit, for Plaintiff-Appellant.

Sullivan, Crowley & Beeby, P.C. by James I. Sullivan, Traverse City, for Defendant-Appellee.

Before SAAD, P.J., and NEFF and REILLY, JJ.

PER CURIAM.

Plaintiff appeals as of right from an amended order denying plaintiff's motion for reconsideration of the trial court's decision to take judicial notice of law, granting defendant's motion for partial summary disposition, and dismissing plaintiff's remaining claims.We affirm.

Plaintiff's decedent died of carbon monoxide poisoning in a November 14, 1990, fire in her apartment building in the City of St. Ignace, Michigan.The building, owned by defendant, was not equipped with smoke detectors.Plaintiff filed suit under the wrongful death act, M.C.L. § 600.2922;M.S.A. § 27A.2922, alleging two counts of negligence on the part of defendant.In count I, plaintiff alleged that defendant was liable under principles of common-law premises liability for various conditions throughout the building, including the absence of smoke detectors.In count II, plaintiff alleged that defendant was also liable for certain violations of the duty of care imposed by the Building Officials and Code Administrators National Building Code of 1987 (BOCA).

In response to a request from defendant, the trial court took judicial notice of law and announced that no local or state law, including the common law, required the installation of smoke detectors in defendant's building at the time of the fire that killed plaintiff's decedent.Defendant then moved for partial summary disposition pursuant to MCR 2.116(C)(8) with respect to all negligence claims based on the alleged absence of smoke detectors in defendant's building.In response, plaintiff answered defendant's motion for partial summary disposition and moved for reconsideration of the trial court's decision to take judicial notice of law.After a hearing on both motions, the trial court denied plaintiff's motion for reconsideration and granted defendant's motion for partial summary disposition.The trial court reasoned that, subject to certain exceptions, the state administrative rules adopting the BOCA specifically exempted "existing structures" from its provisions, including the provision requiring the installation of smoke detectors.See1988 AACS, R 408.30401 et seq.Defendant's motion for partial summary disposition was granted solely on this basis, and plaintiff's remaining claims, based on theories of liability apart from defendant's alleged failure to install smoke detectors, were voluntarily dismissed to achieve a final appealable order.

This Court reviews de novo a trial court's decision to grant a motion for summary disposition.Atkinson v. Detroit, 222 Mich.App. 7, 9, 564 N.W.2d 473(1997).If summary disposition is granted under one subpart of the court rule when it was actually appropriate under another, the defect is not fatal and does not preclude appellate review as long as the record permits review under the correct subpart.Royce v. Citizens Ins. Co., 219 Mich.App. 537, 541, 557 N.W.2d 144(1996).In deciding a motion for summary disposition brought under MCR 2.116(C)(8), a trial court may look only to the parties' pleadings.However, in deciding a motion for summary disposition pursuant to MCR 2.116(C)(10), a trial court must consider the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted by the parties.MCR 2.116(G)(5).Summary disposition may be granted pursuant to MCR 2.116(C)(10) if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.Atkinson, supra at 9, 564 N.W.2d 473.Here, the trial court looked beyond the pleadings and relied on documentary evidence regarding certain facts unique to the building in question to determine whether defendant was required to install smoke detectors.Accordingly, we will address this issue as if defendant's motion for partial summary disposition had been granted pursuant to MCR 2.116(C)(10).SeeRoyce, supra at 541, 557 N.W.2d 144.When reviewing such a motion, this Court must consider the material available to it in a light most favorable to the nonmoving party and determine whether there exists a genuine issue of material fact on which reasonable minds could differ or whether the moving party is entitled to judgment as a matter of law.Tranker v. Figgie Int'l, Inc., 221 Mich.App. 7, 11, 561 N.W.2d 397(1997).

On appeal, plaintiff challenges only the trial court's interpretation of defendant's legal duties under Michigan's statutory and regulatory scheme.Plaintiff does not argue that the trial court erred with respect to the issue of defendant's common-law duty.¹Accordingly, we will not address the propriety of the trial court's decision with respect to defendant's duties under the common law.Marx v. Dept. of Commerce, 220 Mich.App. 66, 81, 558 N.W.2d 460(1996).The precise question presented is whether Michigan statutory or regulatory law required the installation and maintenance of smoke detectors in defendant's building on November 14, 1990, when the fire occurred.Defendant argues that he was not required to install and maintain smoke detectors because his building was in existence before the adoption of the state construction code.We agree.

The State Construction Code Act of 1972, M.C.L. § 125.1501 et seq.;M.S.A. § 5.2949(1) et seq., established the State Construction Code Commission, M.C.L. § 125.1503;M.S.A. § 5.2949(3), which is charged with preparing and promulgating rules governing the construction, use, and occupation of buildings, M.C.L. § 125.1504(1);M.S.A. § 5.2949(4)(1).Ypsilanti Twp. v. Edward Rose Bldg. Co., 112 Mich.App. 64, 69, 315 N.W.2d 196(1981).In 1988, the State Construction Code Commission adopted by reference the BOCA, together with certain amendments, additions, and deletions.See1988 AACS, R 408.30401.Section 100.2 of the BOCA provided that the code regulations controlled "all matters concerning the construction, alteration, addition, repair, removal, demolition, use, location, occupancy, and maintenance of all buildings and structures."Furthermore, according to this section, the code was to apply to all existing and proposed structures, except as otherwise provided.SeeBOCA, § 100.2.

With respect to existing structures, the State Construction Code provided:

The legal use and occupancy of any structure existing on the effective date of enforcement or for which it had been previously approved may be continued without change, except as may be specifically covered in the code or as may be deemed necessary by the building official for the general safety and welfare of the occupants and the public.[1988 AACS, R 408.30403.1, amending BOCA, § 103.1(emphasis added).]

The parties do not dispute that defendant's building was an existing structure before the effective date of enforcement.Roy Carlson, the St. Ignace building inspector, swore in an affidavit that defendant's building was in existence since at least 1946 and that, to the best of his knowledge, he never told defendant that the building was a safety hazard without smoke detectors or that defendant should install smoke detectors.Thus, because the installation of smoke detectors was not required by statute or rule before the effective date of enforcement and not deemed necessary by the building official, we must determine whether a change in the use was specifically covered by another provision of the code.We conclude that it was not.

Article 10 of the BOCA addressed "Fire Protection Systems."The first section of Article 10, entitled "scope," provided that "this article shall specify where fire protection systems are required in all buildings or structures or portions thereof."BOCA, § 1000.1.Pursuant to § 1018.3.5, smoke detectors were required in the immediate vicinity of bedrooms and on every floor, including the basement, of structures classified as...