Jones v. Wilcox
| Decision Date | 06 August 1991 |
| Docket Number | 114932 and 114933,117721,Docket Nos. 117720 |
| Citation | 190 Mich.App. 564,476 N.W.2d 473 |
| Parties | Paul N. JONES, Individually and as Personal Representative of the Estate of Freeman L. Robinson, Sr. and the Estate of Freeman L. Robinson, Jr., Plaintiff-Appellee and Cross-Appellant, v. Carl WILCOX, Jr., Carl Wilcox, Sr., Estella A. Andary, Brenda Andary, Individually and as Personal Representative of the Estate of Joseph Andary and as Parent/Natural Guardian of Estella A. Andary, Marion Pernell, Defendants, and William Napier, Joseph Plonkey, Mark Stelzer, James Black, Robert Gallmore, Paul Keyes, Willie Sutton, Patrick Tutak, Clarence Cooper, Defendants-Appellants and Cross-Appellees. David MACKLIS, Individually and as Personal Representative of the Estate of Sadie Macklis, Plaintiff-Appellee and Cross-Appellant, v. Carl WILCOX, Jr., Carl Wilcox, Sr., Estella A. Andary, Brenda Andary, Individually and as Personal Representative of the Estate of Joseph Andary and as Parent/Natural Guardian of Estella A. Andary, Marion Pernell, Defendants, and William Napier, Joseph Plonkey, Mark Stelzer, James Black, Robert Gallmore, Paul Keyes, Willie Sutton, Patrick Tutak, Clarence Cooper, Defendants-Appellants and Cross-Appellees. Paul N. JONES, Individually and as Personal Representative of the Estate of Freeman L. Robinson, Sr., and the Estate of Freeman L. Robinson, Jr., Plaintiff-Appellee, v. Carl WILCOX, Jr., Carl Wilcox, Sr., Estella A. Andary, Brenda Andary, Individually and as Personal Representative of the Estate of Joseph Andary and as Parent/Natural Guardian of Estella A. Andary, Marion Pernell, Defendants, and William Napier, Mark Stelzer, Joseph Plonkey, Ralph Slezak, James Black, Robert Gallmore, Paul Keyes, Willie Sutton, Patrick Tutak, Clarence Cooper, Defendants-Appellants. David MACKLIS, Individually and as Personal Representative of the Estate of Sadie Macklis, Plaintiff-Appellee, v. Carl WILCOX, Jr., Carl Wilcox, Sr., Estella A. Andary, Brenda Andary, Individually and as Personal Representative of the Estate of Joseph Andary and as Parent/Natural Guardian o |
| Court | Court of Appeal of Michigan — District of US |
[190 MICHAPP 565] Harvey, Kruse, Westen & Milan, P.C. by Thomas F. Kauza and William F. Rivard, and Gregory Bill, Detroit, for plaintiffs.
City of Detroit Law Dept. by Donald Pailen, Corp. Counsel, and Joanne D. Stafford and Quincy D. Evans, Asst. Corp. Counsel, Detroit, for defendants.
Before GRIBBS, P.J., and MacKENZIE and JANSEN, JJ.
These consolidated wrongful death cases arise out of an apartment building fire in which the plaintiffs' decedents, Freeman Robinson, Sr., Freeman Robinson, Jr., and Sadie Macklis, died. The individual City of Detroit employee defendants appeal by leave granted from the trial court's denial of two separate motions for summary disposition, one based on governmental immunity, and the other based on their claim that the Detroit Fire Prevention Code (DFPC) did not create a duty that the defendant building inspectors breached. Plaintiffs cross appeal from the trial court's denial of their motion for partial summary disposition based on their claim that there was no factual dispute that the individual city employee defendants violated the DFPC. We reverse, holding that the trial court misread the DFPC and erred in not granting the defendant building inspector's motion for summary disposition. We also hold that the remaining individual city employee defendants were entitled to summary disposition on the basis [190 MICHAPP 566] that they did not owe a duty to the individual plaintiffs.
Plaintiffs' action against defendants Plonkey, Stelzer, Slezak, Black, and Napier is premised on plaintiffs' allegation that these fire fighters failed to follow proper fire fighting procedures. Plaintiffs support this contention by noting that when the fire fighters originally arrived at the scene of the fire, they hooked up their hoses to an inoperative fire hydrant. Plaintiffs' claim against fire fighters Gallmore, Sutton, and Keyes is based on the allegation that these defendants failed to properly inspect the fire hydrant pursuant to department policy. With regard to defendants Tutak and Cooper, fire department building inspectors, plaintiffs allege that these defendants failed to note and issue citations for DFPC building violations, including the absence of fire extinguishers, smoke detectors, and other fire alarm or prevention systems.
First, the defendant building inspectors claim that the trial court erred as a matter of law in ruling that under the DFPC they had a duty to cite the apartment building owner for code violations. We agree. Our interpretation of a city ordinance is analogous to our interpretation of statutes. Thus, the interpretation of the DFPC is a legal question and a matter for the Court. Coddington v. Robertson, 160 Mich.App. 406, 410, 407 N.W.2d 666 (1987). The function of a reviewing court is to determine whether an ordinance is ambiguous and, if so, to construe it to effectuate the intent of the legislative body adopting the provision. Cf. Ripley v. Drivers Services, Inc., 151 Mich.App. 91, 94, 390 N.W.2d 690 (1986). We construe the DFPC as a whole to determine its purpose. Cf. DeSot v. Auto Club Ins. Ass'n, 174 Mich.App. 251, 254, 435 N.W.2d 442 (1988).
[190 MICHAPP 567] Section 19-3-18(a) of the DFPC provides in pertinent part:
The provisions of this article shall apply to all buildings, structures, marine vessels, premises, and conditions within the city. The provisions of this article shall apply equally to existing as well as new buildings, structures, marine vessels, premises and conditions except that existing buildings, structures, marine vessels, premises, and conditions not in strict compliance with this article may be permitted to continue unless in the opinion of the fire marshal they constitute a distinct fire hazard to life or the property of others based on available data.
Under Sec. 19-3-18, the apartment building, as a preexisting structure not in strict compliance with the DFPC, was permitted to continue unless in the opinion of the fire marshal it constituted a distinct fire hazard to life or the property of others based on available data. As defined under Sec. 19-3-1, a fire hazard is something, including a "situation," which may cause or fuel fire or explosion and poses a threat to life or property. In conjunction with Sec. 19-3-18, Sec. 19-3-20(b)(3) provides:
Existing condition correction notice. The fire marshal shall issue a written notice whenever he finds that a certain provision of this article shall be applied to existing conditions under the authority of section 19-3-18(a).
Thus, Sec. 19-3-18(a) requires a fire marshal to take the affirmative action...
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