Kortering v. City of Muskegon, Docket No. 12891

• Decision Date: 26 May 1972
• Docket Number: No. 3,Docket No. 12891,3
• Citation: 41 Mich.App. 153,199 N.W.2d 660
• Parties: Vernon D. KORTERING, individually and as next friend of Kathryn, Karyn and David Kortering, minors, for himself and his children and in behalf of all other parents and school-age children of the City of Muskegon, Plaintiffs-Appellants, v. CITY OF MUSKEGON, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 660

199 N.W.2d 660

41 Mich.App. 153

Vernon D. KORTERING, individually and as next friend of

Kathryn, Karyn and David Kortering, minors, for himself and his children and in behalf of all other parents and school-age children of the City of Muskegon, Plaintiffs-Appellants, v. CITY OF MUSKEGON, Defendant-Appellee.

Docket No. 12891.

Court of Appeals of Michigan, Division No. 3.

May 26, 1972.

Released for Publication Aug. 18, 1972.

Vernon D. Kortering, Marcus, McCroskey, Libner, Reamon & Williams, Muskegon, for plaintiffs-appellants.

Harold M. Street, Poppen, Street, Sorensen & Engle, Muskegon, for defendant-appellee.

Before R. B. BURNS, P.J., and HOLBROOK and O'HARA, ^* JJ.

R. B. BURNS, Presiding Judge.

This is a class action ¹ brought by plaintiffs to compel the City of Muskegon to provide paid and trained guards at various highway crosswalks in the City to assist children at such crosswalks as they proceed to and from their schools. For many years prior to the 1971--72 school year defendant had utilized trained crossing guards. Plaintiffs appeal from the trial court's summary dismissal of their complaint.

Because of the nature of plaintiffs' requested relief, I.e., mandamus ², they were burdened with a high degree of proof. A writ of Mandamus will issue only if plaintiffs prove they have a 'clear legal right to performance of the specific duty sought to be compelled' and that defendant has a 'clear legal duty to perform such act.' Toan v. McGinn, 271 Mich. 28, 34, 260 N.W. 108, 111 (1935); Iron County Board of Supervisors v. Crystal Falls, 23 Mich.App. 319, 322, 178 N.W.2d 527 (1970). This Court will not interfere with the trial court's refusal to issue a writ of Mandamus unless it is evident that such refusal constitutes a clear abuse of its discretion. Spalding v. Spalding, 355 Mich. 382, 94 N.W.2d 810 (1959); Parraghi v. Pizzimenti, 37 Mich.App. 290, 194 N.W.2d 485 (1971).

In our view the trial court's decision to grant summary judgment to defendant on the ground that plaintiffs failed to state a claim upon which relief could be granted ³ was entirely proper.

In attempting to establish the 'clear legal duty and right' preconditions to Mandamus issuance, plaintiffs rely on M.C.L.A. § 691.1402; M.S.A. § 3.996(102) which provides in part:

'Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel.'

This statutory language does not impose a duty to provide crossing guards with 'such precision and certainty as to leave nothing to the exercise of discretion or judgment.' Toan v. McGinn, Supra, 271 Mich. p. 34, 260 N.W. p. 111; Iron County Board of Supervisors, supra, 23 Mich.App. p 322, 178 N.W.2d 527.

The determination of providing general and auxiliary services by a city should be left to the discretion of the city officials. See Cicotte v. Damron, 345 Mich. 528, 77 N.W.2d 139 (1956).

Affirmed. No costs; a public question.

* MICHAEL D. O'HARA,...