Landry v. City of Detroit

• Citation: 371 N.W.2d 466,143 Mich.App. 16
• Decision Date: 15 August 1985
• Docket Number: Docket No. 70836
• Parties: Brenda LANDRY and Emmett Landry, husband and wife, Plaintiffs-Appellants, v. CITY OF DETROIT, a municipal corporation, and Detroit Wayne Joint Building Authority, jointly and severally, Defendants-Appellees.
• Court: Court of Appeal of Michigan (US)

Page 466

371 N.W.2d 466

143 Mich.App. 16

Brenda LANDRY and Emmett Landry, husband and wife Plaintiffs-Appellants, v. CITY OF DETROIT, a municipal corporation, and Detroit Wayne Joint Building Authority, jointly and severally Defendants-Appellees.

Docket No. 70836.

Court of Appeals of Michigan.

Submitted April 9, 1984.

Decided May 20, 1985.

Released for Publication Aug. 15, 1985.

Paul D. Sherr, P.C. by Paul D. Sherr, Birmingham, and Hertzberg, Jacob & Weingarten, P.C. by Ellen J. Alter, Detroit, for plaintiffs-appellants.

William B. Daniel, Supervising Asst. Corp. Counsel, and Dennis Mazurek, Asst. Corp. Counsel, Detroit, for City of Detroit.

Berry, Puleo & Noeske by Orlando L. Blanco, Troy, for Detroit Wayne Joint Bldg. Authority.

Before HOOD, P.J., and KELLY, and LIVO ^*, JJ.

LIVO, Judge.

Plaintiffs appeal as of right from a circuit court order granting defendants' motion for summary judgment, GCR 1963, 117.2(1), based on the claim of governmental immunity, M.C.L. Sec. 691.1401 et seq.; M.S.A. Sec. 3.996(101) et seq.

Plaintiffs brought suit against defendant City of Detroit and defendant Detroit Wayne Joint Building Authority seeking to recover for personal injuries. Plaintiffs alleged that on December 18, 1981, they were present in Recorder's Court, located in the Frank Murphy Hall of Justice in the City of Detroit. Plaintiffs were in court for the purpose of testifying against Rosie Fleming. Plaintiffs alleged that they sustained serious injuries when Fleming attacked them with a knife in the courtroom. Plaintiffs averred that their injuries, which included stab wounds, internal injuries, partial paralysis, breathing impairment, and permanent scarring, were proximately caused by defendants' inadequate provisions for security in the courthouse. Plaintiffs' complaint alleged negligence, breach of contract and nuisance.

Both defendants moved for summary judgment, GCR 1963, 117.2(1), based on governmental immunity. The trial court granted defendants' motions and entered an order dismissing plaintiffs' complaint. The court provided no basis, on the record, for its ruling.

The Supreme Court's most recent group of decisions on governmental immunity, Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), govern the majority of the issues raised in the present appeal.

Under M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107), all governmental agencies--state, county and local--are immune from tort liability to the extent that they are engaged in governmental functions. In Ross, the Supreme Court defined "governmental function" as follows:

"[A] governmental function is an activity which is expressly or impliedly mandated or authorized by constitution, statute, or other law. When a governmental agency engages in mandated or authorized activities, it is immune from tort liability, unless the activity is proprietary in nature [as defined in MCL 691.1413; MSA 3.996(113) ] or falls within one of the other statutory exceptions to the governmental immunity act." Ross, p. 620, 363 N.W.2d 641 (emphasis added).

In the present case, there is no question that both defendants came under the provisions of the governmental immunity statutes. There is no allegation that the operation of Recorder's Court is proprietary in nature. See Ross, p. 614, 363 N.W.2d 641. However, pursuant to M.C.L. Sec. 725.37; M.S.A. Sec. 27.3970(7), the county was responsible for providing facilities and utilities for the Recorder's Court of the City of Detroit. Under M.C.L. Sec. 600.1417; M.S.A. Sec. 27A.1417, the City of Detroit was required to provide courtroom security in Recorder's Court. Since operation of the Recorder's Court, including providing courtroom security, was mandated by law, both defendants were engaged in a governmental function.

Plaintiffs argue, however, that even if defendants were engaged in a governmental function, they have stated a claim in avoidance of governmental immunity by pleading implied contract, common law nuisance, and the public-buildings exception, M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106). Defendants brought their motions for summary judgment under GCR 1963, 117.2(1). Such motions test the legal sufficiency of the pleadings alone. The factual allegations made in the complaint must be presumed true along with any inferences or conclusions which may fairly be drawn from them. Unless the claim is so unenforceable as a matter of law that no factual development could possibly justify recovery, the motion should not be granted. Romeo v. Van Otterloo, 117 Mich.App. 333, 337, 323 N.W.2d 693 (1982).

Plaintiffs argue that their complaint alleges that defendants expressly and impliedly contracted to be responsible for plaintiffs' safety. In Ross, the Supreme Court held that "[i]f a plaintiff successfully pleads and establishes a non-tort cause of action, [M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107) ] will not bar recovery simply because the underlying facts could have also established a tort cause of action". Ross, 420 Mich. pp. 647-648, 363 N.W.2d 641. In paragraph six of their complaint, plaintiffs allege that when they entered the courtroom a contract was created whereby defendants expressly and impliedly agreed to be responsible for plaintiffs' safety and warranted that their premises were safe and that no injury would befall them. This is a legal conclusion and not a well-pled factual allegation. Plaintiffs fail to identify facts which could constitute an offer, acceptance, consideration, reliance or other facts which would give rise to the inference that a contract existed. See Stann v. Ford Motor Co., 361 Mich. 225, 105 N.W.2d 20 (1960); GCR 1963, 113.3. Therefore, plaintiffs have failed to state a claim for breach of contract. GCR 1963, 117.2(1).

Plaintiffs argue that their cause of action comes within the public-buildings exception to governmental immunity. A governmental agency is statutorily liable for personal injuries arising out of dangerous or defective conditions in public buildings under the agency's control. M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106). Ross, 420 Mich. p. 591, 363 N.W.2d 641. It is clear that the Legislature intended this provision to impose a broad duty on the government to maintain safe public places. A building may be dangerous or defective because of improper design, faulty construction or the absence of safety devices. Bush v. Oscoda Area Schools, 405 Mich. 716, 730, 275 N.W.2d 268 (1979).

However, plaintiffs do not allege that their injuries were sustained from a structural part of the building or a fixture attached thereto. Zawadzki v. Taylor, 70 Mich.App. 545, 551, 246 N.W.2d 161 (1976), lv. den. 399 Mich. 875 (1977). Plaintiffs do not allege that the courtroom was being used in a manner for which it was not intended. Unlike in the cases cited by plaintiffs, Bush, supra, and Lockaby v. Wayne County, 406 Mich. 65, 276 N.W.2d 1 (1979), the courtroom in the present case was being used as expected, as a courtroom. Plaintiffs' allegations concerning the defective or dangerous condition of Recorder's Court stem not from the condition of the building itself but from the activities or operations conducted within the building. Consequently, plaintiffs have not stated a claim within the public-buildings exception. Vargo v. Svitchan, 100 Mich.App. 809, 822-823, 301 N.W.2d 1 (1980), app. dis. 411 Mich. 1035 (1982).

Plaintiffs' final contention is that they have pled a nuisance cause of action in avoidance of governmental immunity. In Ross, the Supreme Court reaffirmed governmental liability for nuisance. The Court also affirmed this Court's holding that a claim for nuisance is not stated where plaintiff merely reformulates a negligence claim. Ross, 420 Mich. p. 657, 363 N.W.2d 641. Defendants argue in the present case that plaintiffs' allegations are merely allegations of negligence for which they are immune from liability.

Plaintiffs averred that defendants created and maintained a nuisance by failing to take the necessary measures to prevent personal injuries with knowledge of the regular attendance of known criminals and dangerous persons in the building and with knowledge that other courthouses had security measures and metal detectors. Plaintiffs alleged that defendants caused harm and injuries by allowing a deceptive appearance of safety to exist through the stationing of inadequate personnel and committed affirmative acts of intentional nuisance by refusing to install metal detectors to protect persons such as the plaintiffs.

Liability for nuisance is predicated on the existence of a dangerous condition:

"Primarily, nuisance is a condition. Liability is not predicated on tortious conduct through action or inaction on the part of those responsible for the condition. Nuisance may result from want of due care (like a hole in a highway), but may still exist as a dangerous, offensive, or hazardous condition even with the best of care." Buckeye Union Fire Ins. Co. v. Michigan, 383 Mich. 630, 636, 178 N.W.2d 476 (1970).

In Buckeye, supra, the state took title to property which had an unoccupied plant located on it. Buildings on the state's property caught fire and the fire spread to neighboring property. The plaintiff alleged that because the unoccupied plant was readily accessible to vandals and trespassers a fire hazard was created which constituted a nuisance to the neighboring property. The Supreme Court agreed stating:

"It was in the very nature of the nuisance involved in this case--a fire hazard--that eventually negligent or lawless acts or sheer chance or an act of God (lightning) would convert the peril to the neighboring land into a destructive force--the hazard--the nuisance took its toll. Damage to plaintiffs flowed from the nuisance and the mere fact that negligence may have existed in a variety of acts or by inaction by the state during the continuing period of the nuisance will not permit it to escape its liability." ...