McDowell v. City of Detroit

• Decision Date: 11 April 2007
• Docket Number: COA No. 246294.,Docket No. 127660.
• Parties: Joyce McDOWELL, as Personal Representative of the estates of Blake Brown, Joyce Brown, and Christopher Brown, deceased, and as Conservator for Jonathon Fish, Joanne Campbell, and Juanita Fish, Plaintiff-Appellee, v. CITY OF DETROIT and the Detroit Housing Commission, Defendants-Appellants.
• Court: Michigan Supreme Court

729 N.W.2d 227 477 Mich. 1079 Joyce McDOWELL, as Personal Representative of the estates of Blake Brown, Joyce Brown, and Christopher Brown, deceased, and as Conservator for Jonathon Fish, Joanne Campbell, and Juanita Fish, Plaintiff-Appellee,
v.
CITY OF DETROIT and the Detroit Housing Commission, Defendants-Appellants. Docket No. 127660. COA No. 246294. Supreme Court of Michigan. April 11, 2007.

On order of the Court, leave to appeal having been granted, and the briefs and oral argument of the parties having been considered by the Court, we hereby REVERSE the judgment of the Court of Appeals and REMAND this case to the Wayne Circuit Court for entry of a judgment in favor of defendants. "Except as otherwise provided in [the governmental immunity] act, a governmental agency is immune from tort liability if the governmental agency is engaged in the exercise or discharge of a governmental function." MCL 691.1407(1). The interpretation of the governmental tort liability act set forth in Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 422 N.W.2d 205 (1988), applies to all cases brought on or before April 2, 2002, which includes the instant case. Pohutski v. City of Allen Park, 465 Mich. 675, 699, 641 N.W.2d 219 (2002). As plaintiff concedes, the Court of Appeals erred in holding that negligent nuisance is an exception to governmental immunity under Hadfield. The Court of Appeals also erred in holding that plaintiff presented sufficient evidence to create a genuine issue of material fact allowing plaintiff to proceed with the cause of action for trespass nuisance. Because the fire started within the walls of the leased apartment and a lease of an apartment includes the walls of that apartment, Forbes v. Gorman, 159 Mich. 291, 294, 123 N.W. 1089 (1909), there was no trespass or any other physical intrusion into the apartment on the part of the defendant.¹ The provision

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of the lease that prohibited the lessee from making any "alterations or repairs or redecoration to the interior of the Premises or to install additional equipment or major appliances without the written consent of Management" did not exclude from the lease the space within the walls; it merely regulated the lessee's activities with respect to this space. If plaintiff's argument to the contrary was to prevail, this would mean that the lessee had no right of possession over any of the apartment because the lessee could not make any alterations or repairs anywhere within the apartment without the lessor's consent.²

MICHAEL F. CAVANAGH, J., dissents and states as follows:

I dissent from the order reversing the judgment of the Court of Appeals in this case. As a preliminary matter, I would grant plaintiff's motion for a stay of proceedings in this case. Litigation regarding the constitutionality of this Court's recusal procedures is currently pending in the federal court system. See Fieger v. Ferry, 471 F.3d 637 (C.A.6, 2006) (reversing the United States District Court for the Eastern District of Michigan and remanding the case to that court for further proceedings). Because plaintiff has asked several justices to recuse themselves from participating in this case, and those justices have declined to do so, the most prudent course of action would be to await the final disposition of the federal suit.

Regarding the substance of the majority's order, the majority is simply wrong to base its conclusion that there was no trespass on its observation that "the fire started within the walls of the leased apartment . . . ." Ante at 227. By failing to examine more precisely where the fire began and the source of that fire, the majority erroneously denies any possibility of recovery for the tragic and preventable deaths of six children.

Indisputably, the fire began in an electrical outlet because of faulty wiring in that outlet.³ While the wiring to the outlet

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was "within the walls," the walls of plaintiff's apartment did not spontaneously combust. Rather, the faulty electrical wiring, which the tenant had pleaded with defendants many times to fix, ignited, causing the walls to burn. And not only did the tenant not have control of the electrical wiring, the tenant's contract also specifically placed the duty of maintaining the electrical systems on defendants. Critically, section VII(A)(1) of the lease imposed the following contractual obligations on defendants:

a. Repair and maintain the dwelling unit, equipment and appliances, and the common areas and facilities which are needed to keep the housing in decent, safe and sanitary condition.

b. Comply with all requirements of applicable state and local building and housing codes and HUD regulations concerning matters materially affecting the health or safety of the occupants.

c. Keep development buildings, facilities, and common areas, not otherwise assigned to Residents for maintenance and upkeep, in a clean and safe condition.

d. Maintain electrical, plumbing, sanitary, heating, ventilating and other facilities and appliances, supplied or required to be supplied by Management in good and safe working order and condition.

* * *

k. Respond to and satisfy Resident's damage claims, unless Management determines that Resident's damage(s) or loss was not caused by Management but by theft or casualty, among other things, in which case Management shall not be liable.

Obviously, the tenant neither installed nor maintained the electrical wiring within her apartment, which wiring, it is worth noting, was part of an electrical system serving an entire building. And it is self-evident that the tenant did not have the right to alter or otherwise interfere with the apartment building's electrical system. Clearly, defendants, not the tenant, had control and dominion over the electrical wiring. Of course, the majority does not opine, nor did defendants argue, that the tenant controlled the wiring, for such a conclusion would be difficult to sustain indeed. Rather, the majority turns a blind eye and proclaims instead that the fire began "within the walls." Ante at 227 n. 1. That red herring of a conclusion blatantly ignores the true origin of the fire as shown by expert testimony, through which it was established that the fire originated inside the electrical outlet as the result of electrical "arcing," which, in turn, "ignite[ed] fuels in the wall space including, but not limited to, any insulating materials that were in there that may have had a combustible component. . . ." Thus, the majority's dismissal of this case based on its interpretation of law regarding control over walls is truly egregious.

But the majority errs again in stating that "a lease of an apartment includes the walls of that apartment" because it cannot be said that the tenant had a right of control that in any way negated defendants' duties, despite the majority's citation of Forbes v. Gorman, 159 Mich. 291, 123 N.W. 1089 (1909). In Forbes, this Court stated, "[s]uch lessee obtains the right, in the absence of restrictions, to use such premises, including the walls, for all purposes not inconsistent with the lease. He acquires the right to the use of the outer walls, and can put any sign or signs thereon which work no injury to the freehold. . . ." Id. at 294, 123 N.W. 1089 (emphasis added). Because the area of inquiry in Forbes was the roof of the subject building, this Court's comment with respect to the walls might be considered

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obiter dictum. But even were the principle announced in Forbes given full force, the lease in the present case contained restrictions regarding the walls, as noted by the majority, and Forbes explicitly excepted such restrictions from its analysis. The majority defies logic by asserting that the lease contemplated restricting only the tenant's use of the outer surface of the wall, while leaving intact her right to control and alter the inner space between the walls.⁴

In Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 422 N.W.2d 205 (1988), this Court set forth the elements of trespass-nuisance as "condition (nuisance or trespass); cause (physical intrusion); and causation or control (by government)." Id. at...