Mitchell v. Michigan Dept. of Corrections, Docket No. 52567

• Decision Date: 04 May 1982
• Docket Number: Docket No. 52567
• Citation: 113 Mich.App. 739,318 N.W.2d 507
• Parties: Phillip MITCHELL, Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF CORRECTIONS, Defendant-Appellee. 113 Mich.App. 739, 318 N.W.2d 507
• Court: Court of Appeal of Michigan — District of US

Page 507

318 N.W.2d 507

Phillip MITCHELL, Plaintiff-Appellant, v. MICHIGAN DEPARTMENT OF CORRECTIONS, Defendant-Appellee.

Docket No. 52567.

113 Mich.App. 739, 318 N.W.2d 507

Court of Appeals of Michigan.

Submitted June 12, 1981.

Decided March 2, 1982.

Released for Publication May 4, 1982.

[113 MICHAPP 741] Charfoos, Christensen, Gilbert & Archer, P.C. by John G. Konkel, Detroit, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Mark I. Leach, Asst. Atty. Gen., for defendant-appellee.

Before DANHOF, C. J., CAVANAGH and FREEMAN ^*, JJ.

FREEMAN, Judge.

Plaintiff appeals by right the dismissal of his action for damages in the Court of Claims. His complaint alleged that he was beaten and injured by fellow inmates while incarcerated in the City of Trenton jail. The claim of liability was premised on theories of nuisance and defendant's duty to maintain safely public buildings under its control, imposed by MCL 691.1406; MSA Sec. 3.996(106). The judge granted defendant's motion for summary judgment for failure to state a claim, GCR 1963, 117.2(1). Alternately, he granted accelerated judgment, holding the suit was barred by the doctrine of governmental immunity.

A motion for summary judgment under GCR 1963, 117.2(1) tests the legal sufficiency of a claim as it appears in the pleadings. The motion should [113 MICHAPP 742] be denied unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify recovery. Norberg v. City of Muskegon, 104 Mich.App. 329, 304 N.W.2d 573 (1981).

Plaintiff claimed that defendant was responsible for creating or maintaining the Trenton jail as a nuisance, based on defendant's duty to supervise and inspect local jails pursuant to M.C.L. Sec. 791.262; M.S.A. Sec. 28.2322. Liability for damage caused by a nuisance may only be imposed on a defendant who was in control of the nuisance, either through ownership or otherwise. Coburn v. Public Service Comm., 104 Mich.App. 322, 304 N.W.2d 570 (1981); Stemen v. Coffman, 92 Mich.App. 595, 285 N.W.2d 305 (1979). Unless the defendant has created the nuisance, owned or controlled the property from which it arose or employed another to do work knowing it would likely create a nuisance, liability may not be imposed under a nuisance theory. Stemen, supra, 598, 285 N.W.2d 305. In Stemen this Court held that liability for nuisance could not be based on a city's duty to inspect buildings for housing code compliance. In Coburn, supra, this Court held that liability for nuisance could not be premised on the Public Service Commission's duty to order the installation of safety equipment at railroad crossings.

M.C.L. Sec. 791.262; M.S.A. Sec. 28.2322 imposes upon defendant the responsibility to supervise and inspect local jails to obtain facts pertaining to the usefulness and proper management of said jails. Defendant is directed by the statute to promulgate rules and standards for the administration of local jails and is allowed to enforce its reasonable orders concerning administration of local jails by mandamus or injunction in the circuit court of the [113 MICHAPP 743] county where the jail is located, through proceedings instituted by the attorney general. The power to make orders concerning the administration of local jails is insufficient to constitute control for the purposes of a nuisance action. A party does not control premises when its control may only be exercised through court action. Control over a city prison, like control over other city agencies, is vested in the city's governing body. M.C.L. Sec. 117.4j; M.S.A. Sec. 5.2083. Since plaintiff based his claim that defendant controlled the Trenton jail on defendant's statutory duties only, the trial judge properly rejected his claim as a matter of law.

For essentially the same reasons, we affirm the trial judge's holding that plaintiff's complaint failed to state a claim against defendant under the public building exception to the doctrine of governmental immunity. M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106). To recover under the statute, a plaintiff must first show that the defendant was an owner, a lessee or in control of the premises in question. Burrill v. Michigan, 90 Mich.App. 408, 411, 282 N.W.2d 337 (1979).

Home rule cities may provide in their charters for the acquisition and maintenance of city prisons. M.C.L. Sec. 117.4e; M.S.A. Sec. 5.2078. Persons may be incarcerated in city prisons for the violation of a city's laws or ordinances. M.C.L. Sec. 117.4i(10); M.S.A. Sec. 5.2082(10). Control over a city prison, like control over other city agencies, is vested in a city's governing body. M.C.L. Sec. 117.4j; M.S.A. Sec. 5.2083. Control may be concurrent in certain cases. See Green v. Dep't of Corrections, 386 Mich. 459, 465, 192 N.W.2d 491 (1971). In the present case, defendant's role is that of a regulator and not that of an administrator. The trial judge correctly held that plaintiff failed to state a claim under the public building statute.

[113 MICHAPP 744] Plaintiff finally argues that the grant of summary judgment was improper in light of the Supreme Court's decision in Green v. Dep't of Corrections, supra. In that case, plaintiff sued the Department for injuries he suffered while incarcerated in the Detroit House of Correction. The Court stated:

"The controlling question is whether the state, through the Department of Corrections, may be held to respond in damages for tortious injury sustained by a state-sentenced convict while he is incarcerated in the Detroit House of Correction." Id., 462, 192 N.W.2d 491.

In holding that the doctrine of governmental immunity did not bar the suit, the Court reasoned:

" * * * the legislature has created the Department of Corrections for the purpose of concentrating with that department the primary (but not exclusive of course) responsibility for the well-being as well as the disciplinary rehabilitation of state-sentenced prisoners, whenever such prisoners are held in any penal institution over which Corrections has jurisdiction and the power--whether exercised or not--to promulgate rules and standards relating thereto. No matter where Corrections may choose lawfully or need lawfully to incarcerate or permit incarceration of any such prisoner, its duty to him...