Page v. Klein Tools, Inc., Docket No. 112464, Calendar No. 4.

• Decision Date: 25 April 2000
• Docket Number: Docket No. 112464, Calendar No. 4.
• Citation: 461 Mich. 703,610 N.W.2d 900
• Parties: Kenneth PAGE, Plaintiff-Appellee, v. KLEIN TOOLS, INC., Consumers Power Company, and Power Line Supply Company, Inc., Defendants-Appellees, and American Line Builders Apprenticeship Training Program, Defendant-Appellant.
• Court: Michigan Supreme Court

610 N.W.2d 900

461 Mich. 703

Kenneth PAGE, Plaintiff-Appellee, v. KLEIN TOOLS, INC., Consumers Power Company, and Power Line Supply Company, Inc., Defendants-Appellees, and American Line Builders Apprenticeship Training Program, Defendant-Appellant.

Docket No. 112464, Calendar No. 4.

Supreme Court of Michigan.

Argued December 8, 1999.

Decided April 25, 2000.

Sommers, Schwartz, Silver & Schwartz, P.C. (by Robert H. Darling), Southfield, for the plaintiff-appellee.

O'Neill, Wallace & Doyle, P.C. (by David A. Wallace and John J. Danieleski, Jr.), Saginaw, for the defendant-appellant.

Opinion

YOUNG, J.

Plaintiff Kenneth Page completed a three-week course provided by defendant American Line Builders Apprenticeship Training Program (ALBAT) in which he was taught methods of climbing wooden utility poles. He later was injured when he fell from a utility pole on which he was working. He subsequently brought suit against defendant.

We granted leave in this case to determine whether plaintiff may assert a claim that defendant was negligent in failing to instruct him how to climb safely. We hold that plaintiff's allegations amount to a claim of "educational malpractice," which we decline to recognize. Accordingly, we reverse the decision of the Court of Appeals on this issue.

I. Factual and Procedural Background

In February 1993, plaintiff attended a three-week class provided by ALBAT in which he was instructed regarding how to climb a wooden utility pole using equipment designed for that purpose. At the end of the course, plaintiff purchased from ALBAT the equipment that he had used during the course. This equipment consisted of a body belt, gaffs, and a pole strap. The body belt is a leather belt designed for holding tools. It also has metal "D" rings to which the pole strap can be connected. to go around the pole and attach to the climber's body belt. The pole strap supports the climber when he leans backward. Gaffs are spikes that are strapped to the climber's legs to aid in climbing.

Shortly after completing the three-week climbing course, plaintiff was hired by the Hydaker-Wheatlake Company as an apprentice linesman. On April 3, 1993, plaintiff was working on a utility pole in Alma, Michigan. While in the process of descending the pole, he fell to the ground from a height of sixty feet, receiving serious injuries. In his deposition, plaintiff acknowledged that he does not remember anything about the fall or exactly how it happened. However, it apparently is undisputed that, at the time of his fall, he had disconnected his pole strap in order to maneuver around a "cross bar" that extended from the pole. There also is no dispute that the applicable climbing method taught by ALBAT involved the climber unhooking his pole strap from the "D" ring on his body belt, moving past the obstacle, and then rehooking the strap around the pole.

Plaintiff subsequently filed suit against ALBAT, among others. Plaintiff's first amended complaint set forth two counts against ALBAT, which significantly overlapped. Count III, labeled "Negligence," alleged in relevant part that ALBAT was negligent in supplying inappropriate climbing equipment and also in failing to provide adequate instructions, education, and warning regarding pole climbing.

Count IV was labeled "Breach of Implied Warranty." It alleged that ALBAT breached express or implied warranties by selling plaintiff equipment that was improperly designed, manufactured, and sold, that was supplied without adequate warnings and instructions, and that was supplied without independent fall arrest equipment.¹

ALBAT moved for summary disposition under MCR 2.116(C)(8) and (C)(10), arguing that it had no duty to supply plaintiff with additional equipment. ALBAT further argued that plaintiff's claim that it failed to provide adequate instruction regarding pole climbing was a claim for educational malpractice that, according to Nalepa v. Plymouth-Canton Community School Dist., 207 Mich.App. 580, 525 N.W.2d 897 (1994), was not a recognized cause of action in Michigan. The trial court granted the motion and dismissed plaintiff's complaint against ALBAT.

The Court of Appeals, in a split opinion,² affirmed in part, reversed in part, and remanded. Citing Antcliff v. State Employees Credit Union, 414 Mich. 624, 639-640, 327 N.W.2d 814 (1982), the Court held that the trial court properly dismissed plaintiff's claim sounding in products liability because ALBAT had no duty to instruct or warn that the pole strap it sold to plaintiff as a component part would be safer if used in conjunction with fall arrest equipment.³ However, the Court reversed the trial court's decision, dismissing plaintiff's claim that ALBAT was negligent for failing to provide adequate instruction regarding utility pole climbing. Although the Court of Appeals majority recognized that claims of so-called "educational malpractice" are widely disfavored, it believed plaintiff's claim to be one of "simple negligence":

This is not a case in which a plaintiff has alleged a failure in the overall educational program of an educational entity. Plaintiff is not asking the court to interfere with the purely academic decisions of an educational entity, to make judgments about the quality of broad educational policies, or to evaluate the overall quality of his education. Instead, plaintiff has made a very precise claim against a commercial vocational training entity based upon that entity's alleged failure to instruct him on the proper methods and techniques of maneuvering around an obstacle on a utility pole....

Judge Gage dissented. She argued that plaintiff "alleges failure to adequately instruct him on procedure and safety" and that such claims "lie within the area recognized as educational malpractice."

We granted defendant's application for leave to appeal. 460 Mich. 851 (1999).

II. Standard of Review

The central issue in this case is one of law: whether claims sounding in educational malpractice should be recognized in Michigan. We decide questions of law de novo. Cardinal Mooney High School v. Michigan High School Athletic Ass'n, 437 Mich. 75, 80, 467 N.W.2d 21 (1991).

III. Analysis

As an initial matter, we wish to emphasize what our decision in this case does not address. In his appellate brief, plaintiff argues that ALBAT had a duty arising out of the sale of the climbing equipment to ensure that he was thoroughly versed in all the uses and limitations of that equipment. The problem with that theory, however, is that it was already rejected by the Court of Appeals when it affirmed the trial court's decision granting summary disposition to ALBAT on plaintiff's claim "sounding in products liability." Whatever the merits of that decision, we denied plaintiff's cross-application for leave to appeal. 460 Mich. 851 (1999).⁴ Accordingly, the only issue that is now before us involves plaintiff's alternate claim that, by offering the three-week course that plaintiff attended, ALBAT assumed a duty to teach him the fundamentals of pole climbing and that it was negligent in failing to instruct him about how to do so safely.⁵

A. Educational Malpractice Defined

Peter W v. San Francisco Unified School Dist., 60 Cal.App.3d 814, 131 Cal.Rptr. 854 (1976), is considered to be the seminal case in the area of so-called "educational malpractice." There, the eighteen-year-old plaintiff sued his school district for, among other things, negligently failing to teach him "basic academic skills such as reading and writing." Id. at 818, 131 Cal.Rptr. 854. Refusing to recognize a cause of action for what it characterized as "educational malfeasance," the California court reasoned:

On occasions when the Supreme Court has opened or sanctioned new areas of tort liability, it has noted that the wrongs and injuries involved were both comprehensible and assessable within the existing judicial framework.... This is simply not true of wrongful conduct and injuries allegedly involved in educational malfeasance. Unlike the activity of the highway or the marketplace, classroom methodology affords no readily acceptable standards of care, or cause, or injury. The science of pedagogy itself is fraught with different and conflicting theories of how or what a child should be taught, and any layman might—and commonly does—have his own emphatic views on the subject. The "injury" claimed here is plaintiff's inability to read and write. Substantial professional authority attests that the achievement of literacy in the schools, or its failure, are influenced by a host of factors which affect the pupil subjectively, from outside the formal teaching process, and beyond the control of its ministers. They may be physical, neurological, emotional, cultural, environmental; they may be present but not perceived, recognized but not identified.

We find in this situation no conceivable "workability of a rule of care" against which defendants' alleged conduct may be measured ..., no reasonable "degree of certainty that ... plaintiff suffered injury" within the meaning of the law of negligence ..., and no such perceptible "connection between the defendant's conduct and the injury suffered," as alleged, which would establish a causal link between them within the same meaning. [Id. at 824-825, 131 Cal.Rptr. 854 (citations omitted).]

Peter W represents the "classic" case of educational malpractice in which a public school is alleged to have failed to adequately instruct a student in basic academic skills. Such claims, including those directed at institutions of higher learning, are uniformly disfavored.⁶ Courts have also considered and rejected educational malpractice claims arising out of an alleged misdiagnosis of learning disabilities.⁷

Various public policy grounds have been advanced by those courts that have refused to recognize claims of educational malpractice, including:

(1) the lack of a satisfactory standard of care by which to evaluate an educator; (2)

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