Rakowski v. Sarb
| Decision Date | 07 February 2006 |
| Docket Number | No. 261255.,261255. |
| Citation | 713 N.W.2d 787,269 Mich. App. 619 |
| Parties | Marjorie L. RAKOWSKI and Anthony Rakowski, Plaintiffs-Appellees/Cross-Appellants, v. Michael SARB, Defendant-Appellant/Cross-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Donald M. Fulkerson, Westland, Bret A. Schnitzer, Lincoln Park, and Michael T. Materna, Madison Heights, for the plaintiffs.
Cummings, McClorey, Davis & Acho, P.L.C. (by Joseph Nimako and Karie Holder Boylan), Livonia, for the defendant.
Before: SAAD, P.J., and HOEKSTRA and MARKEY, JJ.
Plaintiffs' personal injury claim against defendant raises an issue of first impression under Michigan law: Whether a municipal building inspector owes a duty of care under common-law negligence to protect a homeowner's invitee from personal injury sustained by the invitee because of an allegedly defective structure inspected and approved by the building inspector. Neither state statute nor the building code adopted by the city imposes such a duty on a building inspector. Further, our application of the factors historically used to determine whether a common-law duty exists compels the conclusion that the municipal building inspector, Michael Sarb, did not owe a duty to plaintiff Marjorie L. Rakowski. Because Ms. Rakowski failed to establish that Mr. Sarb owed a duty under Michigan negligence law, the trial court should have granted summary disposition to Mr. Sarb.
On May 10, 2001, Ms. Rakowski sustained injuries when the railing gave way on a ramp for the handicapped at the home of her parents, Arthur and Virginia Kalis. The record reflects that Ms. Rakowski's father, Arthur Kalis, applied for the building permit for the ramp from the city of Dearborn Heights and that the city issued the permit on August 13, 1999. Contrary to a statement in the permit application that Arthur Kalis would construct the ramp, Kalis hired Len Cytacki, doing business as Alenda Carpentry, to build the ramp in August 1999. However, before Cytacki completed the handrail, Cytacki was fired or quit the job. According to Cytacki, before he left the Kalis home, he informed someone at the house that the railing was incomplete and was told that someone else would finish it.
Arthur Kalis died on February 17, 2000, and no evidence shows that the Kalises performed any additional work to complete the ramp. Indeed, several months before the accident, Ms. Rakowski's brother-in-law, Charles Carrig, offered to reinforce the railing with additional screws because he saw that it was bowing and insecure but Ms. Rakowski told him that her husband would reinforce the railing.
Documents show that defendant, Mr. Sarb, a Dearborn Heights building inspector, conducted an inspection of the ramp and other building projects at the Kalis house on October 20, 2000. Though he had no independent recollection of the inspection, Mr. Sarb acknowledged that he initialed and wrote "okay" on the final inspection form for the ramp. According to Mr. Sarb and another building official, Claudette Whitehead, Dearborn Heights inspectors conduct only visual inspections to determine whether structures meet local building code requirements. It is undisputed that Dearborn Heights building inspectors do not conduct "destructive" testing or stress tests to determine whether structures meet weight bearing requirements.
On November 20, 2001, Ms. Rakowski filed a complaint against her mother (Virginia Kalis) and her father's estate, and she later added Cytacki as a defendant. Ms. Rakowski alleged that her parents and Cytacki negligently built and maintained the ramp and railing. Ms. Rakowski further claimed that her parents warranted that the ramp was safe, despite their knowledge of the defective or incomplete railing. On April 28, 2003, Ms. Rakowski received an arbitration award of $220,000, which was paid by her mother, her father's estate, and Cytacki. In the same month, Ms. Rakowski filed this action against Mr. Sarb, asserting that he was negligent, or grossly negligent, when he conducted the inspection of the handicap ramp. According to Ms. Rakowski, Mr. Sarb breached a duty to ensure that the railing complied with construction standards and the Building Officials and Code Administrators National Building Code (the BOCA code). Also, Ms. Rakowski later alleged that Mr. Sarb should be estopped from denying that he was an independent contractor, rather than an employee of Dearborn Heights, so that he is not entitled to immunity under the governmental tort liability act, MCL 691.1401 et seq.
In April 2004, defendant moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10). Defendant argued that he did not owe Ms. Rakowski a common-law duty and that his conduct did not proximately cause Ms. Rakowski's alleged injury. He further claimed that he is entitled to immunity under MCL 691.1407 because he was not grossly negligent and his conduct was not the proximate cause of Ms. Rakowski's injuries. Judge Louis F. Simmons, Jr., granted defendant's motion under MCR 2.116(C)(7) and (10) on July 19, 2004, and held that defendant was an employee of Dearborn Heights and that he is immune from suit because Ms. Rakowski could not establish that he was grossly negligent.
Thereafter, the case was reassigned to Judge Robert J. Colombo, Jr., and Judge Colombo granted Ms. Rakowski's motion for reconsideration of Judge Simmons's decision. Defendant later filed a second motion for summary disposition and again argued that (1) he did not owe Ms. Rakowski a common-law duty that supported a claim for negligence, (2) any alleged breach of duty was not the proximate cause of Ms. Rakowski's injury, (3) he was an employee of the city of Dearborn Heights and, therefore, entitled to governmental immunity, and (4) he was not grossly negligent. Judge Colombo denied defendant's second motion for summary disposition and ruled that there is a question of fact whether defendant was an employee of the city of Dearborn Heights, that defendant owed a common-law duty to Ms. Rakowski, and that there is a question of fact whether defendant's conduct was the proximate cause of Ms. Rakowski's injuries. However, Judge Colombo also held that no reasonable juror could find that defendant was grossly negligent and that defendant would be entitled to summary disposition on governmental immunity grounds if the jury were to find that he was an employee of the city of Dearborn Heights.
As a preliminary matter, the trial court incorrectly concluded that the jury must decide whether Mr. Sarb was an employee of the city of Dearborn Heights for purposes of the governmental tort liability act. The relevant statute, MCL 691.1407(2), grants immunity to governmental officers and employees acting on behalf of a governmental agency engaged in the exercise or discharge of a governmental function, provided the officer's or employee's conduct does not amount to gross negligence that is the proximate cause of an injury or damage.
The trial court used the economic-realities test to determine Mr. Sarb's employment status, but concluded that there remained a question of fact regarding whether Mr. Sarb was an employee or an independent contractor when he worked as a building inspector for Dearborn Heights. As this Court explained in Mantei v. Michigan Pub. School Employees Retirement Sys. & Michigan Pub. School Employees Retirement Bd., 256 Mich.App. 64, 78-79, 663 N.W.2d 486 (2003):
The economic-reality test considers four basic factors: (1) control of a worker's duties, (2) payment of wages, (3) right to hire, fire, and discipline, and (4) performance of the duties as an integral part of the employer's business toward the accomplishment of a common goal. Clark v. United Technologies Automotive, Inc., 459 Mich. 681, 688, 594 N.W.2d 447 (1999); Chilingirian [v. City of Fraser, 194 Mich.App. 65, 69, 486 N.W.2d 347 (1992)]; Parham v. Preferred Risk Mut. Ins. Co., 124 Mich.App. 618, 624, 335 N.W.2d 106 (1983). This test considers the totality of the circumstances surrounding the work performed. Chilingirian, supra at 69, 486 N.W.2d 347. No single factor is controlling and, indeed, the list of factors is nonexclusive and other factors may be considered as each individual case requires. Clark, supra at 689, 594 N.W.2d 447. Thus, the element of control, "although abandoned as an exclusive criterion upon which the relationship can be determined, is a factor to be considered along with payment of wages, maintenance of discipline and the right to engage or discharge employees." McKissic v. Bodine, 42 Mich.App. 203, 208, 201 N.W.2d 333 (1972). Weight should be given to those factors that most favorably effectuate the objectives of the statute in question. Id. at 209, 201 N.W.2d 333.
"Employee" is not defined in MCL 691.1407(2), and our case law provides that, if statutory terms are undefined, they "must be given their plain and ordinary meanings, and it is proper to consult a dictionary for definitions." Halloran v. Bhan, 470 Mich. 572, 578, 683 N.W.2d 129 (2004). The Random House Webster's College Dictionary (1992), defines "employee" as "a person who has been hired to work for another."
Under either the "plain and ordinary meaning" analysis or the economic-realities test, there is no genuine issue of material fact that defendant was an employee for purposes of MCL 691.1407(2). The undisputed facts demonstrate that defendant was hired to work for the city of Dearborn Heights as a building inspector and, therefore, was an "employee" under the plain and ordinary meaning of that term as used in MCL 691.1407(2).1 Furthermore, aside from the payment of wages and benefits, defendant was treated as an employee of the city, not as an...
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