Scameheorn v. Bucks

• Decision Date: 31 May 1988
• Docket Number: No. 93145,93145
• Citation: 421 N.W.2d 918,46 Ed. Law Rep. 406,167 Mich.App. 302
• Parties: Christopher W. SCAMEHEORN, Plaintiff-Appellant, v. Robert Louis BUCKS, Jr., Tammy Briese, River Valley School District, Charles Williams, Donald Bussler, Steven Lenar, and David Van Ginhoven, Defendants- Appellees, and Douglas James Hauch, Defendant. 167 Mich.App. 302, 421 N.W.2d 918, 46 Ed. Law Rep. 406
• Court: Court of Appeal of Michigan — District of US

Page 918

421 N.W.2d 918

Christopher W. SCAMEHEORN, Plaintiff-Appellant, v. Robert Louis BUCKS, Jr., Tammy Briese, River Valley School District, Charles Williams, Donald Bussler, Steven Lenar, and David Van Ginhoven Defendants- Appellees and Douglas James Hauch, Defendant.

No. 93145.

167 Mich.App. 302, 421 N.W.2d 918, 46 Ed. Law Rep. 406

Court of Appeals of Michigan.

Submitted May 6, 1987.

Decided March 21, 1988.

Released for Publication April 19, 1988.

Leave to Appeal Denied May 31, 1988.

[167 MICHAPP 304] Seymour-Conybeare Law Office by John C. Johnson and Bruce C. Conybeare, St. Joseph, and Gruel, Mills, Nims & Pylman by William F. Mills, Grand Rapids, of counsel, for plaintiff-appellant.

Fisher, Troff & Fisher by L. David Lawson, St. Joseph, for defendants-appellees River Valley School Dist., Donald Bussler, Steven Lenar, David VanGinhoven and Charles Williams.

Before CYNAR, P.J., and SAWYER and THORBURN, ^* JJ.

CYNAR, Presiding Judge.

Plaintiff appeals as of right from an April 15, 1986, judgment and order of summary disposition on the basis of governmental immunity entered in favor of defendants-appellees River Valley[167 MICHAPP 305] School District, Charles Williams, David VanGinhoven, Donald Bussler and Steven Lenar.

The facts, as alleged in plaintiff's pleadings, are as follows: On or about April 29, 1985, at 7:45 a.m., plaintiff was a passenger on a motorcycle driven by defendant Robert L. Bucks, Jr., on the driveway of the River Valley High School. The operator of the motorcycle drove onto the sidewalk adjacent to the driveway so as to avoid the speed bumps in the school driveway. At the same time, defendant Douglas J. Hauch was approaching from the opposite direction in his truck, which was also driven on the sidewalk to avoid the speed bumps. A collision resulted and plaintiff suffered serious injuries.

As a result thereof, plaintiff filed a complaint on July 19, 1985. Thereafter, plaintiff filed two amended complaints. The second amended complaint alleged as to defendant River Valley that a dangerous or defective condition had been created or maintained at the high school due to the speed bumps. In addition, plaintiff alleged that the existence of the speed bumps constituted an intentional nuisance or nuisance per se and that River Valley was vicariously liable for the acts of employees Williams, VanGinhoven, Bussler and Lenar.

On February 4, 1986, defendants-appellees filed their motion for summary disposition alleging immunity from liability on the basis of M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107). On April 15, 1986, following the hearing on the motion held on March 25, 1986, the trial court granted defendants-appellees' motion. Plaintiff filed a motion for reconsideration, which was denied on May 27, 1986. The instant appeal ensued.

Plaintiff raises four issues on appeal. First, he argues that the lower court erred in granting [167 MICHAPP 306] summary disposition in favor of River Valley on the basis that the public buildings exception to governmental immunity, M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106), was inapplicable. We do not agree.

Defendants' motion was brought pursuant to MCR 2.116(C)(7), (8) and (10). The judgment which granted defendants' motion does not state the subrule(s) under which it was issued.

A motion for summary disposition pursuant to MCR 2.116(C)(8) tests only the legal sufficiency of the pleadings. The court must accept as true all well-pled factual allegations as well as any conclusions which can reasonably be drawn therefrom. The court may grant the motion only when the claim, on the pleadings alone, is so clearly unenforceable as a matter of law that no factual development could possibly justify the right to recovery. Abel v. Eli Lilly & Co., 418 Mich. 311, 323, 343 N.W.2d 164 (1984), reh. den. 419 Mich. 1201 (1984), cert den sub nom E.R. Squibb & Sons, Inc. v. Abel, 469 U.S. 833, 105 S.Ct. 123, 83 L.Ed.2d 65 (1984); Stewart v. Isbell, 155 Mich.App. 65, 74, 399 N.W.2d 440 (1986).

In contrast, a summary disposition motion under MCR 2.116(C)(10) based on the lack of a genuine issue of material fact tests whether there is factual support for the claim. The court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it. Giving the benefit of any reasonable doubt to the nonmoving party, the court must determine whether the type of record which might be developed would leave open an issue upon which reasonable minds might differ. Fulton v. Pontiac General Hospital, 160 Mich.App. 728, 735, 408 N.W.2d 536 (1987). This Court is liberal in finding a genuine issue of material fact. Rizzo v. Kretschmer, 389 Mich. 363, 371-373, 207 N.W.2d 316 (1973). Where immunity from [167 MICHAPP 307] suit is at issue, the complaint must plead facts in avoidance of immunity. McCann v. Michigan, 398 Mich. 65, 77, 247 N.W.2d 521 (1976); Veeneman v. Michigan, 143 Mich.App. 694, 697-698, 373 N.W.2d 193 (1985), lv. gtd. 424 Mich. 876 (1986).

Plaintiff argues that the factual assertions in his second amended complaint show the existence of a "defective sidewalk/configuration or structure which encouraged motorists to drive on the sidewalk to avoid 'speed bumps' in the driveway." Plaintiff claims that these allegations state a claim within the public buildings exception to immunity. In addition, plaintiff claims as error the trial judge's determination that there was no defective or dangerous condition on the school grounds since this finding is a factual one within the province of a jury.

In Bush v. Oscoda Area Schools, 405 Mich. 716, 730-732, 275 N.W.2d 268 (1979), a majority of the Supreme Court agreed on several principles governing the application of the "defect in a public building" exception. A dangerous or defective condition may exist because of improper design, faulty construction, or the absence of safety devices. The question regarding whether a part of a building is dangerous or defective is to be determined in light of the use or purpose that part is intended to serve. The existence of a defect and its relation to the alleged injuries are to be determined by the trier of fact.

This Court has held that where the claim of liability arises not from a defect or dangerous condition in the building or its premises, but from a failure to properly supervise activities conducted in the building or on its premises, the exception is inapplicable. Grames v. King, 123 Mich.App. 573, 577, 332 N.W.2d 615 (1983), modified on other grounds 422 Mich. 887, 368 N.W.2d 219 (1985); Lee v. Highland Park [167 MICHAPP 308] School Dist, 118 Mich.App. 305, 309, 324 N.W.2d 632 (1982), lv. den. 422 Mich. 902, 368 N.E.2d 245 (1985).

In this case, the trial court considered the pleadings, affidavits and depositions in making its determination regarding the public buildings exception. The trial judge concluded that the speed bumps were not defective because they were fit for their intended use. Instead, it was the misuse by plaintiff of the speed bumps which led to his injuries.

We concur in the trial court's findings. The speed bumps were placed on the driveway in order to maintain lower speeds. The accident occurred not as a result of some defect in the speed bumps. It resulted when plaintiff tried to avoid using the speed bumps for their intended purpose. Thus, summary disposition was proper.

Plaintiff also argues that the speed bumps constituted an intentional nuisance since drivers tended to use the sidewalk to avoid them and this fact was known to the school district. Moreover, plaintiff claims, a factual issue was made out as to whether the school district created or maintained an intentional nuisance.

To establish an intentional nuisance claim against a governmental agency, a plaintiff must show that there is a condition which is a nuisance and that the agency intended to create that condition. Guilbault v. Dep't of Mental Health, 160 Mich.App. 781, 788, 408 N.W.2d 558 (1987). In Garcia v. City of Jackson, 152 Mich. App. 254, 259-260, 393 N.W.2d 599 (1986), Judge R.B. Burns of our Court discussed this concept. Citing Rosario v. Lansing, 403 Mich. 124, 142, 268 N.W.2d 230 (1978), and Gerzeski v. Dep't of State Highways, 403 Mich. 149, 161-162, 268 N.W.2d 525 (1978), Judge Burns provided the following definition of a "nuisance":

" 'In order to find an intentional nuisance, the [167 MICHAPP 309] trier of fact must decide based upon the evidence presented that the government agency intended to bring about the conditions which are in fact found to be a nuisance. This finding comports with the definition of intentional nuisance set forth in Denny v Garavaglia, 333 Mich 317, 331; 52 NW2d 521 (1952):

" ' "A second [type of nuisance] includes nuisances which are intentional, using that word as meaning not that a wrong or the existence of a nuisance was intended but that the creator of them intended to bring about the conditions which are in fact found to be a nuisance." ' " [152 Mich.App. 260, 393 N.W.2d 599.]

There are two conflicts in this Court regarding nuisance claims. The first conflict centers on whether an omission may constitute an intentional nuisance or whether an affirmative act is required. The two conflicting cases are Furness v. Public Service Comm, 100 Mich.App. 365, 370, 299 N.W.2d 35 (1980) (holding that an omission or failure to act does not constitute an intentional nuisance), and Landry v. Detroit, 143 Mich.App. 16, 25, 371 N.W.2d 466 (1985) (holding that a failure to act constitutes intentional nuisance).

The second conflict deals with what a plaintiff must show to establish the necessary intent for an intentional nuisance in fact. This conflict has been certified to the Supreme Court. In Ford v. Detroit, 91 Mich.App. 333, 336, 283 N.W.2d 739 (1979), citing Rosario and Gerzeski, this Court held that a plaintiff must show that the defendant who created or continued the nuisance knew or must have known...