Sewell v. Southfield Public Schools

• Decision Date: 01 April 1998
• Docket Number: No. 1,Docket No. 106327,1
• Citation: 576 N.W.2d 153,456 Mich. 670
• Parties: , 125 Ed. Law Rep. 214, 66 A.L.R.5th 707 Devin D. SEWELL, a minor, and Douglas B. Sewell, individually and as next friend, Plaintiffs-Appellants, v. SOUTHFIELD PUBLIC SCHOOLS, Defendant-Appellee, and Vincent Bean, Vonetta Sanders, Thomas Ridley, Defendants. Calendar
• Court: Michigan Supreme Court

Page 153

576 N.W.2d 153

456 Mich. 670, 125 Ed. Law Rep. 214,

66 A.L.R.5th 707

Devin D. SEWELL, a minor, and Douglas B. Sewell individually and as next friend, Plaintiffs-Appellants, v. SOUTHFIELD PUBLIC SCHOOLS, Defendant-Appellee and Vincent Bean, Vonetta Sanders, Thomas Ridley, Defendants.

Docket No. 106327.

Calendar No. 1.

Supreme Court of Michigan.

Argued Jan. 6, 1998.

Decided April 1, 1998.

Tucker & Hughes, P.C. by Juanita Gavin Hughes and Clarence B. Tucker, Detroit, for Plaintiffs-Appellants.

Plunkett & Cooney, P.C. by Christine D. Oldani, Detroit, for Defendant-Appellee.

Opinion

MICHAEL F. CAVANAGH, Justice.

We granted leave in this case to determine whether the defendant, Southfield Public Schools, was properly granted summary disposition on the basis of the immunity extended to governmental entities in M.C.L. § 691.1407(1); M.S.A. § 3.996(107)(1). We find that plaintiffs have alleged an actual danger or defect in the Southfield High School swimming pool so as to fall within the public building exception to governmental immunity, M.C.L. § 691.1406; M.S.A. § 3.996(106). Summary disposition in favor of the defendant was improperly granted.

I. STATEMENT OF FACTS AND PROCEEDINGS

Plaintiffs' claim is based on injuries Devin Sewell sustained during his ninth grade swimming class at Southfield High School. On November 17, 1992, Sewell and several of his classmates were instructed to swim five laps in the pool. Three students dove into the pool near the area where the pool was marked five-feet deep. Plaintiff followed suit and struck his head on the bottom of the pool. Sewell climbed out of the pool and informed the student assistant of what had happened. The student assistant told the instructor of the incident. Sewell was told to change into his clothes and lie down on the couch in the office. Later, when the head of the physical education department told Sewell to get up and call his parents, plaintiff discovered that he could not move. Ultimately, it was determined that Sewell had fractured his spine and had to undergo corrective surgery.

Plaintiffs brought the instant action against Southfield Public Schools, the swimming instructor, the instructor's student assistant, and the head of the physical education department. ¹ With respect to the school, plaintiffs alleged that the school had maintained a dangerous and defective building by having a pool with an uneven floor by improperly marking the depth of the pool, by not posting warning signs against diving in the shallow end, and by allowing students to dive in the shallow end.

In a written opinion and order, the trial court granted defendant's motion for summary disposition. It held that

[t]he complaint does not allege any facts to support a finding that the pool itself was defective or unsafe for its intended and foreseeable use. The crux of the complaint is that no one kept an eye on students to stop them from diving into the shallow end of the pool or warned them against such activity. Pursuant to [Hickey v. Zezulka (On Resubmission), 439 Mich. 408, 422, 487 N.W.2d 106 (1992) ], the Court finds that such claims amount to safety in the building, not a defect in the building and defendant school system is thus entitled to immunity.

Plaintiffs appealed, and a majority of the Court of Appeals echoed the sentiment of the trial court. It found that the dive and subsequent injuries related "to safety in a public building and allegations of improper supervision," rather than a defect or danger in the pool itself. Unpublished opinion per curiam, issued March 22, 1996 (Docket No. 169851), slip op. at 2. The dissent argued that plaintiffs had alleged a building defect, rather than a failure of supervision. We granted leave to appeal.

II. CASE LAW

A. Standard of Review

We review a motion for summary disposition de novo to determine if the moving party is entitled to judgment as a matter of law. Groncki v. Detroit Edison Co., 453 Mich. 644, 649, 557 N.W.2d 289 (1996). Defendant's motion is predicated on MCR 2.116(C)(7), which provides for summary disposition when a claim is barred by an immunity granted by law. In reviewing such a motion, a court must consider all documentary evidence filed or submitted by the parties. MCR 2.116(G)(5); Patterson v Kleiman, 447 Mich. 429, 432, 526 N.W.2d 879 (1994). However, "the contents of the complaint must be accepted as true unless specifically contradicted by the affidavits or other appropriate documentation submitted by the movant." Id. at 434, n. 6, 526 N.W.2d 879.

B. Public Building Exception

Generally, a governmental entity is immune from tort liability for actions that accrue while it is performing a governmental function. M.C.L. § 691.1407(1); M.S.A. § 3.996(107)(1). "This immunity is broad in scope, subject to a limited number of narrowly drawn exceptions." Reardon v. Dep't of Mental Health, 430 Mich. 398, 407, 424 N.W.2d 248(1988). The exception at issue in this case is the public building exception, which states in part:

Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. [M.C.L. § 691.1406; M.S.A. § 3.996(106).]

This Court has established a five-part test to determine whether the public building exception governs in a particular case. A plaintiff must establish that (1) a governmental agency is involved, (2) the public building in question is open for use by members of the public, (3) a dangerous or defective condition of the public building itself exists, (4) the governmental agency had actual or constructive knowledge of the alleged defect, and (5) the governmental agency failed to remedy the alleged defective condition after a reasonable period. Jackson v. Detroit, 449 Mich. 420, 428, 537 N.W.2d 151 (1995). The third prong of this test is at issue in this case: whether a dangerous or defective condition exists in the building itself.

Because the public building exception applies only where the physical condition of the building itself causes the injury, the government's duty is to "maintain safe public buildings, but not necessarily safety in public buildings." Reardon, supra at 417, 424 N.W.2d 248. We have previously held that a building may be dangerous or defective because of improper design, faulty construction, or the absence of safety devices. Hickey, 439 Mich. at 422, 487 N.W.2d 106. However, whether a building is dangerous or defective must be determined in light of the uses or activities for which it is assigned. Id. Thus, in certain circumstances the public building exception will not apply where proper supervision would have offset any shortcomings in the configuration of the room. Id. As we explained in deSanchez v. Mental Health Dep't:

In Reardon and Schafer [v. Ethridge, 430 Mich. 398, 424 N.W.2d 248], sexual assaults on a student and patient were found not to state a claim in avoidance of governmental immunity because the building, which was being used for its intended purpose, was not defective. Unlike Bush [v. Oscoda Area Schools, 405 Mich. 716, 275 N.W.2d 268 (1979),] and Williamson [v. Dep't of Mental Health, 176 Mich.App. 752, 440 N.W.2d 97 (1989) ], in which defects in the buildings were allegedly contributing causes of the injuries, the consolidated cases of Reardon and Schafer involved nothing more than mere negligence. It is in this context that the Court in Schafer declared that "proper supervision would have offset any shortcomings in the configuration of the room." [455 Mich. 83, 93, 565 N.W.2d 358 (1997).]

In other words, where the essence of a plaintiff's claim is negligent supervision, the plaintiff cannot properly allege a building defect merely because a superior building design would have facilitated better supervision. But where the essence of a claim is a defect in the building itself, "summary disposition may not be granted simply by claiming that proper supervision would have averted the injury." Id. at 95-96, 565 N.W.2d 358. We must decide whether plaintiffs have properly alleged that this pool, when used for its proper purpose, was defective, or whether plaintiffs' claims amount to nothing more than negligent supervision.

III. ANALYSIS

The first step in our analysis is to determine the intended use or purpose of the pool. Defendant argues that, at the time of the injury, the assigned use of the pool was for swimming, not diving. As the Court explained in Bush, when a mathematics classroom was used as a physical science room, it "had to meet the standards of a physical science room although it had once been a mathematics room." 405 Mich. at 732, 275 N.W.2d 268. Defendant argues that the same principle should apply with equal force to this case. Since the specific purpose of this class was limited to swimming, plaintiffs must allege a danger or defect in the pool relating to swimming, not to diving. Under the defendant's theory, any claim based on an injury sustained while diving into the pool would be based on a misuse of the public facility, and the government should not owe a duty of care for such misuse.

We disagree with the defendant's characterization of diving into the pool as misuse of the pool. It is clear that diving was a contemplated use of this pool. First, the pool was equipped with diving facilities at one end, which contained springboards for the specific purpose of diving into the pool. Second, the shallower end of the pool was equipped with starting blocks, which provide an elevated platform for competitive swimmers to dive off at the start of a...