Singerman v. Municipal Service Bureau, Inc.
| Decision Date | 29 June 1995 |
| Docket Number | Docket Nos. 159844,159845 |
| Citation | 536 N.W.2d 547,211 Mich.App. 678 |
| Parties | Gary SINGERMAN, Plaintiff-Appellant, v. MUNICIPAL SERVICE BUREAU, INC., Defendant-Appellee. Gary SINGERMAN, Plaintiff-Appellant, v. Tamara Lynn McKINSTRY and Cindy Blayle, Defendants-Appellees, and Westland Sports Arena, Defendant. |
| Court | Court of Appeal of Michigan — District of US |
William Dobreff, Warren, for plaintiff.
Cummings, McClorey, Davis & Acho, P.C. by Gail P. Massad, Livonia, for defendants.
Before MARILYN J. KELLY, P.J., and GILLIS * and SCHWARTZ, ** JJ.
In these consolidated appeals, plaintiff, Gary Singerman, appeals as of right from two separate orders of the trial court granting summary disposition for defendant Municipal Service Bureau, Inc., and for defendants Tamara Lynn McKinstry and Cindy Blayle. We reverse both orders of summary disposition, and remand for further proceedings.
Plaintiff was injured when he was struck in the eye by a deflected hockey puck as he was tending goal at the Westland Sports Arena. Plaintiff went to the arena as a coach to observe players from the Eastern Michigan University Hockey Club. Plaintiff was filling in for an absent goalie and was not wearing proper safety equipment at the time he was injured. There was evidence that the area at the end of the ice rink was slightly dark because of defective lighting. 1 Plaintiff claimed that the dim lighting made it difficult to see the puck. Defendant Municipal Service Bureau, Inc., an agency of the City of Westland, 2 was responsible for maintaining the arena. Defendant McKinstry, an employee of the Municipal Service Bureau, was the manager of the arena. Defendant Blayle, also an employee of the Municipal Service Bureau, was assistant manager of the arena.
Defendants moved for summary disposition, and the trial court entered orders granting the motions on December 2, 1992. The court ruled that plaintiff's claims were barred by the open and obvious danger doctrine pursuant to Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 485 N.W.2d 676 (1992). Plaintiff now appeals as of right from the trial court's dismissal of his claims.
The first issue that we must address concerns whether the trial court properly applied the open and obvious danger doctrine set forth in Riddle, supra, to the facts of this case. We find that the trial court overlooked the possibility that defendants could be held liable for foreseeable harm despite the open and obvious nature of the danger.
The Supreme Court in Riddle discussed two potential theories of liability: failure to warn where a danger is not open and obvious, and failure to exercise due care where injury is foreseeable despite the open and obvious nature of the danger. Id. at 96-97, 485 N.W.2d 676. In the present case, the trial court found that defendants had no duty to warn because of the open and obvious nature of the danger. The court then concluded that defendants had no duty to plaintiff whatsoever. We find that the trial court erred in this conclusion because it overlooked the duty of care where injury is foreseeable despite the open and obvious nature of the danger. Id.
Having determined that the trial court erred in its conclusion that defendants owed no duty to plaintiff, we must examine next the duty of care. In the context of a hockey game, the duty of care to maintain adequate lighting in an arena may take on new meaning. Whereas a condition of dim lighting in an arena may not be particularly dangerous by itself, the danger becomes more pronounced when the arena is used as a hockey rink. In this situation, the duty of reasonable care may include warning players about the dangers of failing to wear proper equipment and enforcing the arena's own safety rules. To the extent that the allegedly inadequate lighting may have contributed to the danger, the duty of care may include taking all reasonable steps to rectify the dangerous conditions.
Importantly, the open and obvious danger doctrine of Riddle, supra, concerns defects or dangers in the premises itself, not changing conditions or hazards (such as a hockey game) that are brought about in part by the activity of the invitee(s). Defendants cannot avail themselves of the open and obvious danger doctrine as a defense under these circumstances where the harm may have been foreseeable, and some of the hazardous conditions were not inherent to the premises itself. As such, we conclude that the trial court erred in applying Riddle to dismiss plaintiff's claims.
Here, we address the question whether there was a genuine issue of material fact concerning the foreseeability of the harm. We find that there was.
In this case there was evidence that defendants should have foreseen the harm to plaintiff despite the fact that the condition of the lighting constituted an open and obvious danger. There was deposition testimony indicating that defendants were aware that hockey is a potentially dangerous sport, especially with inexperienced players, such as the ones playing with plaintiff. In fact, one of the safety rules of the rink was that helmets must be worn by all hockey players. Although defendants Blayle and McKinstry may not have seen plaintiff on the ice without a helmet until it was too late, they should anticipate that patrons will not follow the safety rules and that the patrons are in danger if the lighting is not adequately maintained. We find that the trial court erred in granting summary disposition for defendants because there were disputed issues of material fact concerning the foreseeability of the injury. MCR 2.116(C)(10).
Next, we must address the issue whether the Municipal Service Bureau is protected by governmental immunity, M.C.L. § 691.1407; M.S.A. § 3.996(107). While we find the bureau to be a governmental entity, we find that it is not entitled to immunity in this case under the public building exception. M.C.L. § 691.1406; M.S.A. § 3.996(106).
M.C.L. § 691.1407(1); M.S.A. § 3.996(107)(1) grants "all governmental agencies" immunity from tort liability where the "agency is engaged in the exercise or discharge of a governmental function." M.C.L. § 691.1401(d); M.S.A. § 3.996(101)(d) defines "governmental agencies" as including "political subdivisions." M.C.L. § 691.1401(b); M.S.A. § 3.996(101)(b) defines "political subdivision" any municipal corporation, county, county road commission, township, charter township, school district, community college district, port district, or metropolitan district, transportation authority, or any combination thereof, when acting jointly, and any district or authority authorized by law or formed by 1 or more political subdivisions, and any agency, department, court, board, or council of a political subdivision. [Emphasis added.]
On the basis of the foregoing definitions we conclude that the Municipal Service Bureau is a political subdivision that may avail itself of governmental immunity. The record indicates that the Municipal Service Bureau was created by the City of Westland to maintain various public recreational facilities. 3 The operation of public recreational facilities is regarded as a governmental function. Richardson v. Jackson Co., 432 Mich. 377, 381-382, 443 N.W.2d 105 (1989); Adam v. Sylvan Glynn Golf Course, 197 Mich.App. 95, 97, 494 N.W.2d 791 (1992). Accordingly, the Municipal Service Bureau generally would be protected by governmental immunity. Cf. Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 620, 363 N.W.2d 641 (1984).
However, in this case, because of the defective lighting, we find that the bureau may be liable under the public building exception to governmental immunity. M.C.L. § 691.1406; M.S.A. § 3.996(106). Here, there was evidence of a problem with the lighting over a portion of the rink. Further, there was evidence that defendants were aware of the problem with the lighting for some time. As a series of permanent fixtures, the lighting should be considered an integral part of the public building. Carmack v. Macomb Cty. Community College, 199 Mich.App. 544, 547, 502 N.W.2d 746 (1993). The question whether the building is dangerous must be determined in light of the use or purpose that the building serves. Griffin v. Detroit, 178 Mich.App. 302, 306, 443 N.W.2d 406 (1989). In this case, considering the use of the building as an ice arena, defendants' failure to maintain the lighting raises a genuine issue concerning the safety of the building. Accordingly, we conclude that plaintiff's claims should not have been dismissed.
Plaintiff argues that defendant Municipal Service Bureau may be liable under a vicarious liability theory. However, this issue has been abandoned because plaintiff failed to argue the issue in his brief. Froling v. Carpenter, 203 Mich.App. 368, 373, 512 N.W.2d 6 (1993). In any event, this issue is moot because of our conclusion regarding the previous issue that plaintiff has a direct claim against the bureau under the public building exception to governmental immunity. See Ross, supra at 621, 363 N.W.2d 641.
Next, plaintiff argues that the individual defendants, McKinstry and Blayle, have waived the defense of governmental immunity. We agree with plaintiff that the individual defendants have waived the defense by failing to plead governmental immunity as an affirmative defense in their responsive pleadings. Wade v. Dep't of Corrections, 439 Mich. 158, 163, 483 N.W.2d 26 (1992).
In a separate argument, plaintiff asserts that the individual defendants are not public officials who would be protected by the public duty doctrine. The public duty doctrine was summarized by this Court in Jones v. Wilcox, 190 Mich.App. 564, 568, 476 N.W.2d 473 (1991), as follows:
Absent a special relationship between the parties, a public official owes a duty to the general public and...
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