Summers v. City of Detroit

• Decision Date: 21 June 1994
• Docket Number: Docket No. 145399
• Citation: 520 N.W.2d 356,206 Mich.App. 46
• Parties: Elon SUMMERS, Individually and as Personal Representative of the Estate of Brian Adele Summers, Deceased, Plaintiff-Appellant, v. CITY OF DETROIT, a Municipal Corporation, Daniel Krichbaum, Creighton Lederer, James McCall, Dianne Moore, David C. Borkowski, James E. Sims, Andre L. Dean, Oscar Smith, Julia Stapleton, and Anthony Roy, in their Individual and Official Capacities, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 356

520 N.W.2d 356

206 Mich.App. 46

Elon SUMMERS, Individually and as Personal Representative of the Estate of Brian Adele Summers, Deceased Plaintiff-Appellant, v. CITY OF DETROIT, a Municipal Corporation, Daniel Krichbaum Creighton Lederer, James McCall, Dianne Moore, David C Borkowski, James E. Sims, Andre L. Dean, Oscar Smith, Julia Stapleton, and Anthony Roy, in their Individual and Official Capacities, Defendants-Appellees.

Docket No. 145399 Court of Appeals of Michigan.

Submitted Jan. 18, 1994, at Detroit.

Decided June 21, 1994, at 9:15 a.m.

Released for Publication Sept. 8, 1994.

Mark Granzotto and Julie H. Hurwitz, Detroit, for plaintiff.

Donald Pailen, Corp. Counsel, and Joanne D. Stafford, Supervising Asst. Corp. Counsel, Detroit, for defendants.

Before CAVANAGH, P.J., and MARILYN J. KELLY and J. RICHARD ERNST, ^* JJ.

PER CURIAM.

Plaintiff, Elon Summers, appeals as of right from a circuit court order granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(7) (claim barred by governmental immunity) with respect to defendant City of Detroit, and pursuant to MCR 2.116(C)(8) (failure to state a claim) with respect to the individual defendants. We affirm.

Plaintiff's decedent, nine-year-old Brian Summers, drowned in an outdoor swimming pool owned by defendant City of Detroit, after gaining access to the pool through a gap in a chained gate at a time when the pool was closed. Plaintiff brought suit against the city and several individual city officials and employees.

We first consider whether the circuit court erred in concluding that plaintiff's claims against the city were barred by governmental immunity. When reviewing a grant of summary disposition based on a finding that the claim is barred by governmental immunity, we consider all documentary evidence submitted by the parties. All well-pleaded allegations are accepted as true and construed most favorably to the nonmoving party. To survive a motion for summary disposition, the plaintiff must allege facts that justify the application of an exception to governmental immunity. Wade v. Dep't of Corrections, 439 Mich. 158, 163, 483 N.W.2d 26 (1992); Maurer v. Oakland Co. Parks & Recreation Dep't (On Remand), 201 Mich.App. 223, 228, 506 N.W.2d 261 (1993).

The parties do not dispute that defendant city was engaged in the exercise of a governmental function and, hence, was immune from tort liability unless there is an applicable exception to immunity. M.C.L. § 691.1407(1); M.S.A. § 3.996(107)(1).

The public building exception to governmental immunity, M.C.L. § 691.1406; M.S.A. § 3.996(106), does not apply on these facts, because the pool and surrounding fence do not constitute a public building. Reardon v. Dep't of Mental Health, 430 Mich. 398, 406-413, 424 N.W.2d 248 (1988); Richardson v. Warren Consolidated School Dist., 197 Mich.App. 697, 700-701, 496 N.W.2d 380 (1992); Dew v. Livonia, 180 Mich.App. 676, 679, 447 N.W.2d 764 (1989).

Public nuisance is not an exception to governmental immunity. Li v. Feldt (After Second Remand), 439 Mich. 457, 474, 487 N.W.2d 127 (1992) (Li II ).

There is no nuisance per se in this case, because the fence, gate, and pool do not constitute a nuisance at all times and under all circumstances, regardless of location or surroundings. Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 152-153, 422 N.W.2d 205 (1988).

Our Supreme Court has not ruled definitively whether the doctrine of attractive nuisance constitutes an exception to governmental immunity. See Taylor v. Detroit, 182 Mich.App. 583, 589, 452 N.W.2d 826 (1989). We believe that no such exception exists.

Section 7(1) of the governmental tort liability act, M.C.L. § 691.1401 et seq.; M.S.A. § 3.996(101) et seq., preserved judicially created exceptions to immunity that were formulated before July 1, 1965. Li v. Feldt (After Remand), 434 Mich. 584, 591-592, 456 N.W.2d 55 (1990) (Li I ); Hadfield, supra 430 Mich. at 147-148, 422 N.W.2d 205. The question is whether the claimed exception was recognized clearly in authoritative Michigan case law before that date. Li II, supra 439 Mich. at 468, 487 N.W.2d 127 (emphasis added). Our research has disclosed no pre-1965 cases that discussed whether there is an attractive nuisance exception to immunity. It appears likely that the Court in Lyshak v. Detroit, 351 Mich. 230, 88 N.W.2d 596 (1958), applied the proprietary function exception to immunity, and in Swanson v. Marquette, 357 Mich. 424, 432, 98 N.W.2d 574 (1959), the proprietary function exception was clearly pleaded. See Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 610-614, 363 N.W.2d 641 (1984); 18 McQuillin, Municipal Corporations (rev 3d ed), § 53.59.60, pp 419-420 (municipal liability for attractive nuisance depends upon whether a governmental or a proprietary function was involved). Thus, neither Lyshak nor Swanson clearly recognizes an attractive nuisance exception as required by Li II.

We are aware that in Rosario v. Lansing, 403 Mich. 124, 139-141, 268 N.W.2d 230 (1978) (Fitzgerald, J), a plurality of the Court held that, although attractive nuisance law is essentially negligence law, attractive nuisance is an exception to governmental immunity. However, a plurality decision in which no majority of the justices participating agree concerning the reasoning is not binding authority under the doctrine of stare decisis. Swickard v. Wayne Co. Medical Examiner, 438 Mich. 536, 570, n. 15, 475 N.W.2d 304 (1991) (Levin, J). We find the dissenting opinion of Justice Ryan in Rosario to be more persuasive, because it more closely resembles the reasoning in Hadfield and the two Li opinions (and it was indeed cited with favor in Hadfield.) Justice Ryan would have held that the "nuisance exception" is limited to two subclasses of nuisance, "nuisances per se" and "intruding nuisances." 403 Mich. at 146, 422 N.W.2d 205 (Ryan, J, dissenting).

We conclude that an attractive nuisance exception to governmental immunity was not recognized clearly in authoritative Michigan case law before July 1, 1965, and thus did not survive the enactment of § 7(1). Li II, supra, 439 Mich. at 468, 487 N.W.2d 127. Accordingly, the trial court properly granted summary disposition in favor of defendant city.

The second issue on appeal is whether the circuit court erred in concluding that the individual defendants were entitled to judgment as a matter of law on the basis that they owed no duty to the decedent. When reviewing a grant of summary disposition pursuant to MCR 2.116(C)(8), we accept all factual allegations in support of the claim as true, as well as any reasonable inferences that can be drawn from them. Azzar v. Primebank, FSB, 198 Mich.App. 512, 516, 499 N.W.2d 793 (1993).

The threshold question in a negligence action is whether the defendant owed the plaintiff a legal duty. Scott v. Harper Recreation, Inc., 192 Mich.App. 137, 140, 480 N.W.2d 270 (1991), rev'd on other grounds 444 Mich. 441, 506 N.W.2d 857 (1993).

As a rule, there is no duty that obligates a person to aid or protect another. Plaintiff has alleged no special relationship or other special circumstance that would have created such a duty in the individual defendants with respect to the decedent. Schultz v. Consumers Power Co., 443 Mich. 445, 450, 506 N.W.2d 175 (1993); Harrison v. Corrections Dep't Director, 194 Mich.App. 446, 459, 487 N.W.2d 799 (1992); Bell & Hudson, P.C. v. Buhl Realty Co., 185 Mich.App. 714, 717-718, 462 N.W.2d 851 (1990). Any duty owed by the individual defendants was for the benefit of the general public; there has been no showing that performance of that duty would have affected the decedent differently from the general public. Harrison, supra, 194 Mich.App. at 459-460, 487 N.W.2d 799.

We reject plaintiff's attractive nuisance argument as applied to the individual defendants, because the doctrine of attractive nuisance extends only to those who both possess and control the land. See Merritt v. Nickelson, 407 Mich. 544, 552, 287 N.W.2d 178 (1980); Ellsworth v. Highland Lakes Development Associates, 198 Mich.App. 55, 63, 498 N.W.2d 5 (1993); Rand v. Knapp Shoe Stores, 178 Mich.App. 735, 740-741, 444 N.W.2d 156 (1989).

Finally, we note that plaintiff's argument relating to the alleged violation of the Detroit Building Code was not raised before the court below and, thus, is not preserved for review. Deal v. Deal, 197 Mich.App. 739, 741, 496 N.W.2d 403 (1993). In any event, although violation of an ordinance may be some evidence of negligence, it is not in itself sufficient to impose a legal duty cognizable in negligence. Ward v. Frank's Nursery & Crafts, Inc., 186 Mich.App. 120, 135, 463 N.W.2d 442 (1990).

Accordingly, the trial court properly granted summary disposition in favor of the individual defendants.

Affirmed.

MARILYN J. KELLY, Judge (concurring).

I concur in the result reached in this case. However, in contrast to my colleagues, I am not persuaded that an attractive nuisance exception to a defense of governmental immunity can never exist in this state.

First, our Supreme Court has not ruled definitively that the doctrine of attractive nuisance does not constitute an exception to governmental immunity. See Taylor v. Detroit, 182 Mich.App. 583, 589, 452 N.W.2d 826 (1989). Second, I believe the majority overstates the correct test for making such a determination when it says: "The question is whether the claimed exception was recognized clearly in authoritative Michigan case law," ante. p. 358, before July 1, 1965, citing ...