Tallman v. Markstrom
| Decision Date | 26 October 1989 |
| Docket Number | Docket No. 107613 |
| Citation | 446 N.W.2d 618,180 Mich.App. 141 |
| Parties | Virginia TALLMAN, Next Friend for Nicholas A. Tallman, a minor, Plaintiff-Appellant, v. James MARKSTROM, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Sumpter & Perry, P.C. by Thomas E. McDonald, Cheboygan, for plaintiff-appellant.
Bensinger, Combs & Cotant, P.C. by Michael D. Combs and James F. Pagels, Gaylord, for defendant-appellee.
Before SHEPHERD, P.J., and HOLBROOK and McDONALD, JJ.
Plaintiff appeals as of right from a February 29, 1988, order granting summary disposition in favor of defendant pursuant to MCR 2.116(C)(7). We reverse.
Nicholas Tallman suffered injury to his right hand while operating a table saw during defendant's woodworking class at Cheboygan High School. Plaintiff, next friend for Tallman, thereafter filed the instant action claiming defendant was negligent in permitting Tallman's use of a table saw unequipped with guards or safety devices. Defendant moved for summary disposition claiming governmental immunity as a bar to plaintiff's suit. The trial court granted defendant's motion, ruling plaintiff failed to plead gross negligence in avoidance of governmental immunity, but allowed plaintiff the opportunity to file an amended complaint. Following receipt of plaintiff's second amended complaint, defendant again moved for summary disposition. The trial court dismissed plaintiff's suit for failure to state a cause of action for gross negligence and denied plaintiff's March 4, 1988, motion for reconsideration or new trial.
On appeal plaintiff contends the trial court erred in granting defendant's motion for summary disposition, claiming the question whether defendant's conduct constitutes "gross negligence" within the meaning of the statute, M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107), is a factual question to be determined by a jury. We agree.
The pertinent subsection of the governmental immunity statute provides:
Except as otherwise provided in this section, and without regard to the discretionary or ministerial nature of the conduct in question, each officer and employee of a governmental agency, each volunteer acting on behalf of a governmental agency, and each member of a board, council, commission, or statutorily created task force of a governmental agency shall be immune from tort liability for injuries to persons or damages to property caused by the officer, employee, or member while in the course of employment or service or volunteer while acting on behalf of a governmental agency if all of the following are met:
(a) The officer, employee, member, or volunteer is acting or reasonably believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a governmental function.
(c) The officer's, employee's, member's, or volunteer's conduct does not amount to gross negligence that is the proximate cause of the injury or damage. As used in this subdivision, "gross negligence" means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.
Plaintiff's second amended complaint pled in part:
12. That defendant breached the aforesaid duties and was...
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Moldowan v. City of Warren
...as to demonstrate a substantial lack of concern for whether an injury results." M.C.L. § 691.1407(7)(a); see also Tallman v. Markstrom, 180 Mich.App. 141, 446 N.W.2d 618 (1989). Moldowan argues that Dr. Warnick's conduct rises to the level of gross negligence and that Dr. Warnick intentiona......
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Moldowan v. City of Warren
...as to demonstrate a substantial lack of concern for whether an injury results." M.C.L. § 691.1407(7)(a); see also Tallman v. Markstrom, 180 Mich.App. 141, 446 N.W.2d 618 (1989). Whether Dr. Warnick's alleged conduct was sufficiently reckless, however, is a question of fact that is beyond th......
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Moldowan v. City of Warren
...as to demonstrate a substantial lack of concern for whether an injury results." M.C.L. § 691.1407(7)(a); see also Tollman v. Markstrom, 180 Mich.App. 141, 446 N.W.2d 618 (1989). Moldowan argues that Dr. Warnick's conduct rises to the level of gross negligence and that Dr. Warnick intentiona......
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Ahlers v. Schebil
...gross negligence for the purposes of governmental immunity is a question of fact for the jury. See, e.g., Tallman v. Markstrom, 180 Mich. App. 141, 143, 446 N.W.2d 618, 619 (1989). Thus, the Court finds that there are genuine issues of material fact on this point and it cannot grant Defenda......