Taylor v. City of Detroit

• Decision Date: 10 April 1990
• Docket Number: Docket No. 111259
• Citation: 182 Mich.App. 583,452 N.W.2d 826
• Parties: Elgin TAYLOR, as Personal Representative of the Estate of Ethan Duran Taylor, Deceased, Plaintiff-Appellant, v. CITY OF DETROIT, a Michigan Municipal Corporation, Defendant-Appellee. 182 Mich.App. 583, 452 N.W.2d 826
• Court: Court of Appeal of Michigan — District of US

Page 826

452 N.W.2d 826

Elgin TAYLOR, as Personal Representative of the Estate of Ethan Duran Taylor, Deceased, Plaintiff-Appellant, v. CITY OF DETROIT, a Michigan Municipal Corporation,

Defendant-Appellee.

Docket No. 111259.

182 Mich.App. 583, 452 N.W.2d 826

Court of Appeals of Michigan.

Submitted Aug. 6, 1989.

Decided Nov. 14, 1989.

Released for Publication April 10, 1990.

[182 MICHAPP 585] Sommers, Schwartz, Silver & Schwartz, P.C. by Richard D. Cox, Southfield, for plaintiff-appellant.

Sullivan, Ward, Bone, Tyler, Fiott & Asher, P.C. by Ronald S. Lederman and Frank Wilkerson, Southfield, for defendant-appellee.

Before MacKENZIE, P.J., and MARILYN J. KELLY and BURNS, ^* JJ.

PER CURIAM.

This is a wrongful death action. Plaintiff appeals as of right from an order denying his motion to amend the complaint and an order granting summary disposition in favor of defendant on the basis of governmental immunity. We affirm.

The facts are not in dispute. Plaintiff's decedent, a ten-year-old boy, was electrocuted when he and several other youths entered an electrical substation located in an abandoned section of a housing project owned by defendant city. Plaintiff and decedent, his son, were residents of the housing project. The substation was a brick structure with a single access door which locked from the outside. Its windows were completely bricked in to the top two feet, where the openings were bricked in latticework fashion. The latticework had apparently been broken out of at least one window. A metal drum was found under this window.

The substation contained cabinets housing electrical switching equipment of the Detroit Department of Public Lighting. Each cabinet had a self-locking door designed to prevent unauthorized entry. On August 7, 1985, plaintiff's decedent entered[182 MICHAPP 586] the substation, apparently by standing on the metal drum and climbing through the broken latticework at the top of the window. One of the cabinet doors had apparently been left ajar. Decedent opened the door, pulled a wire, and was electrocuted.

In his complaint, plaintiff alleged that defendant city was liable for decedent's death by allowing the substation to be accessible to the public. By first-amended complaint, plaintiff made additional allegations as to the public lighting agency. Plaintiff's subsequent motion to again amend his complaint to add a breach of contract claim was denied. On September 8, 1988, the trial court granted defendant's motion for summary disposition on the basis of governmental immunity.

On appeal, plaintiff first contends that the trial court erred in denying his motion to amend his complaint to add a breach of contract claim. Leave to amend a complaint shall be given freely when justice so requires. MCR 2.118(A)(2), Muilenberg v. The Upjohn Co., 169 Mich.App. 636, 645, 426 N.W.2d 767 (1988), lv. den. 432 Mich. 889 (1989). This Court will not reverse the trial court's decision on a motion to amend absent an abuse of discretion that results in injustice. Muilenberg, supra, p. 645, 426 N.W.2d 767.

In this case, the proposed breach of contract claim was based on plaintiff's lease with defendant city which provided that defendant would keep the premises in good repair. Plaintiff was aware of this lease at the beginning of the suit. The motion to amend came less than a month before a scheduled final settlement conference and nearly twenty-nine months after the initial complaint was filed. Plaintiff had already amended his complaint once and the case had been mediated. Under these circumstances, we find no abuse of discretion in the trial court's decision to deny plaintiff's motion. Compare [182 MICHAPP 587] Vitale v. Lentine, 137 Mich.App. 249, 358 N.W.2d 2 (1984). Furthermore, contrary to plaintiff's argument, there was no dramatic change in applicable case law which would mandate that he be allowed a second amendment. Hadfield v. Oakland Co. Drain Comm'r, 430 Mich. 139, 422 N.W.2d 205 (1988), did not produce a majority opinion and Reardon v. Dep't of Mental Health, 430 Mich. 398, 424 N.W.2d 248 (1988), simply resolved a conflict in this Court on the question whether assaults by third parties in a public building fall within the public buildings exception to governmental immunity.

Plaintiff next asserts that the trial court erred in concluding that the public lighting agency was immune from liability because it was engaged in a governmental function. Plaintiff argues that operation of the public lighting agency is conducted primarily for the purpose of producing a profit and thus constitutes a proprietary function, not immune from liability. We disagree.

To be a proprietary function, an activity must (1) be conducted primarily for the purpose of producing a pecuniary profit, and (2) not normally be supported by taxes or fees. Hyde v. Univ. of Michigan Bd. of Regents, 426 Mich. 223, 393 N.W.2d 847 (1986). Whether an activity actually produces a profit is not dispositive. Hyde, supra. An agency may conduct an activity on a self-sustaining basis without being subject to the proprietary function exception. Hyde, supra. If profit is deposited in a general fund or used on unrelated events, the use indicates a pecuniary motive, but use to defray expenses of the activity indicates a nonpecuniary purpose. Hyde, supra.

In this case, there is nothing in the record indicating that defendant's primary purpose was to make a pecuniary profit. The public lighting [182 MICHAPP 588] agency provides electricity only to city-related recipients, such as public housing projects, schools, and the public park of Belle Isle. The city housing commission paid for the electricity supplied by the substation at issue here. Reimbursement for the cost of electricity provided is in the nature of cost defrayment, not profit-making. In short, unlike the cases cited by plaintiff, defendant in this case was not involved in a commercial business serving the general population and was not engaged in a pecuniary activity.

Plaintiff next claims that the trial court erred in determining that the public buildings exception to governmental immunity did not apply in this case. We disagree. The public buildings exception, M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106), applies to public buildings "when open for use by members of the public." Here, only authorized personnel were allowed entry into the substation; the structure was neither designed nor intended to be accessible to or used by the general public. We find no error in the court's ruling.

Plaintiff also contends that the trial court erred in ruling that his claims of nuisance per se, intentional nuisance, and attractive nuisance were barred by the governmental tort liability act, M.C.L. Sec. 691.1401 et seq.; M.S.A. Sec. 3.996(101) et seq. Again, we disagree. There is a split in this Court on the question whether, after Hadfield, supra, an intentional nuisance exception to governmental immunity still exists. Compare, e.g., Li v. Wong (On Remand), 170 Mich.App. 256, 428 N.W.2d 36 (1988), remanded for reconsideration 430 Mich. 882, 423 N.W.2d 910 (1989), with Scott v. Dep't of Natural Resources, 169 Mich.App. 205, 425 N.W.2d 518 (1988). In Giddings v. Detroit, 178 Mich.App. 749, 444...