Vargo v. Svitchan

• Decision Date: 22 October 1980
• Docket Number: Docket No. 44963
• Citation: 301 N.W.2d 1,100 Mich.App. 809
• Parties: Gregory Roy VARGO, Walter Vargo, and Patricia Vargo, Plaintiffs-Appellants, v. George SVITCHAN, Ernest Mayoros, Dr. T. E. Hagadone, and Riverview Community School District, Defendants-Appellees, and Dr. Donald Lessner, Jesse Jenkins, Jack Sohn, Mark Mayoros, Gary Merker, Dr. Walter H. Schmitt, Jr., Dr. George J. Goodheart, Jr., and Dr. George Goodheart, Jr., D. C., P. C., Jointly and Severally, Defendants. 100 Mich.App. 809, 301 N.W.2d 1
• Court: Court of Appeal of Michigan — District of US

Page 1

301 N.W.2d 1

Gregory Roy VARGO, Walter Vargo, and Patricia Vargo Plaintiffs-Appellants, v. George SVITCHAN, Ernest Mayoros, Dr. T. E. Hagadone, and Riverview Community School District Defendants-Appellees and Dr. Donald Lessner, Jesse Jenkins, Jack Sohn, Mark Mayoros Gary Merker, Dr. Walter H. Schmitt, Jr., Dr. George J. Goodheart, Jr., and Dr. George Goodheart, Jr., D. C., P. C., Jointly and Severally, Defendants.

Docket No. 44963.

100 Mich.App. 809, 301 N.W.2d 1

Court of Appeals of Michigan.

Oct. 22, 1980.

Released for Publication Jan. 29, 1981.

[100 MICHAPP 811] James R. Barson, Birmingham, for plaintiffs-appellants.

Vincent C. Rabaut, Jr., Detroit, for Lessner, Jenkins, Sohn.

Jonathan E. Martin, Gary A. Maximiuk, Detroit, for Svitchan, Mayoros, Hagadone, and Riverview School.

Harry Riseman, Detroit, for Schmidtt.

Robert B. Campbell, Detroit, for Merker.

Before BEASLEY, P. J., and CAVANAGH and PORTER, ^* JJ.

[100 MICHAPP 812] CAVANAGH, Judge.

Plaintiffs brought this action against defendants as a result of injuries sustained by Gregory Vargo. On the grounds of governmental immunity, M.C.L. § 691.1407; M.S.A. § 3.996(107), the trial court granted accelerated judgment ¹ to defendants Svitchan, the athletic director, Mayoros, the high school principal, Hagadone, the school district superintendent, and the Riverview Community School District. Leave to appeal was initially denied by this Court. Plaintiffs sought leave to appeal to the Supreme Court which, in lieu of leave to appeal, remanded to this Court to hear the case as on leave granted. Vargo v. Svitchan, 406 Mich. 943 (1979).

On June 25, 1973, Gregory Roy Vargo, a 15-year-old high school student, reported for the first of a scheduled series of weight lifting training sessions in preparation for high school football team tryouts in the Fall. This session was conducted at the high school in the gymnasium. Allegedly urged on by the coach, Dr. Donald Lessner, to perform to the utmost, Gregory Vargo pushed himself to and beyond his limits, and, while lifting a 250 to 300 pound weight, he fell and received injuries resulting in paraplegia. It is alleged Gregory Vargo's two "spotters", Mark Mayoros and Gary Merker, failed to react quickly enough to seize the barbell before the fall.

Plaintiffs' complaint, twice amended, alleges that appellee Svitchan, the Athletic Director, appellee Ernest Mayoros, the Principal, and appellee Hagadone, the School Superintendent, negligently supervised Coach Lessner and allowed Lessner to abuse students and to threaten and pressure them [100 MICHAPP 813] into attempting athletic feats beyond their capabilities, resulting in Gregory Vargo's injury. The complaint further alleges that the gymnasium facilities were inadequate and defective because lack of sufficient ventilation caused Gregory Vargo to perspire excessively, contributing to his injuries.

M.C.L. § 691.1407; M.S.A. § 3.996(107), reads:

"Except as in this act otherwise provided, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function."

The question as to whether the protection afforded a governmental unit by the above statute extends to its individual agents or employees is presently unsettled in Michigan. The state of the law in this regard has been accurately assessed by Judge Brennan in his opinion in Cook v. Bennett, 94 Mich.App. 93, 98-100, 288 N.W.2d 609 (1979):

"We next address the propriety of the summary judgment in favor of the school principal, Vera Bennett. The summary judgment was based upon the lower court's determination that the school principal was protected by governmental immunity.

"As to this particular issue the Michigan Supreme Court has not rendered any practical guidance to the bench and bar. In Lovitt v. Concord School District, (58 Mich.App. 593, 598, 228 N.W.2d 479 (1975)), Judge Danhof, writing for a panel of this Court, held that the governmental immunity which protects a school district is extended to the school principal. Justices Kavanagh, Fitzgerald, and Levin would hold that a school district, and thus its employees, are not protected by governmental immunity. Galli v. Kirkeby, 398 Mich. 527, 531, 248 N.W.2d 149 (1976). Justices Williams and Ryan in Galli, supra, 531, 248 N.W.2d 149, would overrule Judge Danhof's holding in Lovitt while Chief Justice Coleman would hold that the principal's function of supervising the [100 MICHAPP 814] school personnel (the claimed breach in the present case) is protected by governmental immunity. Galli, supra, 542, 248 N.W.2d 149.

"The recent Supreme Court case of Bush v. Oscoda Area Schools, 405 Mich. 716, 275 N.W.2d 268 (1979), does not allay the confusion in the area. There the question of the applicability of governmental immunity to a school principal was summarily addressed. Bush, supra, 733, 275 N.W.2d 268. In that case it was alleged that the principal was apprised of the dangerous condition of the substitute lab room and failed to take appropriate action to protect the students. Justices Levin, Kavanagh and Fitzgerald found that the complaint did state a claim against the principal. Chief Justice Coleman and Justice Moody found that the principal was performing discretionary activities that are of essence to government and was thus protected by governmental immunity. Bush, supra, 734, 275 N.W.2d 268. Justice Williams in Bush, supra, 734, 275 N.W.2d 268 would hold the principal liable only for 'ultra vires acts' in accordance with McCann v. Michigan, 398 Mich. 65, 73-74, 247 N.W.2d 521 (1976).

"It goes without saying that this area of the law is unsettled. Although we perceive a trend in Michigan to severely limit governmental immunity, as yet the problem of its applicability must be contended with."

The Court in Cook, supra, 100, then proceeded to evaluate the liability of the defendant principal in terms of the following test:

"The extent to which a school principal is protected by immunity is dependent upon whether the act complained of falls within the principal's discretionary or ministerial powers. Justice Cooley, in Wall v. Trumbull, 16 Mich. 228, 234 (1867), draws the distinction as follows:

" 'A ministerial officer has a line of conduct marked out for him, and has nothing to do but to follow it; and he must be held liable for any failure to do so which results in the injury of another. A judicial officer, on the other hand, has certain powers confided to him to be exercised according to his judgment or discretion; [100 MICHAPP 815] and the law would be oppressive which should compel him in every case to decide correctly at his peril.'

"Discretionary acts are those of a legislative, executive or judicial nature. Sherbutte v. Marine City, 374 Mich. 48, 54, 130 N.W.2d 920 (1964). Ministerial acts are those where the public employee has little decision-making power during the course of performance, but rather his conduct is delineated."

Employing these distinctions, the Cook Court concluded that:

"Even though the supervisory powers of the school principal are incident to her public function, she has a duty to reasonably exercise these powers in such a way as to minimize injury to students in her charge. Where the principal negligently performs this duty, government immunity does not operate to insulate her from all liability. Accordingly, the lower court's ruling to the contrary is erroneous." Cook, supra, 94 Mich.App. 101, 288 N.W.2d 609.

In the case at bar, the plaintiffs, in their complaint, have set forth lengthy allegations concerning the purported negligence of Riverview Community High School Principal, Ernest Mayoros. The plaintiffs have averred that Principal Mayoros was negligent by "inducing, suggesting, encouraging * * * intimidating and coercing plaintiff Gregory Roy Vargo * * * to attend the weight lifting session and to attempt to lift and lower heavy weights without having inquired as to his experience or capabilities to lift such weights without properly instructing him and other members of the class as to techniques of safety that would avoid injury and without providing proper mechanical and/or human safeguards * * *." The plaintiffs have further alleged that Principal Mayoros was negligent "by failing to stop the illegally (sic) conducting of an organized summer program [100 MICHAPP 816] for varsity football players contrary to Michigan High School Athletic Association rules", and "by failing to promulgate adequate rules, regulations, procedures and safeguards, and by failing to properly instruct and train the coach, assistant coaches, and Athletic Director herein * * * ". The plaintiffs finally claim that Principal Mayoros was negligent because he failed to inspect the activities that were being conducted by Coach Lessner, because he permitted the use of an improperly-equipped room, and because he failed to take action upon receiving a complaint and notice that Coach Lessner was "too rough" on his prospective football players.

According to the analysis set forth in Cook, supra, it appears that the principal in the instant case should not be covered by the cloak of governmental immunity. As in Cook, Principal Mayoros had a duty to reasonably exercise supervisory powers so as to minimize injury to his students. The principal of the school maintains direct control over the use and condition of the facilities. Therefore, if the weight lifting room was, in fact, improperly equipped and designed for that use, the defendant principal would bear direct responsibility. Moreover, if the summer weight lifting program was, in fact, in violation of MHSAA rules and regulations, it would be the principal, Ernest Mayoros, who would be in charge of such a program. Finally, it must be noted that weight lifting is an activity which requires special training and supervision; overexertion and resultant injuries are foreseeable and...