Velmer v. Baraga Area Schools, Docket No. 87901

• Decision Date: 16 April 1987
• Docket Number: Docket No. 87901
• Parties: , 38 Ed. Law Rep. 1254 Michael VELMER Plaintiff-Appellant, v. BARAGA AREA SCHOOLS, a municipal corporation, Defendant-Appellee, and General Motors Corporation, a Delaware corporation, Cincinnati Incorporated, an Ohio corporation, and Cincinnati Milacron Marketing Company, a/k/a Cincinnati Milacron Company and a/k/a Cincinnati Milling Machine Company, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 171

403 N.W.2d 171

157 Mich.App. 489, 38 Ed. Law Rep. 1254

Michael VELMER Plaintiff-Appellant, v. BARAGA AREA SCHOOLS, a municipal corporation, Defendant-Appellee, and General Motors Corporation, a Delaware corporation,

Cincinnati Incorporated, an Ohio corporation, and Cincinnati

Milacron Marketing Company, a/k/a Cincinnati Milacron

Company and a/k/a Cincinnati Milling Machine Company, Defendants.

Docket No. 87901.

Court of Appeals of Michigan.

Submitted Oct. 1, 1986.

Decided Feb. 2, 1987.

Released for Publication April 16, 1987.

Wisti & Jaaskelainen, P.C. by Douglas S. Edwards and Roger W. Zappa, Hancock, for plaintiff-appellant.

Kendricks, Bordeau, Adamini, Keefe, Smith & Girard, P.C. by Ronald D. Keefe, Marquette, for defendant-appellee.

Before ALLEN, P.J., and CYNAR and LIVO, ^* JJ.

ALLEN, Presiding Judge.

Plaintiff appeals as of right ¹ from orders of the Baraga Circuit Court dated August 1, 1985, and September 13, 1985, granting summary disposition against plaintiff as to his claims against Baraga Area Schools on the basis of governmental immunity.

Plaintiff's complaint, filed August 20, 1984, and amended January 3, 1985, alleged that on October 6, 1982, when he was sixteen years of age, plaintiff was learning how to use a milling machine during high school shop class at defendant Baraga Area Schools, that, after receiving instruction, plaintiff began machining a piece of steel needed for a shop project, and that as he did so his gloved hand became caught in the unguarded rotary cutting mechanism on the machine causing his right index finger to be severed and his right thumb to be nearly severed.

In count I plaintiff alleged that the injury was caused because the machine did not have a "point of operation" (cutting head) guard in violation of "ANSI, OSHA, MIOSHA and the National Safety Council." The complaint further alleged that defendant was negligent in failing to warn the students about the dangers of operating the machine, in failing to properly supervise plaintiff, in failing to ascertain whether the machine was safe, and in allowing the unreasonably dangerous machine to operate without the point-of-operation guard.

In count I plaintiff further averred that his claim against Baraga Area Schools was not barred by governmental immunity, due to the "existence of the problems" with regard to lack of a guard at the cutting edge of the machine and the machine's location in the classroom, and that the defective building exception to governmental immunity was applicable. Further, it was averred that governmental immunity was also not a bar because, by allowing the machine to be operated without the point-of-operation guard, defendant's conduct constituted an "intentionally maintained nuisance."

Count I further alleged that the milling machine had been sold or distributed by Cincinnati, Incorporated and subsequently had been provided to Baraga Area Schools without a point guard by General Motors Corporation. Count I alleged that Cincinnati, Incorporated was liable to plaintiff under products liability law for breach of implied warranty, express warranty and negligence and that General Motors Corporation was liable on grounds of negligence. Count II of the complaint simply alleged that Cincinnati Milacron Marketing Company, manufacturer of the machine circa 1953, was the predecessor in interest of defendant Cincinnati, Incorporated and was liable to plaintiff for the reasons stated in count I. ²

On June 17, 1985, Baraga Area Schools filed a motion for summary disposition pursuant to MCR 2.116(C)(8), formerly GCR 1963, 117.2, arguing that, as to all claims against it, plaintiff had failed to state a claim upon which relief could be granted, since plaintiff failed to plead in avoidance of governmental immunity. On August 1, 1985, following a hearing conducted on July 5, 1985, the circuit court ordered that plaintiff's "defective public building" claim was barred by governmental immunity; the court believed that the exception to governmental immunity was not applicable since the milling machine was not permanently attached to the building. However, defendant's motion as to plaintiff's claim of "intentional nuisance" was denied.

On August 26, 1985, Baraga Area Schools moved for summary disposition pursuant to MCR 2.116(C)(8) and (10), formerly GCR 1963, 117.2(1) and (3), this time on grounds that plaintiff had failed to state a claim of "intentional nuisance" and that there was no genuine issue as to any material fact and defendant was entitled to judgment as a matter of law. Following a hearing on the motion held September 4, 1985, the trial court stated from the bench:

"THE COURT : Under the first portion of the motion which is Michigan Court Rule 2.116(C)(8), that the complaint fails to state a claim upon which relief may be granted, the Court is going to rule that the complaint does state a claim upon which relief may be granted. A motion of this type is tested solely by the pleadings and all well pleaded allegations in the complaint are accepted as true, together with all conclusions and inferences that can be reasonable drawn therefrom.

"With reference to the second portion of the motion, pursuant to Michigan Court Rule 2.116(C)(10), as to the genuine issue of fact, the Court finds as follows: That based upon the affidavits, together with the pleadings, depositions, the admissions and the documentary evidence, the Court finds that there are no genuine issues of fact for determination, and accordingly the motion for summary judgment will be granted on that ground."

On September 13, 1985, an order for summary judgment dismissing plaintiff's complaint against Baraga Area Schools was entered. From the two orders so entered plaintiff appeals as of right.

I Defective Building Exception

At the hearing held July 5, 1985, on defendant's motion for summary disposition, counsel for defendant argued that the public building exception appearing in M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106) was not applicable since plaintiff had not alleged a dangerous or defective condition of the building itself and, because it was not permanently attached to the building but could be moved out, the milling machine could not be considered part of the building. In response, counsel for plaintiff argued that, due to its some two-thousand-pound weight, the machine was not easily movable and should be considered part of the building. Thew trial court, apparently agreeing with defendant's attorney, held that the defective building exception was not applicable.

A motion for summary disposition for failing to state a claim, MCR 2.116(C)(8), is tested by the pleadings alone, i.e., only the legal basis of the complaint is examined. The factual allegations of the complaint are taken as true, along with any inferences or conclusions which could fairly be drawn from the facts alleged, and unless the claim is so unenforceable as a matter of law that no factual development could possibly justify a right to recovery, the motion should be denied. Armstrong v. Ross Twp., 82 Mich.App. 77, 82, 266 N.W.2d 674 (1978); Martin v. Michigan, 129 Mich.App. 100, 104-105, 341 N.W.2d 239 (1983), lv. den. 422 Mich. 891, 368 N.W.2d 226 (1985).

Unless this panel is disposed to stretch this Court's holding in Green v. Dep't of Corrections, 30 Mich.App. 648, 186 N.W.2d 792 (1971), aff'd 386 Mich. 459, 192 N.W.2d 491 (1971), far beyond what was stated therein, we believe the trial court did not err in granting defendant's motion. In Green, the plaintiff, while a prisoner, was assigned to work on a planing machine in the prison shop. While using the machine, the plaintiff's right middle finger was amputated. The plaintiff maintained that the planing machine was defective in that it was without the proper protective shield or safety switch. This Court, holding that the public building exception was applicable, noted that the planing machine in question was anchored securely to the floor of the prison shop. The Court stated:

"The planing machine in question was anchored securely to the floor in the prison shop. Our courts have held that permanently attached fixtures in public buildings become part of those buildings. Williams v City of Detroit (1961), 364 Mich 231 ; DeNoyer v City of Ann Arbor (1967), 9 Mich App 26 . Accepting the factual findings of the trial court as true, we conclude, as did the lower court, that the safety defects in the planing machine amounted to defects in a public building." 30 Mich.App. 655, 186 N.W.2d 792. (Footnote omitted.)

Deposition testimony and affidavits in the instant case disclosed that the milling machine was not bolted to the floor or otherwise permanently affixed to the building. Under MCR 2.116(C)(10), formerly GCR 117.2(3), the court may consider the affidavits, pleadings, depositions, and documentary evidence submitted. A motion under that ground tests the factual support for a plaintiff's claim. If there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law, the motion should be granted. Linebaugh v. Berdish, 144 Mich.App. 750, 753-754, 376 N.W.2d 400 (1985). Based on the deposition and other evidence submitted that the machine was not "permanently attached" to the building, the trial court, pursuant to Green, held that defendant was entitled to judgment as a matter of law since the machine was not permanently attached to the building.

Plaintiff argues that the trial court construed Green too narrowly since the machine in the instant case was so heavy that it in effect became a "fixture," and under Michigan law all fixtures are considered part of the realty. Sequist v. Fabiano, 274 Mich. 643, 645-646, 265 N.W. 488 (1936). We disagree on two grounds. First the fixtures in question in Fabiano were a heating plant, attached electric light fixtures on a store building, and an awning on the front of the building, all put in by the defendant when...