Velmer v. Baraga Area Schools, Docket No. 80356

• Decision Date: 16 May 1988
• Docket Number: Docket No. 80356
• Citation: 430 Mich. 385,424 N.W.2d 770,47 Ed. Law Rep. 691
• Parties: 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, an Ohio corporation, a/k/a Cincinnati Milacron Company and a/k/a Cincinnati Milling Machine Company, Defendants. 430 Mich. 385, 424 N.W.2d 770, 47 Ed. Law Rep. 691
• Court: Michigan Supreme Court

Page 770

424 N.W.2d 770

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, an Ohio corporation, a/k/a Cincinnati Milacron Company and a/k/a Cincinnati Milling Machine Company, Defendants.

Docket No. 80356.

430 Mich. 385, 424 N.W.2d 770, 47 Ed. Law Rep. 691

Supreme Court of Michigan.

Argued Jan. 6, 1988.

Decided May 16, 1988.

[430 MICH 386] Roger W. Zappa, Wisti & Jaaskelainen, P.C., Hancock, for plaintiff-appellant.

Kendricks, Bordeau, Adamini, Keefe, Smith & Girard, P.C. by Dennis H. Girard, Marquette, for defendant-appellee Baraga Area Schools.

OPINION

RILEY, Chief Justice.

The issue in this case is whether the public building exception to governmental immunity applies under the facts presented. The Court of Appeals held that the exception was inapplicable and affirmed the trial court's grant of summary disposition in defendant's favor. We reverse that decision.

FACTS AND PROCEEDINGS

On October 6, 1982, plaintiff was injured while working on a milling machine during metal shop class at the Baraga Area Schools. Apparently, plaintiff's gloved hand came in contact with the machine's cutting mechanism, dismembering his right index finger and nearly severing his right thumb. Plaintiff was sixteen years old at the time of the accident and had just received instruction on how to operate the machine.

Plaintiff brought this action against several defendants in the Baraga Circuit Court. The claims against all of the defendants except the Baraga Area Schools were settled, leaving the school as the only defendant involved in this appeal.

In the relevant portion of his amended complaint, plaintiff predicated defendant's liability on the public building exception to governmental immunity. M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106). Plaintiff alleged several deficiencies with regard to the milling machine, primarily that it was not equipped with a "point of operation" guard, which protects the machine's operator from accidental contact with the cutting heads. As such, plaintiff alleged that the condition of the machine was unreasonably dangerous, rendering the public building exception applicable.

Defendant brought a motion for summary disposition pursuant to MCR 2.116(C)(8), (10), arguing that plaintiff's claim was barred by governmental immunity. M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107). Deposition testimony disclosed that the milling machine was very heavy and had not been bolted or permanently affixed to the floor. As such, defendant argued that the machine was not part of the building and, therefore, that plaintiff's allegations did not fall within the public building exception. The trial court agreed with defendant and granted summary disposition.

In a motion for reconsideration, plaintiff presented an unsigned affidavit of his expert witness who averred that the machine weighed over one thousand pounds and that it was unnecessary to bolt the machine to the floor because of its weight. Further, the affiant stated that the milling machine was connected to the building by a permanently attached electrical conduit which would require an electrician to disconnect. Following the trial court's denial of plaintiff's motion for reconsideration, plaintiff provided an executed copy of the previously unsigned affidavit. ¹

The Court of Appeals affirmed the grant of summary disposition. 157 Mich.App. 489, 403 N.W.2d 171 (1987). One judge dissented, stating that he would find the public building exception applicable. Id. at 502-503, 403 N.W.2d 171 (Cynar, J., concurring in part and dissenting in part).

We granted leave to appeal, limited to the question of the applicability of the public building exception. 428 Mich. 910, 409 N.W.2d 199 (1987).

DISCUSSION

At the time this action accrued, the governmental immunity statute provided:

"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. Except as otherwise provided herein, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed heretofore, which immunity is affirmed." M.C.L. Sec. 691.1407; M.S.A. Sec. 3.996(107).

This portion of the act was substantially modified by 1986 P.A. 175. However, these revisions are not relevant to this appeal, as the public building exception to governmental immunity was unchanged. See Roy v. Dep't of Transportation, 428 Mich. 330, 332, n. 3, 408 N.W.2d 783 (1987) (amendments to immunity statute not relevant to decision under highway exception, M.C.L. Sec. 691.1402; M.S.A. Sec. 3.996, as that portion of the statute not revised by 1986 P.A. 175).

The relevant portion of the public building exception to governmental immunity provides:

"Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition." M.C.L. Sec. 691.1406; M.S.A. Sec. 3.996(106).

Our review of this matter is necessarily limited by the narrow question presented below. ² The trial court considered deposition testimony in reaching its decision to grant defendant's motion for summary disposition. As such, we treat the motion as being granted pursuant to MCR 2.116(C)(10), under which the court may properly consider matters outside the pleadings. A motion brought pursuant to 2.116(C)(10) tests the factual basis for plaintiff's claim and may be granted only if "[e]xcept as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law." MCR 2.116(C)(10).

The trial court found the evidence that the milling machine was not bolted or permanently affixed to the floor of the building to be dispositive of the issue of the applicability of the public building exception. The Court of Appeals affirmed that decision, distinguishing the case of 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).

In Green, the plaintiff was a prisoner in the Detroit House of Corrections. During his incarceration, he was injured while working on a planing machine in the prison shop. The plaintiff claimed that the planing machine was not equipped with the correct protective shield and safety switch, causing it to sever his right middle finger.

After determining that the House of Corrections was a public building and that the plaintiff was a member of the public, the Green Court discussed the planing machine which caused the plaintiff's injuries:

"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.... Accepting the factual findings of the trial court as true, [that the planing machine lacked the proper safety devices], we conclude, as did the lower court, that the safety defects in the planing machine amounted to defects in a public building." Green, 30 Mich.App. 655, 186 N.W.2d 792.

On appeal in this Court, we affirmed. However, the focus of that opinion was not on the planing machine or its manner of affixation, but rather on whether the House of Corrections was a public building and whether the plaintiff was a member of the public. This Court did not mention or discuss the fact that the planing machine was affixed to the floor, and the only reference to the machine was in passing:

"It is enough to say that, had the defendant at bar been a private citizen, agency, or entity made responsible by law or by any like undertaking to 'safely' keep the plaintiff, there was sufficient evidence upon which a finding of actionable negligence on the part of such citizen, agency, or entity could be made and reported by a duly appointed fact finder or finders." Green, supra, 386 Mich. 462, 192 N.W.2d 491.

In the instant case, the Court of Appeals rejected plaintiff's argument that under Green the public building exception was applicable:

"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 NW 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 he purchased the store. The Court held the items so installed were intended to facilitate the use and occupation of the building, were complementary to the real property, and, therefore, became part of the freehold and part of the mortgage security. Clearly, the classroom machine in the instant case was not a structural part of the building like an awning or a furnace but, instead, was more in the nature of removable personal property such as desks and other shop equipment commonly used for classroom shop instruction." Velmer, supra, 157 Mich.App.at 497, 403 N.W.2d 171.

The Court of Appeals found this case to be more like those cases in which the public building exception was found to be inapplicable because they involved "items not permanently affixed to the building...." Id., citing Lee v. Highland...