Bush v. Oscoda Area Schools

275 N.W.2d 268, 405 Mich. 716, 1979 Mich. LEXIS 346

• Court: Michigan Supreme Court
• Decided: February 9, 1979
• Docket: 59242, (Calendar No. 4)
• Status: Published

Opinions

Levin, J.

Tracey-Ann Foxworth, then 14, was burned when a jug of wood alcohol exploded during a physical science class in a public school.

Her mother, Annie M. Bush, individually and as next friend, commenced this action against Oscoda Area Schools, its superintendent, the principal and the classroom teacher. The circuit judge granted defendants’ motion for summary judgment on the ground that the complaint failed to state a claim upon which relief could be granted.¹ The Court of Appeals affirmed as to the school district and the superintendent and reversed as to the principal and teacher.²

We conclude that the complaint states claims as to all defendants, and remand for trial.

I

Foxworth attended Oscoda High School and was enrolled in Introductory Physical Science. The class had been conducted in the chemistry laboratory, but due to increased enrollment was rescheduled to meet in a non-laboratory room. The chemistry laboratory was equipped with a safety shower, ventilation or exhaust hoods, sinks, enclosed storage areas, stationary laboratory desks and water and gas outlets. The substitute room was not so equipped.

The classroom teacher had complained to the school principal about the substitute room: She said³ "[y]ou cannot keep sending us this many students and expect us to do lab work in rooms this size where the tables move too easily. It’s just too crowded”. "When you throw more students in that classroom * * * [y]ou have more hands to get into things, more bodies in the small amount of space, more confusion at times. People sometimes bump into each other. You tend to have more clumsiness occurring and it’s just too hard to manage too many students.”

Introductory Physical Science is the first science course offered the high school students. The course experiments are relatively simple. During the first six to ten weeks the experiments concentrate on measuring. At about the eighth to tenth week the experiments require heat, and burners are used in two experiments. In the chemistry laboratory the students use gas-fired burners which are connected to a permanent installation for the gas supply. In the substitute room portable alcohol burners were used.

The alcohol was stored in the chemistry lab. A practice developed of pouring the alcohol into a plastic jug for transport to the substitute classroom. Before school the classroom teacher poured enough alcohol into the jug for the day’s classes. The alcohol jug and burners were put on the rear counter. The jug had an open top. Students filled their burners at the counter and took them to their desks. The classroom teacher lit the burners at the desks. Goggles were worn during the experiment. After the experiment the students were to extinguish the burners and return them to the counter.

At the time of the accident Foxworth was returning her burner and noticed a lighted burner on the counter. She picked it up and as she attempted to extinguish it an explosion occurred and she caught fire.

Foxworth panicked. Another teacher came into the room. The fire extinguisher, which was kept at the opposite end of the room, was given to the classroom teacher and she put out the fire.

Foxworth suffered second- and third-degree burns.

II

Plaintiffs contend that the school district is not immune from suit because:

i) the governmental tort liability act⁴ is unconstitutional, or, alternatively,

ii) the operation of a school is not a "governmental function” within the meaning of that act, and, in any event,

iii) it is liable under the defective building provision⁵ of the act because the classroom lacked necessary safety equipment.

Three Justices have indicated in other opinions⁶ that a school district is subject to liability for negligence⁷ in the operation of a school and would therefore find it unnecessary to decide whether the complaint states a claim within the defective building provision. Because there is no majority to so hold, we must determine whether the complaint states a claim within the defective building provision. We hold that it does.

The defective building provision, in relevant part, reads as follows:

“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.” MCL 691.1406; MSA 3.996(106).

The school district contends that the provision "impose[s] liability only for those injuries resulting from defective conditions in public buildings caused by inadequate or negligent repairs or maintenance [emphasis in original]”. The duty is only to "repair and maintain”, and unless that duty is breached there can be no liability. Plaintiffs have not alleged a failure to "repair or maintain” the building and have therefore failed to state a cause of action.

In an analogous situation involving defective highways, this Court has rejected similar arguments. Statutes imposed a duty to keep highways "in reasonable repair” and "reasonably safe and fit [or 'convenient’] for travel”.⁸ It was unsuccessfully argued that "reasonable repair” qualifies and limits "reasonably safe and fit [convenient] for travel”.

In Joslyn v Detroit, 74 Mich 458, 459, 460; 42 NW 50 (1889), the city claimed that it was not liable "because the injury did not result from a want of repair of the street”,⁹ and in Finch v Village of Bangor, 133 Mich 149, 150; 94 NW 738 (1903), the village argued that it was not liable because "want of repair was not the immediate cause of the injury”.¹⁰ This Court construed the statutes as imposing a duty to keep the highway both in "good repair” and in a condition "reasonably safe and fit for travel”.

In Malloy v Walker Twp, 77 Mich 448, 458; 43 NW 1012 (1889), the plaintiff did not claim any failure to repair, but asserted that the township had been negligent in not providing barriers or railings along the side of an embankment. The township asserted that liability could not be imposed "on account of a plan or scheme of construction of a road”. This Court responded:

"A municipality cannot construct a dangerous and unsafe road, — one not safe and convenient for public travel, — and shield itself behind its legislative power to adopt a plan and method of building and constructing in accordance therewith.” Id., p 462.¹¹

The defective building provision is structurally similar to the defective highway provisions. It states a duty, "repair and maintain”, and in providing a cause of action extends it to "a dangerous or defective condition of a building”. We construe the defective building provision as we have the defective highway provision. Governmental agencies are subject to liability for a dangerous or defective condition of a public building without regard to whether it arises out of a failure to repair and maintain.

As in the highway cases, a building may be dangerous or defective because of improper design, faulty construction or the absence of safety devices.

Plaintiff has alleged that the improper design of the classroom and absence of safety devices rendered it unsafe as a science classroom, and the classroom was therefore dangerous and defective and a cause of Foxworth’s injuries.

Ill

Two judges of the Court of Appeals said that "as to particular uses or activities for which a public building, or a part thereof, is specifically assigned, failure to provide the usual building components and safety devices appropriate to such contemplated use would be actionable under the statute”,¹² but affirmed the summary judgment because "the complaint alleges a course of classroom conduct which would be dangerous even in a properly equipped laboratory”.¹³ The third judge agreed with affirmance because Foxworth’s "injury did not result from a defective condition of the building but from the use to which the classroom was put”.¹⁴

We agree with the majority of the Court of Appeals that the question whether a part of a building, in this case a classroom, is dangerous or defective is to be determined in light of the "uses or activities” for which it is "specifically assigned”, in this case a physical science class. As stated in Pichette v Manistique Public Schools, 403 Mich 268, 285; 269 NW2d 143 (1978) (Fitzgerald, J.), "in providing for the three exceptions to the general grant of immunity contained in MCL 691.1407; MSA 3.996(107), the Legislature intended to protect the general public from injury by imposing upon governmental agencies the duty to maintain safe public places, whether such places are public highways or public buildings.” (Emphasis supplied.)

To be sure, the lack of certain safety devices did not render the classroom defective per se; it is ordinarily unnecessary to install laboratory safety equipment in classrooms. In determining whether a place is safe, one must consider the use or purpose it serves. A building may be safe for one use or purpose, but not for another. A school is not a school because it is called one, but because it is used and functions as one. If a hospital is converted into a prison, the building must be maintained as a safe prison, not as a safe hospital. The room in which Foxworth was injured had by use become a physical science room, and therefore had to meet the standards of a physical science room although it had once been a mathematics room.

The trier of fact must determine whether the room was defective when used as a physical science classroom and, if so, whether the defect was a cause of Foxworth’s injuries. Conceding that the alleged "course of classroom conduct * * * would be dangerous even in a properly equipped laboratory”, it is yet possible that if the room were properly equipped the accident would not have occurred or the injuries would have been less severe. The question of the significance of the defect in relation to the alleged injuries is a question of fact.

IV

The school district claimed that increased enrollment necessitated conducting physical science classes in non-laboratory rooms. We recognize that circumstances change and temporary accommodation must be made so that business may continue while adjustments are being made. In such situations it might be reasonable to change temporarily the use of a building or room or in the case of a highway, reroute traffic.

A governmental agency is not subject to liability for a dangerous or defective condition unless it "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”.¹⁵ It was thus a question of fact whether the school district, with knowledge of the defect, failed "to take action reasonably necessary to protect” the students. Temporary use of the unconverted room may have been reasonable provided the school district took appropriate action to protect the students until permanent protective measures could be provided.¹⁶

V

The complaint against the individual defendants was dismissed on the ground that it failed to state a claim upon which relief can be granted, GCR 1963, 117.2(1). The complaint did state claims against the individual defendants.

We reverse and remand for trial.

Kavanagh and Fitzgerald, JJ., concurred with Levin, J.

1 The motion was brought under GCR 1963, 117.2(1), failure to state a claim upon which relief can be granted. The parties stipulated that the judge could consider depositions in deciding the motion. The depositions are a part of the record on appeal and are the basis of the facts related in Part I.

We do not wish to be understood as indicating that even upon stipulation of the parties a judge may decide disputed factual questions in resolving whether a complaint states a claim upon which relief can be granted. We view the stipulation as permitting consideration of undisputed testimony as an expansion and particularization of allegations of plaintiffs complaint.

2 Bush v Oscoda Area Schools, 72 Mich App 670, 676; 250 NW2d 759 (1976).

3 See fn 1, supra.

4 MCL 691.1401 et seq.; MSA 3.996(101) et seq.

5 MCL 691.1406; MSA 3.996(106).

6 I would hold on equal protection grounds that a school district is subject to the same liability as a private school. See Thomas v Dep’t of State Highways, 398 Mich 1, 14; 247 NW2d 530 (1976). Justice Kavanagh and Justice Fitzgerald have said in an opinion which I signed that the operation of a school is not a governmental function. Thomas v Dep’t of State Highways, supra, pp 21-22. See, also, Pichette v Manistique Public Schools, 403 Mich 268; 269 NW2d 143 (1978).

7 Plaintiffs negligence theory and defective building theory are not equivalents. Plaintiffs negligence theory was that the defendants failed to exercise due care in holding the class in a non-laboratory room, scheduling too many students in the classroom and failing to adequately supervise the class.

Plaintiffs defective building theory is based on lack of safety devices.

The two theories are not equivalents because plaintiff might fail to prove that lack of safety devices, the alleged building defect, was a cause of the injury, and yet, had they been permitted to proceed on the negligence theory, may have been successful in establishing, for example, that the lack of supervision or the size of the class was a cause of the injuries.

8 "Each governmental agency having jurisdiction over any highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel. Any person sustaining bodily injury or damage to his property by reason of failure of any governmental agency to keep any highway under its jurisdiction in reasonable repair, and in condition reasonably safe and fit for travel, may recover the damages suffered by him from such governmental agency.” MCL .691.1402; MSA 3.996(102).

The source of the statute contained almost identical language. It imposed on.townships, villages, cities or corporations "the duty * * * to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all public highways * * *”. (Emphasis supplied.) 1909 PA 283, ch 22, § 3; 1915 CL 4586; 1929 CL 4225; 1948 CL 242.3; 1887 PA 264, § 3; 1897 CL 3443; 1885 PA 214, § 4; 1879 PA 244, §4.

Another section of the act created the cause of action for those injured by reason of a defective highway. It provided:

“Any person or persons sustaining bodily injury upon any of the public highways or streets in this state, by reason of neglect to keep such public highways or streets, and all bridges, sidewalks, crosswalks and culverts on the same in reasonable repair, and in condition reasonably safe and fit for travel by the township, village, city or corporation whose corporate authority extends over such public highway, street, bridge, sidewalk, crosswalk or culvert and whose duty it is to keep the same in reasonable repair, such township, village, city or corporation shall be liable to and shall pay to the person or persons so injured or disabled just damages, to be recovered in an action of trespass on the case before any court of competent jurisdiction.” 1909 PA 283, ch 22, § 1; 1915 CL 4584, § 1; 1929 CL 4223, § 1; 1948 CL 242.1; 1887 PA 264, § 1; 1897 CL 3441, § 1; 1885 PA 214, § 1; 1879 PA 244, § 1 (emphasis supplied).

The comparable statute imposing on counties the duty to keep highways in reasonable repair contains the same language as the repealed city-township statute. The county statute, as does the present defective highway statute, establishes the cause of action within the provision imposing the duty. MCL 224.21; MSA 9.121.

9 In Joslyn v Detroit, 74 Mich 458, 459; 42 NW 50 (1889), a private citizen had piled sand in the street while building a house. Plaintiff claimed that the city was negligent "in placing and in allowing the said bank to obstruct the street for so long a time, and in not providing suitable warnings to prevent any collision therewith”.

10 This Court held it to be a jury question whether under the circumstances the street was kept in a reasonably safe condition. Finch v Village of Bangor, 133 Mich 149, 151; 94 NW 738 (1903); see, also, McEvoy v Sault Ste Marie, 136 Mich 172; 98 NW 1006 (1904); Jablonski v Bay City, 248 Mich 306; 226 NW 865 (1929); Kowalczyk v Bailey, 379 Mich 568; 153 NW2d 660 (1967); Peters v Dep’t of State Highways, 400 Mich 50; 252 NW2d 799 (1977); Mullins v Wayne County, 16 Mich App 365; 168 NW2d 246 (1969).

11 See, also, Carver v Detroit & Saline Plank Road Co, 61 Mich 584, 590; 28 NW 721 (1886).

12 Bush v Oscoda Area Schools, supra, p 699 (Peterson, J.).

13 Id., p 700.

14 Id., p 675 (Kelly, J.).

¹⁵

16 Similarly, in the highway situation, when there is a temporary detour during construction, it is within the duty to keep highways safe for public travel that the city "must take into account the natural inclination of children to run about in play and the perverse insistence of adults to cut corners and cross streets and grass plats instead of following precisely the beaten or provided path”. Jablonski v Bay City, supra, p 310.