Kortering v. Muskegon

Michigan Court of Appeals

Kortering v. Muskegon

199 N.W.2d 660, 41 Mich. App. 153, 1972 Mich. App. LEXIS 1296

CourtMichigan Court of Appeals

DecidedMay 26, 1972

DocketDocket 12891

StatusPublished

Cited by10 cases

This text of 199 N.W.2d 660 (Kortering v. Muskegon) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kortering v. Muskegon, 199 N.W.2d 660, 41 Mich. App. 153, 1972 Mich. App. LEXIS 1296 (Mich. Ct. App. 1972).

Pincite

Opinion

R. B. Burns, P. J.

This is a class action 1 brought by plaintiffs to compel the City of Muskegon to provide paid and trained guards at various highway crosswalks in the City to assist children at such crosswalks as they proceed to and from their schools. For many years prior to the 1971-72 school year defendant had utilized trained crossing guards. Plaintiffs appeal from the trial court’s summary dismissal of their complaint.

Because of the nature of plaintiffs’ requested relief, i.e., mandamus 2 they were burdened with a high degree of proof. A writ of mandamus will issue only if plaintiffs prove they have a "clear legal right to performance of the specific duty sought to be compelled” and that defendant has a "clear legal duty to perform such act”. Toan v McGinn, 271 Mich 28, 34 (1935); Iron County Board of Supervisors v Crystal Falls, 23 Mich App 319, 322 (1970). This Court will not interfere with the trial court’s refusal to issue a writ of mandamus unless it is evident that such refusal constitutes a clear abuse of its discretion. Spalding v Spalding, 355 Mich 382 (1959); Parraghi v Pizzimenti, 37 Mich App 290 (1971).

In our view the trial court’s decision to grant *155 summary judgment to defendant on the ground that plaintiffs failed to state a claim upon which relief could be granted 3 was entirely proper.

In attempting to establish the "clear legal duty and right” preconditions tó mandamus issuance, plaintiffs rely on MCLA 691.1402; MSA 3.996(102) which provides in part:

"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.”

This statutory language does not impose a duty to provide crossing guards with "such precision and certainty as to leave nothing to the exercise of discretion or judgment”. Toan v McGinn, supra, p 34; Iron County Board of Supervisors, supra, p 322.

The determination of providing general and auxiliary services by a city should be left to the discretion of the city officials. See Cicotte v Damron, 345 Mich 528 (1956).

Affirmed. No costs; a public question.

All concurred.

1

See GCR 1963, 208.

2

See GCR 1963, 714.

3

See GCR 1963,117.2(1).

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R. B. Burns, P. J.

This is a class action 1 brought by plaintiffs to compel the City of Muskegon to provide paid and trained guards at various highway crosswalks in the City to assist children at such crosswalks as they proceed to and from their schools. For many years prior to the 1971-72 school year defendant had utilized trained crossing guards. Plaintiffs appeal from the trial court’s summary dismissal of their complaint.

Because of the nature of plaintiffs’ requested relief, i.e., mandamus 2 they were burdened with a high degree of proof. A writ of mandamus will issue only if plaintiffs prove they have a "clear legal right to performance of the specific duty sought to be compelled” and that defendant has a "clear legal duty to perform such act”. Toan v McGinn, 271 Mich 28, 34 (1935); Iron County Board of Supervisors v Crystal Falls, 23 Mich App 319, 322 (1970). This Court will not interfere with the trial court’s refusal to issue a writ of mandamus unless it is evident that such refusal constitutes a clear abuse of its discretion. Spalding v Spalding, 355 Mich 382 (1959); Parraghi v Pizzimenti, 37 Mich App 290 (1971).

In our view the trial court’s decision to grant *155 summary judgment to defendant on the ground that plaintiffs failed to state a claim upon which relief could be granted 3 was entirely proper.

In attempting to establish the "clear legal duty and right” preconditions tó mandamus issuance, plaintiffs rely on MCLA 691.1402; MSA 3.996(102) which provides in part:

"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.”

This statutory language does not impose a duty to provide crossing guards with "such precision and certainty as to leave nothing to the exercise of discretion or judgment”. Toan v McGinn, supra, p 34; Iron County Board of Supervisors, supra, p 322.

The determination of providing general and auxiliary services by a city should be left to the discretion of the city officials. See Cicotte v Damron, 345 Mich 528 (1956).

Affirmed. No costs; a public question.

All concurred.

1

See GCR 1963, 208.

2

See GCR 1963, 714.

3

See GCR 1963,117.2(1).

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Bluebook (online)

199 N.W.2d 660, 41 Mich. App. 153, 1972 Mich. App. LEXIS 1296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kortering-v-muskegon-michctapp-1972.

Opinion

R. B. Burns, P. J.

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