Landsfield v. R J Smith Contractors, Inc

Michigan Court of Appeals

Landsfield v. R J Smith Contractors, Inc

341 N.W.2d 184, 128 Mich. App. 704

CourtMichigan Court of Appeals

DecidedSeptember 14, 1983

DocketDocket 59303

StatusPublished

Cited by4 cases

This text of 341 N.W.2d 184 (Landsfield v. R J Smith Contractors, Inc) 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.

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Landsfield v. R J Smith Contractors, Inc, 341 N.W.2d 184, 128 Mich. App. 704 (Mich. Ct. App. 1983).

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Per Curiam.

Plaintiffs appeal from the trial court’s order granting defendant Robert Troy’s motion for accelerated judgment pursuant to GCR 1963, 116.1(5). Mr. Troy cross-appeals from the trial court’s denial of his motion for summary judgment pursuant to GCR 1963, 117.2(3).

[706]*706On May 24, 1971, plaintiffs contracted with defendant R. J. Smith Contractors, Inc. (Smith), for the construction of their residence. Shortly before the completion of the project, Mr. Troy, the building inspector for the Township of East China, inspected the structure. According to the complaint, Mr. Troy assured the plaintiffs that the structure was free of defects, even though the walls displayed cracks and separations. In July, 1979, plaintiffs commenced this action. Count I of the complaint alleged that Smith had failed to comply with the contract and with the building code of the township. Count II alleged that Mr. Troy breached his duty to inspect the plaintiffs’ residence to determine whether it complied with the township’s building code.

We find that Mr. Troy’s claim on cross-appeal is dispositive and, therefore, we decline to address plaintiffs’ allegation of error.

Mr. Troy moved for summary judgment on the ground that he was entitled to governmental immunity. This Court is divided on the proper standard to apply in assessing a public employee’s claim that he is entitled to governmental immunity. Some panels subscribe to the ministerial-discretionary test. See, e.g., Willis v Nienow, 113 Mich App 30; 317 NW2d 273 (1982). Other panels have held that a public employee is immune from liability for negligence arising out of acts performed within the scope of employment. See, e.g., Gaston v Becker, 111 Mich App 692; 314 NW2d 728 (1981). We follow the "scope of employment test”. Under that test, a public employee is immune from liability for negligence only if the duty allegedly breached is imposed upon him because of the public nature of his employment. Davis v Lhim, 124 Mich App 291; 335 NW2d 481 (1983). In [707]*707the present case, Mr. Troy’s duty to determine whether plaintiffs’ residence complied with the building code of the township is basically a public duty. Therefore, Mr. Troy is entitled to governmental immunity. The trial court erred in ruling otherwise.

Reversed and remanded to the trial court with instructions to enter summary judgment in favor of defendant Robert Troy.

Reversed and remanded. No costs, a significant public question being involved.

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Per Curiam.

Plaintiffs appeal from the trial court’s order granting defendant Robert Troy’s motion for accelerated judgment pursuant to GCR 1963, 116.1(5). Mr. Troy cross-appeals from the trial court’s denial of his motion for summary judgment pursuant to GCR 1963, 117.2(3).

[706]*706On May 24, 1971, plaintiffs contracted with defendant R. J. Smith Contractors, Inc. (Smith), for the construction of their residence. Shortly before the completion of the project, Mr. Troy, the building inspector for the Township of East China, inspected the structure. According to the complaint, Mr. Troy assured the plaintiffs that the structure was free of defects, even though the walls displayed cracks and separations. In July, 1979, plaintiffs commenced this action. Count I of the complaint alleged that Smith had failed to comply with the contract and with the building code of the township. Count II alleged that Mr. Troy breached his duty to inspect the plaintiffs’ residence to determine whether it complied with the township’s building code.

We find that Mr. Troy’s claim on cross-appeal is dispositive and, therefore, we decline to address plaintiffs’ allegation of error.

Mr. Troy moved for summary judgment on the ground that he was entitled to governmental immunity. This Court is divided on the proper standard to apply in assessing a public employee’s claim that he is entitled to governmental immunity. Some panels subscribe to the ministerial-discretionary test. See, e.g., Willis v Nienow, 113 Mich App 30; 317 NW2d 273 (1982). Other panels have held that a public employee is immune from liability for negligence arising out of acts performed within the scope of employment. See, e.g., Gaston v Becker, 111 Mich App 692; 314 NW2d 728 (1981). We follow the "scope of employment test”. Under that test, a public employee is immune from liability for negligence only if the duty allegedly breached is imposed upon him because of the public nature of his employment. Davis v Lhim, 124 Mich App 291; 335 NW2d 481 (1983). In [707]*707the present case, Mr. Troy’s duty to determine whether plaintiffs’ residence complied with the building code of the township is basically a public duty. Therefore, Mr. Troy is entitled to governmental immunity. The trial court erred in ruling otherwise.

Reversed and remanded to the trial court with instructions to enter summary judgment in favor of defendant Robert Troy.

Reversed and remanded. No costs, a significant public question being involved.

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341 N.W.2d 184, 128 Mich. App. 704, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landsfield-v-r-j-smith-contractors-inc-michctapp-1983.

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