Page v. Klein Tools, Inc

610 N.W.2d 900, 461 Mich. 703

• Court: Michigan Supreme Court
• Decided: April 25, 2000
• Docket: 112464, Calendar No. 4
• Status: Published

Opinions

Young, J.

Plaintiff Kenneth Page completed a three-week course provided by defendant American Line Builders Apprenticeship Training Program (albat) in which he was taught methods of climbing wooden utility poles. He later was injured when he fell from a utility pole on which he was working. He subsequently brought suit against defendant.

We granted leave in this case to determine whether plaintiff may assert a claim that defendant was negligent in failing to instruct him how to climb safely. We hold that plaintiff’s allegations amount to a claim of “educational malpractice,” which we decline to recognize. Accordingly, we reverse the decision of the Court of Appeals on this issue.

I. FACTUAL AND PROCEDURAL BACKGROUND

In February 1993, plaintiff attended a three-week class provided by albat in which he was instructed regarding how to climb a wooden utility pole using equipment designed for that purpose. At the end of the course, plaintiff purchased from albat the equipment that he had used during the course. This equipment consisted of a body belt, gaffs, and a pole strap. The body belt is a leather belt designed for holding tools. It also has metal “d” rings to which the pole strap can be connected. The pole strap is designed to go around the pole and attach to the climber’s body belt. The pole strap supports the climber when he leans backward. Gaffs are spikes that are strapped to the climber’s legs to aid in climbing.

Shortly after completing the three-week climbing course, plaintiff was hired by the Hydaker-Wheatlake Company as an apprentice linesman. On April 3, 1993, plaintiff was working on a utility pole in Alma, Michigan. While in the process of descending the pole, he fell to the ground from a height of sixty feet, receiving serious injuries. In his deposition, plaintiff acknowledged that he does not remember anything about the fall or exactly how it happened. However, it apparently is undisputed that, at the time of his fall, he had disconnected his pole strap in order to maneuver around a “cross bar” that extended from the pole. There also is no dispute that the applicable climbing method taught by albat involved the climber unhooking his pole strap from the “d” ring on his body belt, moving past the obstacle, and then rehooking the strap around the pole.

Plaintiff subsequently filed suit against albat, among others. Plaintiffs first amended complaint set forth two counts against albat, which significantly overlapped. Count m, labeled “Negligence,” alleged in relevant part that albat was negligent in supplying inappropriate climbing equipment and also in failing to provide adequate instructions, education, and warning regarding pole climbing.

Count IV was labeled “Breach of Implied Warranty.” It alleged that albat breached express or implied warranties by selling plaintiff equipment that was improperly designed, manufactured, and sold, that was supplied without adequate warnings and instructions, and that was supplied without independent fall arrest equipment.¹

Albat moved for summary disposition under MCR 2.116(C)(8) and (C)(10), arguing that it had no duty to supply plaintiff with additional equipment. Albat further argued that plaintiffs claim that it failed to provide adequate instruction regarding pole climbing was a claim for educational malpractice that, according to Nalepa v Plymouth-Canton Community School Dist, 207 Mich App 580; 525 NW2d 897 (1994), was not a recognized cause of action in Michigan. The trial court granted the motion and dismissed plaintiff’s complaint against albat.

The Court of Appeals, in a split opinion,² affirmed in part, reversed in part, and remanded. Citing Antcliff v State Employees Credit Union, 414 Mich 624, 639-640; 327 NW2d 814 (1982), the Court held that the trial court properly dismissed plaintiff’s claim sounding in products liability because albat had no duty to instruct or warn that the pole strap it sold to plaintiff as a component part would be safer if used in conjunction with fall arrest equipment.³

However, the Court reversed the trial court’s decision, dismissing plaintiff’s claim that albat was negligent for failing to provide adequate instruction regarding utility pole climbing. Although the Court of Appeals majority recognized that claims of so-called “educational malpractice” are widely disfavored, it believed plaintiff’s claim to be one of “simple negligence”:

This is not a case in which a plaintiff has alleged a failure in the overall educational program of an educational entity. Plaintiff is not asking the court to interfere with the purely academic decisions of an educational entity, to make judgments about the quality of broad educational policies, or to evaluate the overall quality of his education. Instead, plaintiff has made a very precise claim against a commercial vocational training entity based upon that entity’s alleged failure to instruct him on the proper methods and techniques of maneuvering around an obstacle on a utility pole ....

Judge Gage dissented. She argued that plaintiff “alleges failure to adequately instruct him on procedure and safety” and that such claims “lie within the area recognized as educational malpractice.”

We granted defendant’s application for leave to appeal. 460 Mich 851 (1999).

H. STANDARD OF REVIEW

The central issue in this case is one of law: whether claims sounding in educational malpractice should be recognized in Michigan. We decide questions of law de novo. Cardinal Mooney High School v Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467 NW2d 21 (1991).

m. ANALYSIS

As an initial matter, we wish to emphasize what our decision in this case does not address. In his appellate brief, plaintiff argues that albat had a duty arising out of the sale of the climbing equipment to ensure that he was thoroughly versed in all the uses and limitations of that equipment. The problem with that theory, however, is that it was already rejected by the Court of Appeals when it affirmed the trial court’s decision granting summary disposition to ALBAT on plaintiff’s claim “sounding in products liability.” Whatever the merits of that decision, we denied plaintiff’s cross-application for leave to appeal. 460 Mich 851 (1999).⁴ Accordingly, the only issue that is now before us involves plaintiff’s alternate claim that, by offering the three-week course that plaintiff attended, albat assumed a duty to teach him the fundamentals of pole climbing and that it was negligent in failing to instruct him about how to do so safely.⁵

A. EDUCATIONAL MALPRACTICE DEFINED

Peter W v San Francisco Unified School Dist, 60 Cal App 3d 814; 131 Cal Rptr 854 (1976), is considered to be the seminal case in the area of so-called “educational malpractice.” There, the eighteen-year-old plaintiff sued his school district for, among other things, negligently failing to teach him “basic academic skills such as reading and writing.” Id. at 818. Refusing to recognize a cause of action for what it characterized as “educational malfeasance,” the California court reasoned:

On occasions when the Supreme Court has opened or sanctioned new areas of tort liability, it has noted that the wrongs and injuries involved were both comprehensible and assessable within the existing judicial framework. . . . This is simply not true of wrongful conduct and injuries allegedly involved in educational malfeasance. Unlike the activity of the highway or the marketplace, classroom methodology affords no readily acceptable standards of care, or cause, or injury. The science of pedagogy itself is fraught with different and conflicting theories of how or what a child should be taught, and any layman might—and commonly does—have his own emphatic views on the subject. The “injury” claimed here is plaintiff’s inability to read and write. Substantial professional authority attests that the achievement of literacy in the schools, or its failure, are influenced by a host of factors which affect the pupil subjectively, from outside the formal teaching process, and beyond the control of its ministers. They may be physical, neurological, emotional, cultural, environmental; they may be present but not perceived, recognized but not identified.

We find in this situation no conceivable “workability of a rule of care” against which defendants’ alleged conduct may be measured ... , no reasonable “degree of certainty that . . . plaintiff suffered injury” within the meaning of the law of negligence . . . , and no such perceptible “connection between the defendant’s conduct and the iiyury suffered,” as alleged, which would establish a causal link between them within the same meaning. [Id. at 824-825 (citations omitted).]

Peter W represents the “classic” case of educational malpractice in which a public school is alleged to have failed to adequately instruct a student in basic academic skills. Such claims, including those directed at institutions of higher learning, are uniformly disfavored.⁶ Courts have also considered and rejected educational malpractice claims arising out of an alleged misdiagnosis of learning disabilities.⁷

Various public policy grounds have been advanced by those courts that have refused to recognize claims of educational malpractice, including:

(1) the lack of a satisfactory standard of care by which to evaluate an educator; (2) the inherent uncertainties about causation and the nature of damages in light of such intervening factors as a student’s attitude, motivation, temperament, past experience, and home environment; (3) the potential for a flood of litigation against schools; and (4) the possibility that such claims will “embroil the courts into overseeing the day-to-day operations of schools.” [Alsides v Brown Institute, Ltd, 592 NW2d 468, 472 (Minn App, 1999) (citation omitted).]

These and other related public policy grounds have also been cited by various courts that have declined to impose liability on proprietary and trade schools for educational malpractice. In Cavaliere v Duff’s Business Inst, 413 Pa Super 357; 605 A2d 397 (1992), the Pennsylvania court upheld the dismissal of the plaintiffs’ claim for educational malpractice brought against a court reporting school. The court explained:

The concerns that are clearly appropriate in the case of an academic institution are equally raised by an attempt to inquire into the sufficiency of teaching methods at a trade or business school like the Institute. This court would be hard pressed to determine which of several alternative methods of teaching court reporting, or auto repair, or any other specialized business or trade skill was the appropriate one. Nor would it be an easy task to determine why a particular student failed to acquire certain skills after pursuing a course of instruction aimed at teaching those skills. [Id. at 369.]

Similarly, in Tolman v CenCor Career Colleges, Inc, 851 P2d 203 (Colo App, 1992), aff’d 868 P2d 396 (Colo, 1994), the Colorado court upheld the dismissal of educational malpractice claims brought by nineteen former students of a vocational school for medical and dental assistants. The court relied on the following public policy rationale:

Since education is a collaborative and subjective process whose success is largely reliant on the student, and since the existence of such outside factors as a student’s attitude and abilities render it impossible to establish any quality or curriculum deficiencies as a proximate cause to any injuries, we rule that there is no workable standard of care here and defendant would face an undue burden if forced to litigate its selection of curriculum and teaching methods. [Id. at 205.]

B. VIABILITY OF EDUCATIONAL MALPRACTICE CLAIMS IN MICHIGAN

Our own Court of Appeals has also considered and rejected claims of educational malpractice. In Johnson v Clark, 165 Mich App 366, 367; 418 NW2d 466 (1987), the plaintiff, who had dyslexia and, as a high school graduate, could only read at the fourth-grade level, sued his teachers and the school psychologist, principal, and administrator, alleging that the “defendants’ failure to properly perform annual tests and evaluations required by . . . statute and regulations promulgated thereunder resulted in plaintiff’s failure to learn that he suffered from dyslexia.” The Court of Appeals affirmed the trial court’s grant of summary disposition in favor of the defendants on the ground that there was no common-law duty requiring teachers to properly test and evaluate special education students. Id. at 370.

In Nalepa, supra at 583, aff'd on other grounds 450 Mich 934 (1995),⁸ the plaintiffs’ second-grade son committed suicide after viewing a movie at school in which a young boy attempts suicide by hanging himself. The plaintiffs’ son hanged himself by a belt from the safety rail of the upper bunk bed in his bedroom. The plaintiffs sued various teachers and counselors, among others, alleging that they were negligent in showing such a film to second-graders. Dismissing the plaintiffs’ complaint, the Court of Appeals held that “allegations that teachers and faculty used improper materials and techniques to teach children amount to claims of teacher malpractice.” Id. at 594. The Court cited Johnson for the proposition that a teacher’s common-law liability for a student’s injuries caused by the teacher “does not extend to educational malpractice.” Id.

In reaching its decision, the Nalepa Court relied on the same public policy grounds commonly cited by those courts that have refused to recognized claims of educational malpractice. The Court explained:

The rationale for declining to recognize claims of teacher malpractice stems from the collaborative nature of the teaching process. See Ross v Creighton Univ, 740 F Supp 1319, 1328 (ND Ill, 1990), aff’d in part and rev’d and remanded in part on other grounds 957 F2d 410 (CA 7, 1992). For a positive result to obtain, both teacher and student must work together. The ultimate responsibility for what is learned, however, remains with the student, and many considerations, beyond teacher misfeasance, can factor into whether a student receives the intended message. Id. Further, teaching methods vary, and what is considered appropriate by some, may be considered inappropriate by others. Thus, because both the educational process and the result are subjective, there exists a practical impossibility of proving whether the alleged malpractice caused the complained-of injury. Id. [Id. at 594-595.]

The Court also found several other “policy considerations” to be applicable:

Even if the harm appears to flow from the alleged malpractice, for public policy reasons, we would still decline to recognize a duty. We agree with the Supreme Court of Wisconsin’s statement in another educational malpractice case:

“Even where the chain of causation is complete and direct, recovery may sometimes be denied on grounds of public policy because (1) the injury is too remote from the negligence; or (2) the injury is too wholly out of proportion to the culpability of the negligent tortfeasor; or (3) in retrospect it appears too highly extraordinary that the negligence should have brought about the harm; or (4) because allowance of recovery would place too unreasonable a burden [on the defendant]; or (5) because allowance of recovery would be too likely to open the way for fraudulent claims; or (6) allowance of recovery would enter a field that has no sensible or just stopping point.” [Wilson v Continental Ins Cos, 87 Wis 2d 310, 323-324; 274 NW2d 679 (1979), quoting Rieck v Medical Protective Co, 64 Wis 2d 514, 517-518; 219 NW2d 242 (1974).] [Id. at 595.]

We agree with and adopt as our own the reasoning employed by those courts that have declined to recognize a cause of action for educational malpractice, whether those claims are brought against public schools, institutions of higher learning, or private proprietary and trade schools. We therefore hold that claims sounding in educational malpractice, that is, claims alleging negligent instruction, are not cognizable in Michigan.

C. PLAINTIFF’S CLAIM

As stated, the essence of plaintiffs claim is that, by offering the three-week course that he attended, ALBAT assumed a duty to teach him the fundamentals of pole climbing and that it was negligent in failing to instruct plaintiff regarding how to do so safely. Plaintiff maintains that climbing with a pole strap alone is unsafe and that albat should also have instructed him regarding the use of independent fall arrest equipment. We conclude that plaintiff’s claim, properly characterized, is one of educational malpractice. Because plaintiff’s claim is legally deficient, it was properly dismissed under MCR 2.116(C)(8) (failure to state a claim on which relief can be granted).

Plaintiff would have the courts second-guess albat’s decision to teach pole climbing using the particular methods it chose. However, plaintiff’s claim illustrates the inherent difficulty in attempting to define the applicable standard of care in these types of cases. Plaintiff argues that albat was negligent because it failed to instruct him that he should not climb utility poles without using fall arrest equipment. Albat, on the other hand, argues that it had no responsibility to do so.⁹ We decline to become embroiled in the task of determining whether a trade school such as albat should be held liable in tort for failing to teach specific methods of climbing. It would be practically impossible to determine the precise scope of albat’s undertaking. How much was albat required to teach?

Moreover, as is typical in educational malpractice cases, any connection between plaintiff’s injury and the alleged negligence on the part of albat is remote at best. Even assuming that albat was found to have breached a duty to teach plaintiff every available method of pole climbing, a jury could only speculate about whether such negligence was a proximate cause of plaintiff’s fall and resulting injury. Plaintiff’s injury was far removed in time and place from albat’s three-week course. Indeed, plaintiff was subsequently hired by the Hydaker-Wheatlake Company to perform work on utility poles. Hydaker-Wheatlake, in turn, presumably exercised independent judgment regarding plaintiff’s abilities. In any event, albat certainly was not in a position to ensure that plaintiff would make proper use of the instruction he received. Allowing individuals such as plaintiff to assert claims of negligent instruction would avoid the practical reality that, in the end, it is the student who is responsible for his knowledge, including the limits of that knowledge.

IV. CONCLUSION

For all the reasons stated, we hold that claims alleging negligent instruction, whether those claims are brought against public schools, institutions of higher learning, or private proprietary and trade schools, are not cognizable in Michigan. We therefore reverse the decision of the Court of Appeals and reinstate the trial court’s decision granting summary disposition to ALBAT.

Weaver, C.J., and Taylor, Corrigan, and Markman, JJ., concurred with Young, J.

1 Fall arrest equipment, consisting primarily of a harness and lanyard, remains anchored to the pole itself to prevent a fall.

2 Unpublished opinion per curiam, issued June 5, 1998 (Docket No. 200788).

3 The Court characterized plaintiffs products liability claim as encompassing his allegations “that the equipment was improperly designed and manufactured, that defendant sold the equipment without adequate warnings and instructions, and that defendant failed to supply the equipment with a fall arrest system which is designed to suspend a worker in the air in the event of a fall.”

4 Despite this fact, the dissent repeatedly relies on plaintiffs allegations grounded in products liability. For example, the dissent, post at 728, argues that albat “had a duty to instruct plaintiff in the proper manner of climbing poles and using the equipment it provided him.” As explained below, to the extent plaintiff is stating a negligence claim arising out of the sale of the climbing equipment, it is not properly before us.

5 We note that, throughout the proceedings below, plaintiff has consistently articulated two separate theories of liability, one of which was grounded in products liability As stated, that theory was rejected by both the trial court and the Court of Appeals, and we denied leave to appeal. Plaintiffs alternate theory consistently has been that albat, for a fee, offered to instruct him regarding how to climb utility poles, and that it was negligent in failing to provide accurate and adequate instruction. It is that theory of liability that we address today.

6 See, e.g., Bell v Westhaven Bd of Ed, 55 Conn App 200; 739 A2d 321 (1999); Ross v Creighton Univ, 957 F2d 410 (CA 7, 1992) (applying Illinois law); Wickstrom v North Idaho College, 111 Idaho 450; 725 P2d 155 (1986); Swidryk v Saint Michael’s Medical Center, 201 NJ Super 601; 493 A2d 641 (1985); Donohue v Copiague Union Free School Dist, 47 NY2d 440; 418 NYS2d 375; 391 NE2d 1352 (1979); see also generally anno: Tort liability of public schools and institutions of higher learning for educational malpractice, 1 ALR4th 1139.

7 See, e.g., Brantley v Dist of Columbia, 640 A2d 181 (DC, 1994); Suriano v Hyde Park Central School Dist, 203 AD2d 553; 611 NYS2d 20 (1994); Doe v Montgomery Co Bd of Ed, 295 Md 67; 453 A2d 814 (1982); DSW v Fairbanks North Star Borough School Dist, 628 P2d 554 (Alas, 1981).

8 This Court affirmed the Court of Appeals decision on the ground that it reached the right result. However, we indicated that “[t]his action should not be construed as indicating our agreement with the reasoning set forth in the Court of Appeals opinion.” 450 Mich 934 (1995).

9 In support of that argument, albat points out that not even the federal Occupational Safety, and Health Administration (osha) requires the unconditional use of fall protection equipment. The pertinent osha regulation provides:

Fall protection equipment is not required to be used by a qualified employee climbing or changing location on poles, towers, or similar structures, unless conditions, such as, but not limited to, ice, high winds, the design of the structure (for example, no provision for holding on with hands), or the presence of contaminants on the structure, could cause the employee to lose his or her grip or footing. [29 CFR 1910.269(g)(2)(v).]