MICHAEL BEARD V CITY OF ST CLAIR SHORES
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STATE OF MICHIGAN
COURT OF APPEALS
MICHAEL BEARD,
UNPUBLISHED
October 8, 1999
Plaintiff-Appellant,
v
CITY OF ST. CLAIR SHORES and PATE, HIRN
& BOGUE, INC.,
No. 206605
Macomb Circuit Court
LC No. 96-001397 NO
Defendants-Appellees.
Before: Zahra, P.J., and Saad and Collins, JJ.
PER CURIAM.
Plaintiff appeals from two orders granting defendants, City of St. Clair Shores (“the City”) and
Pate, Hirn & Bogue, Inc. (“Pate”), summary disposition in this negligence action. We affirm.
Plaintiff’s employer, Salvatore Excavating Company (“Salvatore”), was the general contractor
for the City’s sanitary and storm sewer replacement project. Plaintiff was injured on the project as he
stood at the bottom of a trench, trying to uncover a gas line. In his complaint, plaintiff alleged that the
City, as the owner of the site, and Pate, as the engineer, were negligent in allowing plaintiff to work in a
ten-foot trench which was inadequately supported. Plaintiff further alleged that the work activity was
inherently dangerous and, therefore, neither the City nor Pate could delegate the responsibility of
providing a safe work environment to Salvatore. Plaintiff also alleged that the City and Pate retained
control over the work site.
The trial court granted the City’s motion for summary disposition pursuant to MCR
2.116(C)(7), (C)(8) and (C)(10). It found that the work activity was not inherently dangerous and that
the City was engaged in a governmental function. The court granted Pate’s motion for summary
disposition pursuant to MCR 2.116(C)(10), on the basis that Pate did not owe plaintiff a duty to
provide a safe work environment.
Plaintiff first argues on appeal that the trial court erred in granting summary disposition to the
City. We disagree. Appellate review of a motion for summary disposition is de novo. Spiek v Dep’t
of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Pursuant to MCR 2.116(C)(7), a
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defendant may be granted summary disposition on the ground that a plaintiff’s claim is barred by
immunity granted by law. Smith v Kowalski, 223 Mich App 610, 616; 567 NW2d 463 (1997). The
applicability of governmental immunity also is reviewed de novo on appeal. Baker v Waste Mgt of
Michigan, Inc, 208 Mich App 602, 605; 528 NW2d 835 (1995).
MCL 691.1407(1); MSA 3.996(107)(1) provides, in pertinent part, as follows:
Except as otherwise provided in this act, 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.
A governmental agency is defined as “the state, political subdivisions, and municipal corporations.”
MCL 691.1401(d); MSA 3.996(101)(d). A governmental function is an activity that is expressly or
impliedly mandated or authorized by constitution, statute, or other law. Ross v Consumers Power Co
(On Rehearing), 420 Mich 567, 620; 363 NW2d 641 (1984); Adam v Sylvan Glynn Golf Course,
197 Mich App 95, 97; 494 NW2d 791 (1992); MCL 691.1401(f); MSA 3.996(101)(1)(f). This
definition is to be broadly applied; it requires only that there be some constitutional, statutory, or other
legal basis for the activity in which the agency was engaged. Adam, supra.
We agree with the trial court that operation and maintenance of a sewer system constitutes a
governmental function. See Ross, supra at 637-638; Const 1963, art 4, §§ 51 and 52, and art 7, § 23;
and MCL 123.201; MSA 5.2701. Plaintiff argues that under Mitts v Fowlerville, 119 Mich App 76,
78; 326 NW2d 431 (1982), operation and maintenance of a sewer system cannot be a governmental
function because it is not an activity that can only be accomplished by the government. However, in
Ross, supra at 616-617, our Supreme Court rejected such a narrow definition of governmental function
in favor of the broad definition discussed above. Plaintiff also contends that governmental immunity
does not apply because the City was grossly negligent in construction of the project. However, the
gross negligence limitation on governmental immunity provided for in MCL 691.1407(2); MSA
3.996(107)(2), extends only to individuals, not to governmental agencies. Gracey v Wayne Co Clerk,
213 Mich App 412, 420; 540 NW2d 710 (1995), overruled on other grounds 454 Mich 135 (1997).
Because the City was engaged in the discharge of a governmental function, plaintiff’s suit against the
City is barred by immunity granted by law and summary disposition under MCR 2.116(C)(7) was
properly granted. As this ruling is dispositive of plaintiff’s claim, we need not address whether summary
disposition was proper under MCR 2.116(C)(8) or (10).
Plaintiff’s also argues on appeal that the trial court erred in granting summary disposition to Pate
pursuant to MCR 2.116(C)(10) on the basis that Pate owed no duty to plaintiff. We disagree. A
motion under MCR 2.116(C)(10) tests the factual support for a claim. Spiek, supra. In reviewing a
trial court’s decision on the motion, we consider the affidavits, pleadings, depositions, admissions and
documentary evidence filed in the action or submitted by the parties, MCR 2.116(G)(5), in a light most
favorable to the nonmoving party, Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314
(1996), and grant the benefit of all reasonable doubt to that party, Bourne v Farmers Ins Exchange,
449 Mich 193, 197; 534 NW2d 491 (1995). Where there exists no genuine issue as to any material
fact, the moving party is entitled to judgment as a matter of law. Id.
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Plaintiff contends that under the City’s contract with Salvatore, Pate was the “controlling
employer” at the work site and, therefore, had a duty to ensure that construction proceeded safely.
Questions regarding duty are for the court to decide as a matter of law. Mason v Royal Dequindre,
Inc, 455 Mich 391, 397; 566 NW2d 199 (1997). Whether contract language is ambiguous also is a
question of law. Brucker v McKinlay Transport, Inc (On Remand), 225 Mich App 442, 447-448;
571 NW2d 548 (1997). If the contractual language is clear and unambiguous, its meaning is a question
of law as well. Id.
The trial court found that the City’s contract with Salvatore clearly and unambiguously assigned
responsibility for safety at the work site to Salvatore. The court also found that although Pate was not a
party to the contract, the contract defined Pate’s status as engineer. Section 20 under “General
Conditions” of the parties’ contract provides, in pertinent part:
In accordance with generally accepted construction practices, the Contractor shall be
solely and completely responsible for conditions of the job site, including safety of all
persons and property during performance of the work.
***
The Contractor shall assume full responsibility for the work and take all precautions for
preventing injuries to persons and property on or about the work, including furnishing all
applicable safety equipment and devices and providing adequate training of his
employees in the recommended use of same, . . .
Moreover, section 18 under that same heading provides, in pertinent part, that “[t]he Engineer shall not
be responsible for the construction means, controls, techniques, procedures or construction safety.”
Although plaintiff contends that these provisions conflict with other contractual provisions allowing Pate
to stop work and fire incompetent contractors or their employees, the provisions referenced by plaintiff
clearly pertain to Pate’s oversight of the quality of the work performed, not safety. Therefore, trial court
correctly found that the contract language clearly and unambiguously assigned responsibility for safety at
the work site to Salvatore and imposed no duty with regard to safety upon Pate.
Furthermore, the trial court properly disregarded the affidavit of George Bowden, which stated,
in conclusory fashion without any factual basis, that Pate was the “controlling employer” at the work site
and in the best position to correct any safety hazard. Affidavits submitted with regard to a motion for
summary disposition, MCR 2.116(G)(3), must be made on the basis of personal knowledge and must
set forth with particularity such facts as would be admissible as evidence to establish or deny the
grounds stated in the motion. SSC Associates Ltd Partnership v General Retirement System of the
City of Detroit, 192 Mich App 360, 363-364; 480 NW2d 275 (1991). “Opinions, conclusionary
denials, unsworn averments, and inadmissible hearsay do not satisfy the court rule; disputed fact (or lack
of it) must be established by admissible evidence.” Id.
Finally, plaintiff contends that, notwithstanding the terms of the City’s contract with Salvatore,
Pate is subject to liability for plaintiff’s injuries because Pate retained control of the project and because
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the work being performed was inherently dangerous. In other words, argues plaintiff, the responsibility
for monitoring safety at the work site that plaintiff attributes to Pate was “nondelegable.” Plaintiff relies,
in part, on Samodai v Chrysler Corp, 178 Mich App 252, 255; 443 NW2d 391 (1989), where this
Court explained:
As a general rule, an owner of property is not liable to an employee of an
independent contractor for negligence. In such situations, the actual employer of a
worker is immediately responsible for job safety and for maintaining a safe work place.
The two main exceptions to this general rule provide for liability if: (1) the property
owner retains control over the work done and the contractor’s activities or (2) the
work is inherently dangerous—the work can reasonably be foreseen as dangerous to
third parties. [Emphasis added; citations omitted.]
Plaintiff’s reliance on Samodai and related cases is misplaced. The trial court correctly found that
neither of the above exceptions could apply to Pate because Pate was simply the project engineer and
never attained the status of owner or general contractor. See also Funk v General Motors Corp, 392
Mich 91, 101-102; 220 NW2d 641 (1974), overruled in part on another ground by Hardy v
Monsanto Enviro-Chem Systems, Inc, 414 Mich 29; 323 NW2d 270 (1982). Furthermore, plaintiff
did not successfully raise an issue of fact with regard to whether Pate, in its capacity as project engineer,
ever attained the sort of control over the work site or possessed the duties or responsibilities that could
be attributed to an owner or general contractor. As discussed above, Bowden’s conclusory affidavit
referring to Pate as the “controlling employer” is insufficient to create an issue of fact. Because Pate
owed plaintiff no duty, the trial court correctly granted summary disposition in favor of Pate.
Affirmed.
/s/ Brian K. Zahra
/s/ Henry William Saad
/s/ Jeffrey G. Collins
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