MARJORIE L RAKOWSKI V MICHAEL SARB
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
MARJORIE L. RAKOWSKI and ANTHONY
RAKOWSKI,
FOR PUBLICATION
February 7, 2006
9:00 a.m.
Plaintiffs-Appellees/CrossAppellants,
v
No. 261255
Wayne Circuit Court
LC No. 03-311780-NO
MICHAEL SARB,
Defendant-Appellant/CrossAppellee.
Official Reported Version
Before: Saad, P.J., and Hoekstra and Markey, JJ.
SAAD, P.J.
I. Nature of the Case
Plaintiffs' personal injury claim against defendant raises an issue of first impression under
Michigan law: Whether a municipal building inspector owes a duty of care under common-law
negligence to protect a homeowner's invitee from personal injury sustained by the invitee
because of an allegedly defective structure inspected and approved by the building inspector.
Neither state statute nor the building code adopted by the city imposes such a duty on a building
inspector. Further, our application of the factors historically used to determine whether a
common-law duty exists compels the conclusion that the municipal building inspector, Michael
Sarb, did not owe a duty to plaintiff Marjorie L. Rakowski. Because Ms. Rakowski failed to
establish that Mr. Sarb owed a duty under Michigan negligence law, the trial court should have
granted summary disposition to Mr. Sarb.
II. Facts and Procedural History
On May 10, 2001, Ms. Rakowski sustained injuries when the railing gave way on a ramp
for the handicapped at the home of her parents, Arthur and Virginia Kalis. The record reflects
that Ms. Rakowski's father, Arthur Kalis, applied for the building permit for the ramp from the
city of Dearborn Heights and that the city issued the permit on August 13, 1999. Contrary to a
statement in the permit application that Arthur Kalis would construct the ramp, Kalis hired Len
Cytacki, doing business as Alenda Carpentry, to build the ramp in August 1999. However,
before Cytacki completed the handrail, Cytacki was fired or quit the job. According to Cytacki,
-1-
before he left the Kalis home, he informed someone at the house that the railing was incomplete
and was told that someone else would finish it.
Arthur Kalis died on February 17, 2000, and no evidence shows that the Kalises
performed any additional work to complete the ramp. Indeed, several months before the
accident, Ms. Rakowski's brother-in-law, Charles Carrig, offered to reinforce the railing with
additional screws because he saw that it was bowing and insecure, but Ms. Rakowski told him
that her husband would reinforce the railing.
Documents show that defendant, Mr. Sarb, a Dearborn Heights building inspector,
conducted an inspection of the ramp and other building projects at the Kalis house on October
20, 2000. Though he had no independent recollection of the inspection, Mr. Sarb acknowledged
that he initialed and wrote "okay" on the final inspection form for the ramp. According to Mr.
Sarb and another building official, Claudette Whitehead, Dearborn Heights inspectors conduct
only visual inspections to determine whether structures meet local building code requirements.
It is undisputed that Dearborn Heights building inspectors do not conduct "destructive" testing or
stress tests to determine whether structures meet weight bearing requirements.
On November 20, 2001, Ms. Rakowski filed a complaint against her mother (Virginia
Kalis) and her father's estate, and she later added Cytacki as a defendant. Ms. Rakowski alleged
that her parents and Cytacki negligently built and maintained the ramp and railing. Ms.
Rakowski further claimed that her parents warranted that the ramp was safe, despite their
knowledge of the defective or incomplete railing. On April 28, 2003, Ms. Rakowski received an
arbitration award of $220,000, which was paid by her mother, her father's estate, and Cytacki. In
the same month, Ms. Rakowski filed this action against Mr. Sarb, asserting that he was
negligent, or grossly negligent, when he conducted the inspection of the handicap ramp.
According to Ms. Rakowski, Mr. Sarb breached a duty to ensure that the railing complied with
construction standards and the Building Officials and Code Administrators National Building
Code (the BOCA code). Also, Ms. Rakowski later alleged that Mr. Sarb should be estopped
from denying that he was an independent contractor, rather than an employee of Dearborn
Heights, so that he is not entitled to immunity under the governmental tort liability act, MCL
691.1401 et seq.
In April 2004, defendant moved for summary disposition pursuant to MCR 2.116(C)(7),
(8), and (10). Defendant argued that he did not owe Ms. Rakowski a common-law duty and that
his conduct did not proximately cause Ms. Rakowski's alleged injury. He further claimed that he
is entitled to immunity under MCL 691.1407 because he was not grossly negligent and his
conduct was not the proximate cause of Ms. Rakowski's injuries. Judge Louis F. Simmons, Jr.,
granted defendant's motion under MCR 2.116(C)(7) and (10) on July 19, 2004, and held that
defendant was an employee of Dearborn Heights and that he is immune from suit because Ms.
Rakowski could not establish that he was grossly negligent.
Thereafter, the case was reassigned to Judge Robert J. Colombo, Jr., and Judge Colombo
granted Ms. Rakowski's motion for reconsideration of Judge Simmons's decision. Defendant
later filed a second motion for summary disposition and again argued that (1) he did not owe Ms.
Rakowski a common-law duty that supported a claim for negligence, (2) any alleged breach of
duty was not the proximate cause of Ms. Rakowski's injury, (3) he was an employee of the city
-2-
of Dearborn Heights and, therefore, entitled to governmental immunity, and (4) he was not
grossly negligent. Judge Colombo denied defendant's second motion for summary disposition
and ruled that there is a question of fact whether defendant was an employee of the city of
Dearborn Heights, that defendant owed a common-law duty to Ms. Rakowski, and that there is a
question of fact whether defendant's conduct was the proximate cause of Ms. Rakowski's
injuries. However, Judge Colombo also held that no reasonable juror could find that defendant
was grossly negligent and that defendant would be entitled to summary disposition on
governmental immunity grounds if the jury were to find that he was an employee of the city of
Dearborn Heights.
III. Analysis
A. Employment Status
As a preliminary matter, the trial court incorrectly concluded that the jury must decide
whether Mr. Sarb was an employee of the city of Dearborn Heights for purposes of the
governmental tort liability act. The relevant statute, MCL 691.1407(2), grants immunity to
governmental officers and employees acting on behalf of a governmental agency engaged in the
exercise or discharge of a governmental function, provided the officer's or employee's conduct
does not amount to gross negligence that is the proximate cause of an injury or damage.
The trial court used the economic-realities test to determine Mr. Sarb's employment
status, but concluded that there remained a question of fact regarding whether Mr. Sarb was an
employee or an independent contractor when he worked as a building inspector for Dearborn
Heights. As this Court explained in Mantei v Michigan Pub School Employees Retirement Sys &
Michigan Pub School Employees Retirement Bd, 256 Mich App 64, 78-79; 663 NW2d 486
(2003):
The economic-reality test considers four basic factors: (1) control of a
worker's duties, (2) payment of wages, (3) right to hire, fire, and discipline, and
(4) performance of the duties as an integral part of the employer's business toward
the accomplishment of a common goal. Clark v United Technologies Automotive,
Inc, 459 Mich 681, 688; 594 NW2d 447 (1999); Chilingirian [v City of Fraser,
194 Mich App 65, 69; 486 NW2d 347 (1992)]; Parham v Preferred Risk Mut Ins
Co, 124 Mich App 618, 624; 335 NW2d 106 (1983). This test considers the
totality of the circumstances surrounding the work performed. Chilingirian,
supra at 69. No single factor is controlling and, indeed, the list of factors is
nonexclusive and other factors may be considered as each individual case
requires. Clark, supra at 689. Thus, the element of control, "although abandoned
as an exclusive criterion upon which the relationship can be determined, is a
factor to be considered along with payment of wages, maintenance of discipline
and the right to engage or discharge employees." McKissic v Bodine, 42 Mich
App 203, 208; 201 NW2d 333 (1972). Weight should be given to those factors
that most favorably effectuate the objectives of the statute in question. Id. at 209.
"Employee" is not defined in MCL 691.1407(2), and our case law provides that, if statutory
terms are undefined, they "must be given their plain and ordinary meanings, and it is proper to
-3-
consult a dictionary for definitions." Halloran v Bhan, 470 Mich 572, 578; 683 NW2d 129
(2004). The Random House Webster's College Dictionary (1992), defines "employee" as "a
person who has been hired to work for another."
Under either the "plain and ordinary meaning" analysis or the economic-realities test,
there is no genuine issue of material fact that defendant was an employee for purposes of MCL
691.1407(2). The undisputed facts demonstrate that defendant was hired to work for the city of
Dearborn Heights as a building inspector and, therefore, was an "employee" under the plain and
ordinary meaning of that term as used in MCL 691.1407(2).1 Furthermore, aside from the
payment of wages and benefits, defendant was treated as an employee of the city, not as an
independent contractor. Defendant worked a regular, full-time schedule of 40 hours a week, and
the city controlled his day-to-day duties, the manner in which he performed his job, and when he
completed his tasks. The city also retained the right to fire defendant without cause and
generally evaluated his performance during the time he worked for the city. Defendant's work
was also an integral part of accomplishing the city's goals.2 Accordingly, under either standard,
defendant qualified as an employee protected by MCL 691.1407(2).
B. Duty
1. Applicable Law
In Beaudrie v Henderson, 465 Mich 124, 134; 631 NW2d 308 (2001), our Supreme Court
declined to extend the public duty doctrine to protect all governmental employees from liability
for the failure to perform or the inadequate performance of a duty owed to the public. The Court
recognized that the grant of such broad, common-law immunity to all governmental employees
would be inconsistent with the governmental tort liability act, which subjects governmental
employees to liability for grossly negligent conduct that was the proximate cause of a plaintiff 's
injuries. Id. at 134, 139.
1
Defendant would also qualify as an "officer" for purposes of MCL 691.1407(2). At his
deposition, defendant testified that his title was that of "building official" or "code official," and
that he was hired to perform building inspections. According to defendant, his identification
badge identified him as a "building official," and his job was to identify violations of the
building code for the city.
2
We find no merit to plaintiffs' argument that defendant is estopped from denying that he was an
independent contractor in light of his deposition testimony. Considered in context, defendant
stated that he considered himself an independent contractor because of the way he was paid. As
previously discussed, however, the economic-realities test and the dictionary definition of
"employee" involve additional considerations. Consequently, defendant's qualified statement at
his deposition is not dispositive of his status as an employee or independent contractor for
purposes of MCL 691.1407(2).
-4-
Importantly, however, the Court in Beaudrie made clear that MCL 691.1407 "does not
create a cause of action" and that a plaintiff must first establish that the governmental employee
defendant owed a common-law duty to the plaintiff. Beaudrie, supra at 139 n 12 (emphasis in
original).3 We are further guided by the Beaudrie Court's reminder that "[t]he liability of
government employees, other than those who have allegedly failed to provide police protection,
should be determined using traditional tort principles without regard to the defendant's status as a
government employee." Id. at 134.4
3
As the Beaudrie Court fully stated:
However, we reject Justice Levin's suggestion in White [v Beasley, 453
Mich 308, 355; 552 NW2d 1 (1996)], that MCL 691.1407 "defines the duty
pursuant to which a governmental employee is subject to liability." The statute
does not create a cause of action. Plaintiffs are still required to establish a
common-law duty. [Id.]
4
We recognize that, in addition to a duty established under common law, a duty may also be
expressly created by statute. Walker v City of Flint, 213 Mich App 18, 22; 539 NW2d 535
(1995). Here, no such duty exists, and plaintiffs appear to concede this point. Dearborn Heights
hired defendant to assist the building inspector to carry out the duties imposed by the Single
State Construction Code Act, MCL 125.1501 et seq., but nothing in that act gives rise to a civil
duty to a private third party. Further, the purpose of the construction code act is not to protect
the public against harm by establishing construction standards and an inspection regime, but
merely to establish the authority of the director of the Department of Consumer and Industry
Services, now the Department of Labor and Economic Growth, to "prepare and promulgate" a
state construction code consistent with, and protective of, the "health, safety, and welfare of the
occupants and users of buildings and structures." MCL 125.1504(1) and (3)(c). Though the act
sets forth certain criminal penalties for an "agent charged with the responsibility of issuing
permits or inspecting buildings or structures" who "knowingly" violates the act or a code, or who
"knowingly" makes a false or misleading statement in a report, MCL 125.1523(1), knowledge
does not equate to gross negligence and recklessness, and the act is simply not relevant to decide
whether an inspector owes a legal duty in negligence actions. See Klanseck v Anderson Sales &
Service, Inc, 426 Mich 78, 86; 393 NW2d 356 (1986). Accordingly, we hold that the
construction code act is not intended to protect against negligent inspections. See id. at 86-87.
(continued…)
-5-
In common-law negligence cases, a duty is "'an obligation, to which the law will give
recognition and effect, to conform to a particular standard of conduct toward another.'" Antcliff v
State Employees Credit Union, 414 Mich 624, 630-31; 327 NW2d 814 (1982), quoting Prosser,
Torts (4th ed), § 53, p 324; see Prosser & Keaton, Torts (5th ed), § 53, p 356. More specifically,
a duty "concerns whether a defendant is under any legal obligation to act for the benefit of the
plaintiff." Valcaniant v Detroit Edison Co, 470 Mich 82, 86 n 4; 679 NW2d 689 (2004)
(emphasis in original).
When a court determines whether to impose a common-law duty, it considers (1) the
relationship of the parties, (2) the "foreseeability of the harm, [(3) the] degree of certainty of
injury, [(4) the] closeness of connection between the conduct and injury, [(5) the] moral blame
attached to the conduct, [(6) the] policy of preventing future harm, and, [(7)] finally, the burdens
and consequences of imposing a duty and the resulting liability for breach." Buczkowski v
McKay, 441 Mich 96, 101 n 4; 490 NW2d 330 (1992), citing Prosser & Keeton, § 53, p 359 n
24; Dyer v Trachtman, 470 Mich 45, 49; 679 NW2d 311 (2004). The inquiry is "'ultimately a
question of fairness'" involving a "'weighing of the relationship of the parties, the nature of the
risk, and the public interest in the proposed solution.'" Samson v Saginaw Professional Bldg,
Inc, 393 Mich 393, 420; 224 NW2d 843 (1975) (Levin, J., dissenting) (citation omitted), cited
with approval in Buczkowski, supra at 101 n 5.
2. Application of the Law
Ms. Rakowski alleges that defendant negligently approved the ramp even though (1) the
ramp's railings did not have the vertical balusters that are required for structures standing more
than 30 inches above the ground and (2) the handrail was secured with nails of inadequate length
when longer nails or screws should have been used. It is undisputed that Ms. Rakowski and Mr.
Sarb had no direct or indirect relationship. Ms. Rakowski was merely an invitee on the day of
the accident, which occurred more than six months after Mr. Sarb's inspection, and she neither
owned nor lived in the house at which the ramp was built. Further, Ms. Rakowski admitted at her
deposition that she and Mr. Sarb never met or talked, that she was not present when Mr. Sarb
conducted his inspection, and that she never talked to a building department representative about
the ramp. Mr. Sarb's role in conducting the inspection was also limited by the city to a visual
(…continued)
Further, in adopting the BOCA code, Dearborn Heights did not create a duty owed by its
building inspectors to third-party invitees. "[B]efore the violation of an ordinance, rule, or
regulation may be considered as bearing on the question of negligence, the court must determine
that the purpose of the ordinance was to prevent the type of injury and harm suffered." Johnson
v Bobbie's Party Store, 189 Mich App 652, 661; 473 NW2d 796 (1991). In general, "tort
liability should not be based on statutes and ordinances that are not traditionally relied on to
impose liability or do not themselves specifically expose government employees to liability."
White, supra, at 318. The BOCA code nowhere specifically exposes municipal building
inspectors to liability. Indeed, the BOCA code specifically provides for relief from personal
responsibility for any code official, or subordinate, as long as the official or subordinate acts in
"good faith and without malice . . . ." 1993 Building Officials and Code Administrators National
Building Code, § 104.6. Further, no other Dearborn Heights ordinance establishes a duty of
reasonable care on municipal inspectors.
-6-
assessment of the structure; he played no role in the construction of the ramp, nor did he
monitor or supervise the building process.
Moreover, with regard to the relationship of the parties, an invitee of a homeowner would
not reasonably expect or look to a municipal building inspector to protect the invitee from
personal injuries that occur because of substandard workmanship. The relationship is simply too
attenuated, and an invitee would more logically look to the owner of the premises, the builder,
or, in some circumstances, the manufacturer of the allegedly defective material to ensure suitable
quality of workmanship and safety. Certainly, nothing in this record suggests any relationship or
contact between the parties that would favor the imposition of a duty on Mr. Sarb for the benefit
of Ms. Rakowski.
Regarding the foreseeability of an injury to a third party, as our Supreme Court explained
in Samson, supra at 406,
the mere fact that an event may be foreseeable does not impose a duty upon the
defendant to take some kind of action accordingly. . . . [T]o require the actor to
act, some sort of relationship must exist between the actor and the other party
which the law or society views as sufficiently strong . . . .
Thus, though Mr. Sarb could arguably foresee that a third party might lean against the railing of
the structure, our inquiry necessarily takes into account Mr. Sarb's limited role in the sequence of
events at issue, his minimal responsibility for the condition, and his limited control over the risk
of harm. Further, when evaluating the comparably limited role of the municipal building
inspector and the more pervasive role of the owner or contractor, we must determine whether it
is prudent to conclude that the building inspector must foresee this type of injury to an invitee
caused by this defect.
Mr. Sarb did not conduct the inspection on behalf of Dearborn Heights as a warranty to
the homeowner. Rather, Mr. Sarb performed the limited function of visually assessing the ramp
for code compliance.5 Accordingly, Mr. Sarb did not perform destructive testing to evaluate the
style or length of the fasteners used to secure the railing and he did not conduct stress tests to
determine the weight-bearing capacity of the railing.
It is undisputed that Ms. Rakowski's injury occurred because the handrail was insecure.
Clearly, therefore, the foreseeability of harm has a closer nexus to the construction of the ramp
than to the limited, visual inspection conducted by Mr. Sarb. The quality or sufficiency of the
construction was a matter within the knowledge and control of the builder and the homeowner.
Whether Mr. Cytacki, the builder, failed to properly construct the ramp or the homeowner,
despite assurances given to Mr. Cytacki, failed to complete the structure in 1999, the risk that an
injury would occur because of faulty construction stemmed directly from and is more closely
5
Indeed, testimony established that the person who obtains the construction permit assumes, in
writing, the responsibility to ensure that the structure is built in a workmanlike manner.
-7-
related to the action or inaction of the builder or homeowner than to the conduct of Mr. Sarb.
Indeed, unlike Mr. Sarb, the builder, the homeowner, and Ms. Rakowski knew, at the time
construction stopped in 1999, that the railing was incomplete.6 Again, Mr. Sarb played no role
in choosing the building materials for the structure or in assembling the ramp. Thus, for
purposes of determining whether to impose a duty on a municipal building inspector under these
facts, it was not foreseeable that any conduct by Mr. Sarb would result in Ms. Rakowski's
accident six months after the inspection, or that Ms. Rakowski, a third-party invitee, would rely
on Mr. Sarb's conduct in light of her specific knowledge regarding the construction of the railing
and assurances she said she received from her parents.
Similar considerations compel the conclusion that there is, at best, a tenuous relationship
between Mr. Sarb's conduct and Ms. Rakowski's injury. The "degree of certainty" of injury here
is directly related to the builder's work product or the homeowner's failure to complete or
maintain the structure. See Buczkowski, supra at 101 n 4. Again, the municipal building
inspector's role is so limited and so directed to minimal building code enforcement, for the
benefit of the entire community, that there is a minimal causal nexus to justify the imposition of
a duty. Moreover, the specific conduct of a municipal building inspector is passive, not active,
and there is very little, if any, moral blame that attaches to the building inspector's conduct
because of the inspector's limited job function.
Moreover, because the primary risk of harm arose directly and most substantially from
the construction of the ramp, a matter squarely within the responsibility and control of the
builder and homeowner, policy considerations favor a finding that Mr. Sarb owed no duty to Ms.
Rakowski. The record reflects that, as a Dearborn Heights building inspector, Mr. Sarb
conducted 30 inspections a day, and city procedures restricted his inspections to a visual
assessment of the structure. Given his limited role, on behalf of and for the benefit of the city, it
would be unduly burdensome to place a duty on Mr. Sarb to discover all flaws in workmanship
and wholly impractical to require that a municipal building inspector warrant that each project is
free from construction defects.
Further, the "burdens and consequences" do not favor the imposition of a duty and, thus,
potential liability on Mr. Sarb. See id. In light of the narrow purpose and nature of the typical
municipal building inspection, it is simply unreasonable for Ms. Rakowski to cite defendant's
inspection as a warranty of the safety of the ramp or the cause of her injury. Rather, the capacity
and ability to prevent injuries caused by inadequate or incomplete construction projects lies with
the builder and homeowner, and it is, therefore, not Mr. Sarb's duty to do so.7
6
Thus, we are not persuaded that any "moral blame" may be fairly attached to Mr. Sarb's
conduct under these circumstances. See Buczkowski, supra at 101 n 4.
7
Nothing in the record suggests that Mr. Sarb, as a city inspector, undertook a duty owed to Ms.
Rakowski by either the builder or homeowner.
-8-
Moreover, because individual governmental employees like Mr. Sarb can least afford the
imposition of litigation costs and large damage awards in personal injury cases, the imposition of
a duty on municipal building inspectors would be unfair and ineffectual. To expose a municipal
building inspector to such liability would also engender numerous adverse consequences for our
local communities. Municipalities may decline to employ building inspectors or may insist on a
waiver of liability to avoid exposure for personal injuries occurring on residential premises.
Further, municipalities that choose to defend and indemnify inspectors would then bear the cost
of damage awards, which would undoubtedly be passed on to residents in the form of increased
taxes, prohibitively high permit fees, or, perhaps, further delays in obtaining numerous necessary
approvals from municipal inspectors. Indeed, litigation costs and the cost to comply with a duty
to warrant the safety and workmanship of all construction projects might very well result in a
municipality's decision to discontinue building inspections altogether.8
For these reasons, and because the inspection statute and ordinance at issue do not
impose a duty on Mr. Sarb, the trial court erred when it denied Mr. Sarb's motion for summary
disposition on this issue.
C. Gross Negligence and Proximate Cause
Though we need not decide the issue, in her cross-appeal Ms. Rakowski erroneously
argues that the trial court also erred when it ruled that no reasonable juror could conclude that
Mr. Sarb was grossly negligent.9 Again, Ms. Rakowski alleged that the ramp's railing failed to
support her weight because it was constructed with short nails, rather than screws, and because
balusters were not properly placed to reinforce the handrail, which stood more than 30 inches
above the ground. Accordingly, the conduct for which Ms. Rakowski seeks damages is Mr.
Sarb's alleged failure to determine the length or style of the railing fasteners and his failure to
properly measure the ramp to determine if it was high enough to require balusters.
8
See Wilson v Municipality of Anchorage, 669 P2d 569, 573 (Alas, 1983) (second ellipsis
added), quoting Adams v State, 555 P2d 235, 248 (Alas, 1976) (Connor, J, dissenting):
"To assure total compliance [with fire, health and safety laws] would
require an enormous expenditure of time and money by the government . . . .
"To impose liability upon governmental entities for failure to adequately
enforce fire and safety codes may discourage some of them, particularly the
smaller communities . . . , from adopting such codes at all, as the financial
commitment necessary to assure complete enforcement—and the ability to
respond in damages—could well be crippling in its effects."
9
"Pursuant to MCL 691.1407(2), a governmental employee may be liable for grossly negligent
conduct if that conduct is 'the proximate cause of the injury or damage.' MCL 691.1407(2)(c)."
Curtis v City of Flint, 253 Mich App 555, 562-563; 655 NW2d 791 (2002).
-9-
We agree with the trial court that, at best, Ms. Rakowski's evidence establishes only
ordinary negligence, not gross negligence. No reasonable juror could conclude that Mr. Sarb's
conduct was "so reckless as to demonstrate a substantial lack of concern for whether an injury
results," as defined at the time by the governmental immunity statute, MCL 691.1407(2)(c).10 It
is well-settled that "evidence of ordinary negligence does not create a material question of fact
concerning gross negligence." Maiden v Rozwood, 461 Mich 109, 122-123; 597 NW2d 817
(1999). Accordingly, the trial court correctly ruled that Mr. Sarb is entitled to summary
disposition on this issue.
Moreover, were we to conclude that Ms. Rakowski established gross negligence, the trial
court erred when it concluded that Mr. Sarb's conduct proximately caused Ms. Rakowski's
injury. Specifically, the trial court held that the injury occurred because Ms. Rakowski would
not have used the ramp unless Mr. Sarb inspected and approved it. Contrary to the trial court's
apparent position, to be the proximate cause of an injury, the alleged gross negligence must be
"the one most immediate, efficient, and direct cause of the injury or damage . . . ." Robinson v
Detroit, 462 Mich 439, 462; 613 NW2d 307 (2000). Here, it is beyond dispute that the loose
handrail caused Ms. Rakowski to fall and sustain injuries. Regardless of whether, six months
before her injury, Mr. Sarb correctly approved the ramp during his inspection, his conduct could
not be "the one most immediate, efficient, and direct cause" of Ms. Rakowski's injury.
Therefore, the trial court should have granted summary disposition to Mr. Sarb.
IV. Conclusion
For the reasons set forth above, we conclude that Mr. Sarb owed no duty to Ms.
Rakowski. We further hold that reasonable minds could not differ regarding whether Mr. Sarb
was a qualified governmental actor under Michigan's governmental tort liability act, whether Mr.
Sarb's conduct amounted to gross negligence, or whether Mr. Sarb's conduct was the proximate
cause of Ms. Rakowski's injuries. The trial court's denial of Mr. Sarb's motion for summary
disposition is reversed.
/s/ Henry William Saad
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
10
The definition is now found at MCL 691.1407(7)(a).
-10-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
