APRIL JONES V CRESTWOOD SCHOOL DISTRICT
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STATE OF MICHIGAN
COURT OF APPEALS
APRIL JONES,
UNPUBLISHED
November 16, 2004
Plaintiff-Appellee,
v
CRESTWOOD SCHOOL DISTRICT,
CRESTWOOD BOARD OF EDUCATION, JILL
DIAMOND, and BILL STEWART,
No. 249593
Wayne Circuit Court
LC No. 02-219576-NH
Defendants-Appellants.
Before: Zahra, P.J., and White and Talbot, JJ.
PER CURIAM.
Defendants Crestwood School District (Crestwood), Jill Diamond, and Bill Stewart
appeal as of right from an order denying their motion for summary disposition pursuant to MCR
2.116(C)(7). We reverse.
Plaintiff fell off the stage in the Crestwood High School auditorium during a hypnotist’s
act performed at an all night party for graduating seniors in 2000. Plaintiff sued the Crestwood
School District, the Crestwood Board of Education, and various individuals, including
defendants Diamond and Stewart, who were teachers at the school that sponsored the event.
Defendants sought summary disposition based on governmental immunity. The circuit court
granted the motion as to the various individual defendants with the exception of Diamond and
Stewart; determined that as to Diamond and Stewart, there were questions of fact regarding
whether they were simultaneously serving a private entity (the Class of 2000); and held that there
were questions of fact regarding plaintiff’s public building defect claim. On appeal, defendants
assert that the circuit court erred in failing to grant summary disposition on the ground of
governmental immunity.
A trial court properly grants summary disposition pursuant to MCR 2.116(C)(7) when a
claim is barred by immunity granted by law. Fane v Detroit Library Comm, 465 Mich 68, 74;
631 NW2d 678 (2001). In order to survive a motion asserting governmental immunity, a
plaintiff must allege facts justifying the application of an exception to this doctrine. Id.
MCL 691.1407(1) grants immunity from tort liability to agencies in “exercising or
discharging governmental functions.” Weaver v Detroit, 252 Mich App 239, 243; 651 NW2d
482 (2002). Courts must construe the term "governmental function" broadly, but the statutory
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exceptions to the doctrine of governmental immunity, “including the public building exception,
are to be narrowly construed.” Kerbersky v Northern Michigan University, 458 Mich 525, 529;
582 NW2d 828 (1998).
In order for a claim to fall within the public building exception, a plaintiff must establish
the following:
(1) a governmental agency is involved, (2) the public building in question was
open for use by members of the public, (3) a dangerous or defective condition of
the public building itself exists, (4) the governmental agency had actual or
constructive knowledge of the alleged defect, and (5) the governmental agency
failed to remedy the alleged defective condition after a reasonable period or failed
to take action reasonably necessary to protect the public against the condition
after a reasonable period. [Kerbersky, supra, 529.]
Whether a particular room is dangerous or defective must be determined in light of the
uses or activities for which it is specifically assigned. De Sanchez v Michigan, 467 Mich 231,
237; 651 NW2d 59 (2002). The purpose of the public building exception is to “promote the
maintenance of safe public buildings, not safety in public buildings.” Id., 238. Because of this,
“where proper supervision would have offset any shortcomings in the configuration of the room,
the public building exception does not apply.” Id., citations omitted.
In Hickey v Zezulka (On Resubmission), 439 Mich 408, 415-416; 487 NW2d 106,
amended on denial of rehearing 440 Mich 1203 (1992), a prisoner in a Michigan State University
holding cell committed suicide by hanging himself on a metal bracket attaching a heater to the
wall of the cell. The Supreme Court found that the cell in question “was specifically intended
and assigned for temporary detention.” Id., 425-426. Although it may have been negligent to
leave a suicidal defendant in the cell, this did not “convert the heating unit and metal brackets in
question into a dangerous and defective condition given the normal uses and purposes for which
the cell was designed.” Id., 426-427.
In the instant case, the circuit court found that the auditorium had the intended use and
purpose as a site for students to stage parties, and that there was a question of fact regarding
whether the auditorium was defective as designed and built because it lacked sufficient means of
preventing students from falling off the stage. However, the purpose of the auditorium was to
provide a forum to present performances involving students. Although it may have been
negligent to allow a student to fall off the stage, such negligence does not make the auditorium
defective. Hickey, supra, 439 Mich 426-427. Because she asserts that her injury arose due to
lack of supervision, plaintiff’s claim relates to safety in, rather than the safety of, the building in
question. Proper supervision would have offset any shortcomings in the configuration of the
auditorium and the public building exception does not apply. De Sanchez, supra, 467 Mich 238.
Defendants Diamond and Stewart contend that the circuit court erred in denying them
summary disposition under MCR 2.116(C)(7) on the grounds that a question of fact existed as to
whether they were acting as agents for both the school district and a private entity, the Class of
2000. When reviewing a motion for summary disposition under this rule, courts must consider
the pleadings as well as any affidavits, depositions, admissions, or documentary evidence filed or
submitted by the parties. Kerbersky, supra, 529.
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Under MCL 691.1407(2), employees of government agencies are immune from tort
liability for injuries to persons caused by them during the course of their employment and while
acting on behalf of the agency if:
(a) the [employee] is acting or reasonably believes he or she is acting within the
scope of his or her authority.
(b) the governmental agency is engaged in the exercise or discharge of a
governmental function.
(c) the [employee's] conduct does not amount to gross negligence. [Vargo v
Sauer, 457 Mich 49, 52, n 1; 576 NW2d 656 (1998).]
The grant of immunity applies equally to volunteers working on behalf of government agencies.
MCL 691.1407(2); Alex v Wildfong, 460 Mich 10, 20; 594 NW2d 469 (1999).
In Vargo, supra, 70-71, the defendant doctor had staff privileges and regularly treated
patients at St. Lawrence Hospital, a non-governmental entity. But he also worked as a medical
professor for Michigan State University, a governmental agency entitled to sovereign immunity.
Id., 64-66. The defendant moved for summary disposition pursuant to MCR 2.116(C)(7) on the
grounds that he was providing consultative services through the university when treating the
plaintiff. Id., 70. In reviewing this motion, our Supreme Court stated, “where there is a disputed
question of agency, any evidence, either direct or inferential, which tends to establish an agency
relationship creates a question of fact for the jury to determine.” Id., 71. The Court found that,
notwithstanding the defendant’s performance of a governmental function, a question of fact
existed with regard to whether he was simultaneously operating as an agent of the private
hospital, and remanded the case for trial. Id., 72.
In the instant case, it is undisputed that Crestwood employed Diamond and Stewart as
teachers at the time of the graduation party. Plaintiff contends that deposition testimony and
documentary evidence, including the application for use of the auditorium, which was signed by
defendant Diamond, demonstrated that there were genuine issues of material fact regarding
whether Diamond and Stewart were also acting as agents for a non-governmental principal.
Defendants assert that they were not dual agents because there was no separate entity known as
the “Class of 2000” for which to be an agent.
We conclude that the court erred in denying summary disposition based on the dual
agency theory. Although there was testimony that the parents of the Class of 2000 organized the
event, that the parents were separate from the school, and that Diamond signed the application in
behalf of the parent organizers so that the students could use the auditorium, it does not follow
that Diamond and Stewart were acting as agents of a non-governmental principal. First, there is
no evidence that the Class of 2000 was anything other than a loose association of parents.
Second, Diamond and Stewart were at all times acting in their capacity as class sponsors. Each
incoming class is assigned one or two teachers as class sponsors. Sponsors act as liaisons
between the students and parents and the school, and help facilitate class activities. The sponsors
remain with the class from their entry as freshmen through graduation, and are paid a stipend for
being a class sponsor. It is undisputed that Diamond and Stewart were acting in their capacity as
class sponsors. Neither had a child in the Class of 2000. Vargo, supra, is inapplicable here
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where acting as liaisons and assisting the parents were assigned tasks of class sponsors, Diamond
and Stewart were at all times acting as employees of a governmental agency and in the course of
their employment, and their was no private, non-governmental function being simultaneously
performed. Vargo, supra at 67-70.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Brian K. Zahra
/s/ Helene N. White
/s/ Michael J. Talbot
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