IRA GORDON V JIM LIPPENS CONSTRUCTION INC
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STATE OF MICHIGAN
COURT OF APPEALS
IRA GORDON and YOLANDA GORDON,
UNPUBLISHED
November 30, 2010
Plaintiffs-Appellees,
v
JIM LIPPENS CONSTRUCTION, INC. and JIM
LIPPENS,
No. 293084
Berrien Circuit Court
LC No. 2006-003082-CK
Defendants-Appellees,
and
CHIKAMING TOWNSHIP,
Defendant,
and
HOWARD GAUL,
Defendant-Appellant.
Before: O’CONNELL, P.J., and SERVITTO and SHAPIRO, JJ.
SHAPIRO, J. (dissenting).
I respectfully dissent as I believe there are questions of fact for the jury as to gross
negligence and as to which of the two defendants’ actions constituted the proximate cause.
Having reviewed the record, I do not agree with the majority that the trial court’s conclusions
were erroneous. To the contrary, the trial court provided a thorough and accurate review of the
law governing these questions and its conclusion was consistent with that law.
Rather than attempting to reformulate Judge Butzbaugh’s well-reasoned analysis, I adopt
the following text from his opinion:
Duty
“[T]he question whether the defendant owes an actionable legal duty to
the plaintiff is one of law which the court decides after assessing the competing
policy considerations for and against recognizing the asserted duty.” [Miller v
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Ford Motor Co (Certified Question from the 14th Dist Court of Appeals of Texas),
479 Mich 498, 504; 740 NW2d 206 (2007), quoting Friedman v Dozoroc, 412
Mich 1, 22; 312 NW2d 585 (1981); internal quotation marks omitted.]
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
on the resulting liability for breach. 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. [Rakowski v Sarb, 269 Mich App 619, 629630; 713 NW2d 787 (2006) (internal quotation marks, brackets,
and citations omitted).]
Complaint
In their First Amended Complaint, Plaintiffs’ pertinent allegations are as follows:
49. . . . Gaul represented to the Plaintiffs that all appropriate
inspections were being performed and that those inspections
represented that the construction was both in conformance with the
plans and specifications as well as with the applicable building
codes then in effect in Chikaming Township, Berrien County,
Michigan.
50. That to their detriment, Plaintiffs relied on the representations
made to them by . . . Gaul.
***
52. That in the performance of granted [sic] of permits and
inspections, . . . Gaul [was] grossly negligent in the performance,
duties and obligations and engaged in conduct so reckless so as to
demonstrate a substantial lack of concern for whether an injury
would result.
53. That the acts and omissions of Chikaming Township and/or
Howard Gaul are otherwise exempt from the immunity otherwise
provide[d] to townships pursuant to MCL 691[.]1407(1).
***
55. That the construction defects and construction code violations
were open and obvious to . . . Gaul at the time of the performance
of . . . his inspections. Despite the defects, all inspections were
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approved and/or no notations of obvious defects were made to the
Plaintiffs.
MCR 2.116(C)(7) and (10) Evidence Findings
For the purpose of Defendants’ motions for summary disposition under
sub-rules (C)(7) and (10), viewing the evidence, and making inferences
therefrom, in the light most favorable to Plaintiff, I find that the following
evidence would be admissible at trial.
1.
Gaul was a building inspector for Chikaming Township at the pertinent
times in this litigation. Before construction began, Gaul approved the plans to
build Plaintiff’s residence.
2.
Lippens Construction built the roofing portion of the residence in violation
of the approved plans, and in violation of the applicable building code, some of
which were:
The plans were “very specific . . . in all of the detail” for materials.
Baldwin dep, 25 [Footnote omitted]. The plans called for
laminated veneer lumber, glue laminated ridge beams, and a steel
beam. Instead, as built, nominal dimension lumber was used.
The plans and the Building Code required spacing between rafters
to be 16 inches on center. As built, the spacing between rafters
was 24 inches on center.
The Building Code required set-off between opposing rafters of no
more than 1.5 inches. As built, the off-set was 4 to 5 inches.
For wood construction, the Building Code required a minimum of
1.5 inches of material beneath the ceiling joints. As built, that was
omitted.
Where the plan and the Building Code required a bearing
connection, as built, a nail connection was used.
The plans and Building Code did not allow for a load-bearing hiprafter. As built, a load-bearing hip-rafter was used.
3.
Gaul visually inspected the site after rough framing was complete. Id., 37.
4.
The violations of the plans and building code were pervasive, open and
obvious. Id., 66.
***
5.
The violations were such that they were likely to result in roof collapse.
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***
6.
When visiting the building site, Ira Gordon met with Gaul. Ira Gordon
was informed that the purpose of the inspections was to ensure that construction
was in compliance with the plans and the Building Code. Ira Gordon relied on the
inspections for that purpose. Ira Gordon affidavit dated June 22, 2009.
7.
Had Gaul stopped construction upon his visit to the site after rough
framing was completed, Plaintiffs could have corrected the violations then. Since
Plaintiffs did not learn of the violations until after the residence was built and a
deflection in the roof occurred, the consequences from the violations are greater.
***
Discussion
Duty
To be liable for negligence, a defendant must owe a duty3 to the plaintiff.
“Only if the law recognizes a duty to act with due care arising from
the relationship of the parties does it subject the defendant to
liability for negligent conduct.” [Miller, (479 Mich at) 506 quoting
Friedman, (412 Mich at) 22.]
Duty means a legally recognized obligation to conform to a particular standard of
conduct toward another. Rakowski, [269 Mich App at] 629.
Here, Plaintiff claims:
Gaul is the township building inspector who has responsibility to
approve building plans, inspect on-going construction at the
building site, and to monitor and enforce compliance with the
approved plans and building code[.]
[T]he common law imposes a duty on Gaul not to engage in
negligent conduct in performance of his responsibilities, which
duty is enforceable by Plaintiffs, the owners of the property for
which a township building permit was issued4.
Considering the Rakowski factors, I find that, in this factual setting, the common
law does impose such a duty.
(1) The relationship of the parties
Defendant is a government official charged with approving building plans
and periodically monitoring, inspecting and approving construction, to
assure that construction is consistent with the plans and the Building Code.
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Plaintiffs are the owners of the residence for which the building permit
was granted, who will be living in the residence and subject to harm if
dangerous construction is allowed. Before issuing the permit, Gaul
reviewed and approved the plans. The plans and the building code
expressly set forth certain specifications. During construction, Gaul made
an on-site inspection after rough framing was complete. Plaintiff Ira
Gordon talked with Gaul and relied on Gaul to ensure that construction did
not violate the plans and Building Code.
3
MCL 691.1497 does not create a cause of action; to be liable, a government
employee must owe a common law duty to the plaintiff. Beaudrie v Henderson,
465 Mich 124, 139 n 12; 631 NW2d 308 (2001).
4
Brief in Support of Plaintiffs’ Response to Gaul’s Motion, Exhibit 3, Bates #
001001.
(2) The foreseeability of the harm
The foreseeability of the harm which resulted was great. See Findings 35.
(3) The degree of certainty of injury
In Chikaming Township, Michigan, with lake effect snow, roof failure
was likely to occur. See Finding 5.
(4) the closeness of connection between the conduct and injury
The roof deflection was a direct result of the failure of the inspector to
stop construction following his inspection at the rough framing stage, at
which he should have observed the violations of plan and Building Code.
Finding 7.
(5) the moral blame attached to the conduct
There is no moral blame.
(6) the policy of preventing future harm
A building inspector is utilized for the welfare of the public. If a building
inspector is not held responsible at some level, the building inspector may
suffer little consequence for poorly performing his/her job, more likely
resulting in harm to others.
(7) the burdens and consequences of imposing a duty and the resulting liability
for breach
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The duty will not be unduly burdensome. Under MCL 691.1407(2)(c), a
building inspector can be liable only if
the conduct is gross negligence (conduct so reckless as to
demonstrate a substantial lack of concern for whether an injury
results5), and
the conduct is the proximate cause of the injury (the one more
immediate, efficient, and direct cause of the injury or
damage6).
5
MCL 691.1407(7)(a)
6
Robinson v City of Detroit, 462 Mich 439, 462; 613 NW2d 307 (2000).
Gaul claims that a special relationship must exist before a duty in
negligence can be imposed on a building inspector, citing Jones v Wilcox, [190
Mich App 564, 568; 476 NW2d 473 (1991)].
“Absent a special relationship between the parties, a public official owes
a duty to the general public and not to any one individual in society.”
[Id.], citing Markis v Grosse Point Park, 180 Mich App 545, 558; 448
NW2d 352 (1989) (in which the plaintiff claimed that a police officer
had stopped a driver who was visibly intoxicated, the police officer did
not detain the driver, and 2 hours later the driver killed plaintiff’s
decedent in a motor vehicle accident. [Markis, 180 Mich App at] 549).
Jones, and unpublished cases cited by Gaul, were decided before our Supreme
Court decided Beaudrie v Henderson, 465 Mich 124, 141; 631 NW2d 308 (2001),
which limited the application of the “special relationship” analysis to alleged
failure to provide police protection. Also, see Rakowski, [269 Mich App at] 627
(“In Beaudrie . . . 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.”) Since Beaudrie, I
have found no published case which cites Jones for the “special relationship”
requirement in the context of the allegations against Gaul here. It is clear that the
relationship between the parties is important in analyzing the duty requirement,
but the pre-Beaudrie “special relationship” is not required.
Gaul has cited 2 post-Beaudrie published cases as to duty upon which he
relies. In Rakowski, the plaintiff was an invited guest at a residence who was
injured when a ramp handrailing was inadequately secured: the nails were too
short and a vertical baluster was not used. The Rakowski Court found no duty:
the plaintiff, a house guest, had no direct or indirect relationship with the building
inspector, she did not own or live in the home, she had not talked with the
building inspector about the ramp, the inspector make only a visual assessment,
and a guest to a home would not reasonably expect a municipal building inspector
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to protect the guest. Here, the violations were pervasive, open and obvious, and
the violations endangered the entire roof system Plaintiffs are the homeowners,
not guests; and Ira Gordon spoke directly with [] Gaul, the inspector.
In Cummins v Robinson Township, [283] Mich App [677, 693]; [770]
NW2d [421] (2009) cited by Defendant, the Court of Appeals held as to duty,
“Nothing in the [Single State Construction Code Act], however, suggests that a
front-line building official should face future tort liability for not approving
building plans that are the least costly to the applicant.” The case before us is not
for Gaul’s failure to approve plans.
The parties have cited several unpublished7 cases, 2 of which I will
discuss. In Sedlar v Thompson,8 the plaintiffs alleged that the building inspector
“affirmatively or by his silence indicated to [the contractors] that they need not
comply with the requirements of the . . . Building Code.” Id., [p] 6. The trial
court held that the plaintiffs were required “to show a special relationship before
the building inspector could be found to have any duty to them as owners of the
inspected building.” Id. [p] 5. The Sedlar Court held that the trial court erred.
“Under these circumstances, plaintiffs need not show a special relationship
because the alleged breach involves a duty owed directly to plaintiffs.” Id.
In Bayberry Group, Inc v Novak9, the Building Code prohibited
installation of a B-vent gas fireplace in a hotel guest sleeping room. During
installation, upon an on-site inspection but before issuance of the certificate of
occupancy, the building inspectors approved the fireplaces in guest sleeping
rooms. Guests occupied the rooms and the fireplaces emitted smoke and soot.
On final inspection, the building inspectors violated the fireplaces, and the hotel
owner sued for the cost of removing and replacing the fireplaces. The Bayberry
Court distinguished the facts from Rakowski and held that the building inspectors
owed a duty to the hotel owner at the time of the rough-in inspection. Id., [p] 14.
I find that Gaul owed a common law duty to Plaintiffs.
7
Unpublished decisions are not precedentially binding. MCR 7.215(C)(1).
8
Sedlar v Thompson, unpublished [opinion per curiam of the Court of Appeals,
issued] November 18, 2003 [Docket No. 243712].
9
Bayberry Group, Inc. v Novak, unpublished [opinion per curiam of the Court of
Appeals, issued] March 22, 2007 [Docket No. 271463].
Immunity
Gaul was a government employee acting within the scope of his authority
for a governmental agency which was discharging a governmental function10; he
is immune from liability unless his conduct was gross negligence as the proximate
cause of Plaintiffs’ damages. MCL 691.1407(2)(c). Costa v Community
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Emergency Med Serv, Inc, 475 Mich 403, 411; 716 NW2d 236 (2006). An
exception to governmental immunity is to be narrowly construed. Maskery v
Univ of Mich Bd of Regents, 468 Mich 609, 614; 664 NW2d 165 (2003).
The parties have presented for consideration the Baldwin deposition and
affidavits from Gaul, Ira Gordon and Nicolas Barnitz. If reasonable minds can
differ on whether Gaul’s conduct was gross negligence as the proximate cause, it
is a question for the jury. If reasonable minds cannot differ for either gross
negligence or the proximate cause, then the motion for summary disposition
should be granted. Jackson v Saginaw Co[], 458 Mich 141, 146; 580 NW2d 870
(1998).
10
At the hearing, Plaintiffs did not contest MCL 691.1407(2)(a) and (b).
Gross Negligence
Gross negligence is defined in MCL 691.1407(7)(a) [as “] conduct so
reckless as to demonstrate a substantial lack of concern for whether injury
results.” “[E]vidence of ordinary negligence does not create a material question
of fact concerning gross negligence. Rather, a plaintiff must adduce proof of
conduct ‘so reckless as to demonstrate a substantial lack of concern for whether
an injury results.’” Maiden [v Rozwood], 461 Mich [109,] 122[; 597 NW2d 817
(1999)] (internal citation omitted).
For purposes of this motion, I find: Gaul visually inspected Plaintiffs[’]
home after rough framing was completed; plan and Building Code violations in
the roofing system were pervasive, open and obvious; and the violations were
likely to result in roof collapse. See Findings 3, 4 and 5. That conduct is
sufficient for a reasonable juror to find gross negligence.
The Proximate Cause
Under MCL 691.1407([2])(c), the proximate cause means “the one most
immediate, efficient, and direct cause of the injury or damage.” Robinson v City
of Detroit, 462 Mich 439, 462; 613 NW2d 307 (2000).
The determination of which conduct was the proximate cause is between
the conduct of the contractor, Jim Lippens Construction, Inc, and that of Gaul.
(See Findings). Lippens Construction constructed the Plaintiffs’ residence in
pervasive violation of the plan and Building Code in:
the materials used; rafter spacing, which was overspanned by at
least 35%; and the configuration, which was built as if meant to
fail.
Gaul, the building inspector, made a visual inspection of the site after rough
framing; he failed to report any of the pervasive, open and obvious violations, the
likes of which Baldwin had not seen in his 39 years as a building inspector; for
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Gaul’s failure to report the violations, Baldwin had no explanation; if the
violations had then been reported, construction would have stopped, and the
resulting roof-failure would not have occurred.
Between those 2 choices, a reasonable juror, required to select only 1,
could select either as the one most immediate, efficient, and direct cause of the
roof system failure. It is up to the jury to decide which is the proximate cause.
Conclusion
Gaul owed a common law duty to Plaintiffs in his inspection for plan and
Building Code violations on the construction of Plaintiffs’ residence. Reasonable
jurors could differ as to whether Gaul’s conduct was gross negligence as the
proximate cause of Plaintiffs’ damages.
***
Having concluded that Judge Butzbaugh’s opinion properly resolves the
case, I would affirm.
/s/ Douglas B. Shapiro
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