A Michigan state appeals court has dealt a legal victory to a school district and several individual defendants, who were sued by a mother after her 3-year-old son fell through the space between the bleachers at a high school football game and suffered serious injuries.
Specifically, the court affirmed the lower court’s dismissal of the claim against the school district and reversed the lower court’s ruling, which had let stand the plaintiff’s claim against the individual defendants, finding instead that the men were in fact entitled to governmental immunity.
By way of background, on October 21, 2017, Crystal Cavazos and her three-year-old son, GC, attended a football game at Collins Field, which is near Davison Middle School in Davison, Michigan. They were seated approximately 15 rows up in the bleachers, which correlated to approximately 17 feet above the ground. There were no riser planks between the seats and floorboards, which meant there were 15-inch gaps throughout the bleachers. During the game, GC slipped through an opening between the seat and the floorboard, fell to the ground, and suffered serious injuries.
Davison Community Schools (DCS), a defendant, owns and maintains the bleachers where the accident occurred. DCS’s Director of Operations is responsible for, among other things, the maintenance of the grounds of the school district. Davison High School had utilized Collins Field for its football games until a new stadium, Cardinal Stadium, was built and opened in the fall of 2005. Daniel Romzek, the Director of Operations for the school district at the time, was involved with the new stadium project. The bleachers at Cardinal Stadium were built with riser planks. After the new stadium was built, the district decided that there was no need for the wooden, extra seating capacity at Collins Field. In furtherance of the plan to remove the wooden bleachers, DCS consulted with the architect that designed Cardinal Stadium, THA Architects and Engineering (THA). Jacqueline Hoist, an architect for THA, met at Collins Field to review the project. This meeting took place in December 2005, and Hoist prepared notes in conjunction with that meeting. The project resulted with the wooden bleachers being removed. No riser planks were added to the remaining aluminum bleachers at Collins Field.
In 2008, Romzek, while still the Director of Operations for the school district, contracted with American Athletix, LLC, a co-defendant, to perform an inspection of the various bleachers in the district, including the bleachers at Collins Field. A report was issued on May 22, 2008, which covered inspections for seven different “units” of bleachers. With respect to Collins Field, the report read under “Immediate Safety Issues” that “entry stairs sinking, bent seat, no riser planks, safety rails have large gap.” Later in the report, under the “General Inspection” section, concerning all seven units of bleachers, it mentioned: “There no [sic] riser planks at Collins Field.”
Romzek did not recall making any inquiries to American Athletix regarding the report or its reference to riser planks. Romzek explained that it was his understanding that riser planks were not required on the Collins Field bleachers because there was no such code requirement at the time they were built. He also stated that he was unaware of any requirement to retrofit preexisting bleachers. There is no dispute that neither Romzek nor anyone from DCS did anything about the lack of riser planks after receiving the 2008 report.
Romzek left DCS in 2012, and Philip Thom took over as Director of Operations. Thom stated that he did not see the 2008 report until this litigation arose. In 2013, Thom asked American Athletix to perform another bleacher inspection for the district. Section 3.1 of the report, titled “Planks and Seats,” stated, in pertinent part:
“All aluminum, wood seat, foot and riser planks, and end caps were checked for cracks, breaks, or other damage. Damaged boards and missing end-caps represent a safety hazard and could cause tripping, pinching, and sliver accidents as well as weaken the structural integrity of the installation.
The U.S. Consumer Product Safety Commission suggests in its Guidelines for Retrofitting Bleachers that ‘Any opening between the components in the seating, such as between the footboard, seatboard, and riser, should prevent passage of a 4-inch sphere where the footboard is 30 inches or more above the ground and where the opening would permit a fall of 30 inches or more.’
HS Football Stadium – Good condition—No Action Needed.
MS Football Stadium – Good condition—No Action Needed.
Baseball Diamond – Damages, missing end caps – Action Needed.
Soccer Field – Damages, missing end caps – Action Needed.
Tennis Courts – Damages, missing end caps – Action Needed.”
Further, Thom testified that he asked American Athletix for a quote to fix “everything.” American Athletix later provided a quote to Thom, but it did not include any work for adding riser planks. It is undisputed that no riser planks were added to the Collins Field bleachers after the 2013 inspection, and there is no evidence of any other “professional” inspections having taken place between 2013 and the 2017 accident.
The plaintiff sued on May 13, 2019, alleging three counts: negligence against American Athletix, public-building defect against DCS, and gross negligence against Thom and Romzek.
DCS, Thom, and Romzek moved for summary disposition on the basis of governmental immunity. DCS argued that the public-building exception to governmental immunity did not apply to bleachers, because bleachers are not a “building.” Alternatively, DCS argued that the hazard at issue involved a design defect, which falls outside the purview of the duty imposed by MCL 691.1406. For their part, Thom and Romzek argued that their conduct did not rise to the level of gross negligence, and that liability could not attach to them because their conduct was not the proximate cause of GC’s injuries.
American Athletix moved for summary disposition under MCR 2.116(C)(10). American Athletix argued that the plaintiff’s claim against it sounded in premises liability and that, as a result, it could not be liable because it was not in control of the property. American Athletix alternatively argued that any negligence claim necessarily failed because it did not owe a duty to GC.
The trial court granted summary disposition in favor of American Athletix, ruling that the plaintiff’s claim against it sounded in premises liability and because American Athletix was not in control of the premises, it was entitled to summary disposition. The court further determined that to the extent that the claim sounded in ordinary negligence, the claim failed because American Athletix owed no duty to GC. The trial court also granted summary disposition in favor of DCS, finding that for purposes of the motion, it was considering the bleachers to be a public building. However, it held that DCS was nevertheless entitled to summary disposition because the gap at issue in the bleachers was a “design defect,” which is not included under the public-building exception to governmental immunity.
The trial court, however, denied the motion for summary disposition as to Romzek and Thom. The court determined that viewing the evidence in a light most favorable to the plaintiff, there was a genuine question of material fact whether their actions represented gross negligence.
The governmental tort liability act (GTLA), MCL 691.1401 et seq., states, in pertinent part:
“Each officer and employee of a governmental agency, each volunteer acting on behalf of a governmental agency, and each member of a board, council, commission, or statutorily created task force of a governmental agency is immune from tort liability for an injury to a person or damage to property caused by the officer, employee, or member while in the course of employment or service or caused by the volunteer while acting on behalf of a governmental agency if all the following are met:
(a) The officer, employee, member, or volunteer 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 officer’s, employee’s, member’s, or volunteer’s conduct does not amount to gross negligence that is the proximate cause of the injury or damage. [MCL 691.1407(2).]”
Gross negligence is defined as “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.” MCL 691.1407(8)(a). In Tarlea v Crabtree, 263 Mich App 80, 90; 687 NW2d 333 (2004). The court explained its rationale as follows:
“Simply alleging that an actor could have done more is insufficient under Michigan law, because, with the benefit of hindsight, a claim can always be made that extra precautions could have influenced the result. However, saying that a defendant could have taken additional precautions is insufficient to find ordinary negligence, much less recklessness. Even the most exacting standard of conduct, the negligence standard, does not require one to exhaust every conceivable precaution to be considered not negligent.”
The instant court noted that the “much less demanding standard of care—gross negligence—suggests, instead, almost a willful disregard of precautions or measures to attend to safety and a singular disregard for substantial risks. It is as though, if an objective observer watched the actor, he could conclude, reasonably, that the actor simply did not care about the safety or welfare of those in his charge.”
Turning specifically to Romzek, it wrote that “relying on his understanding that the bleachers were compliant with any applicable codes and his knowledge that the bleachers had not caused any injuries, it is hard to envision how a reasonable juror could conclude that Romzek’s failure to implement riser planks showed that he ‘simply did not care about the safety or welfare of those in his charge.” Tarlea, 263 Mich App at 90.’ Romzek could have acted to make the bleachers safer. However, ‘saying that a defendant could have taken additional precautions is insufficient to find ordinary negligence, much less recklessness. Even the most exacting standard of conduct, the negligence standard, does not require one to exhaust every conceivable precaution to be considered not negligent.’ Id. Therefore, although there may be a question of fact regarding whether Romzek was negligent by failing to address the gaps in the bleachers, reasonable minds could not differ as to whether his conduct was so reckless as to demonstrate a substantial lack of concern for whether an injury resulted. Thus, we conclude that the trial court erred when it denied the motion for summary disposition with respect to Romzek.”
The appeals court also sided with Thom, noting that he authorized “the quote from American Athletix to correct ‘everything.’” Therefore, he “cannot thereby be deemed to have exhibited a lack of care about the safety of others. Like Romzek, Thom was also unaware of any injuries associated with the bleachers. In short, a reasonable juror could not find that Thom’s failure to add risers demonstrated that he ‘did not care about the safety or welfare of those in his charge.’ Tarlea, 263 Mich App at 90.”
As for the appeals court’s review after the lower court’s grant of summary judgment to American Athletix, the court wrote:
“Looking at the complaint as a whole, [the] plaintiff has alleged both ordinary negligence and premises liability against American Athletix. But because there is no question of fact that American Athletix was not the possessor or otherwise had any control over the premises, summary disposition was proper with respect to the premises-liability aspects of plaintiff’s claim.”
Turning to the negligence claim against American Athletix, the appeals court focused on the following “threshold question …whether the defendant owed a duty to the plaintiff that is separate and distinct from the defendant’s contractual obligations? If no independent duty exists, no tort action based on a contract will lie. Fultz v Union-Commerce Assocs., 470 Mich. 460, 467; 683 N.W.2d 587 (2004).”
According to the court, “In this case, the trial court did not err when it granted American Athletix’s motion because that entity did not owe GC a duty that was separate and distinct from the contractual obligations it owed to DCS.”
Furthermore, “it is undisputed that American Athletix did not do anything to the bleachers themselves to make the bleacher gaps larger or otherwise more hazardous.”
Turning to DCS and the plaintiff’s argument that the public-building exception pierced the governmental immunity protections, with regard to the exception, the court concluded that governmental agencies “are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition.”
The instant court went on to summarize that “because the public-building exception excludes claims of design defects, to avoid governmental immunity, a plaintiff must establish that the defective condition was the result of the failure to repair or maintain.”
The “essence of the claim is for a design defect, not the failure to repair or maintain,” it added, in affirming the lower court.
G. C., by Next Friend Crystal Cavazos v. Davison Community Schools and American Athletix, LLC et al.; Ct. App. Mich.; No. 357805, No. 357966; 10/13/22
