The Impact of Governmental Immunity on Injuries Sustained on School Grounds

Aug 27, 2021

By John E. Tyrrell and Vikas Bowry, of Ricci Tyrrell Johnson & Grey

On June 10, 2021, the Court of Appeals of Michigan, in a per curiam decision, affirmed summary disposition in favor of Lamphere Schools and middle-school track and field coach, Stephen Murray. Nagy v. Murphy, 2021 Mich. App. LEXIS 3600. The basis for the trial court’s decision was rooted in the governmental immunity provision of Michigan Court Rule 2.116(C)(7).

By way of a brief background, on April 11, 2019, Defendant-Appellee, Stephen Murphy, was conducting an outdoor track and field practice at the Page Middle School, which is part of the Lamphere School District. A sudden change in weather conditions prompted Murphy to move the practice into one of the school’s hallways. Murphy obtained approval from both the school’s principal as well as the athletic director prior to doing so. While participating in a relay sprint exercise facilitated by Murphy, Plaintiff-Appellant Jayse Nagy struck and broke a wire-mesh window with his hand. The Page Middle School was constructed in 1957 and contained wire-mesh interior windows, the glass of which remained original at the time of the subject incident.  Nagy alleged that while participating in the relay, he tripped over a bag and attempted to stop himself with his left hand. As a result, his left hand went through the doorway window. Murphy stated that he ensured that the pathways of the hallway were clear in-between every relay race. His precautions included walking up and down the hallways on numerous occasions, ensuring that bags and students were against the wall, and positioning students at intersections to monitor for others.

Following the incident, Murphy used his sweatshirt to fashion a tourniquet and proceeded to take Nagy to the lobby of the school to await the arrival of an ambulance. Murphy acknowledged that a first aid kit consisting of bandages, gauze, athletic tape, scissors, petroleum jelly, extra mouth guards, and a small toolkit was available, but was on the other side of the hallway at the time that the incident occurred.

Approximately two months after the incident, Nagy filed suit alleging that Murphy committed gross negligence. Additionally, Nagy filed suit against Lamphere Schools based on a cause of action sounding in premises liability. Specifically, Nagy alleged that the school’s failure to replace the wire-mesh glass from 1957 constituted to a failure to repair and maintain a public building. In response, defendants moved for summary disposition on the basis that Murphy’s actions did not rise to the level of gross negligence. With respect to the school’s failure to replace the wire-mesh glass, defendants argued that Nagy had set forth a design defect claim and that the claim was meritless. Although defendants did not frame their summary disposition arguments under a specific sub-rule, the trial interpreted their arguments as falling within the ambit of governmental immunity. As a result, summary disposition was granted in favor of defendants and Nagy subsequently appealed.

On appeal, the Court first analyzed Nagy’s argument regarding Murphy’s gross negligence. The Michigan Governmental Immunity Act affords governmental employees protection from tort liability. However, the shield is lowered in situations in which the employees conduct “amount[s] to gross negligence that is the proximate cause of the injury or damage.” MCL 691.1407(2)(c). Gross negligence is further defined as “conduct so reckless as to demonstrate a substantial concern for whether an injury results.” MCL 691.1407(8)(a).  The Court elaborated on this further and characterized gross negligence as being “as though, if an objective observer watched the actor, he could conclude, reasonably, that the actor simply did not care about the safety and welfare of those in his charge.”

The Court distilled Nagy’s allegations regarding Murphy’s gross negligence into the following: Murphy failing to ensure that the running lanes were clear, failing to ensure sufficient maneuvering space for the students, failing to station an additional adult at the other end of the relay, and failing to keep a first-aid kit reasonably accessible. The Court acknowledged that by resolving all factual disputes in plaintiff’s favor there could be a genuine question of fact as to whether Murphy was negligent. However, the Court unequivocally stated that “ordinary negligence does not establish a question of fact regarding gross negligence.” Following an analysis of the aforementioned allegations set forth by plaintiff, the Court concluded that Murphy’s actions simply did not rise to the level needed to constitute gross negligence. In the eyes of the Court, Murphy took steps to ensure that the track and field practice was safe and did not demonstrate a “substantial lack of concern” for the safety of the students.

As mentioned above, Nagy also filed suit against Lamphere Schools based on a cause of action sounding in premises liability. Plaintiff’s claim was based on the “public building” exception to the absolute immunity from suit that governmental entities are afforded. MCL 691.1406 provides the following, in relevant part:

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 an action reasonably necessary to protect the public against the condition.  

Nagy argued that the subject window was a dangerous or defective condition of the public building as it should not have shattered when he made contact with it. Additionally, Nagy asserted that defendant had actual or constructive notice of the defect and that it did not remedy the defect after a reasonable period of time.  In response, defendant argued that Nagy had in essence set forth a design defect claim and that such a claim would be barred by governmental immunity. Defendant also asserted that the public building exception would not be applicable to such a claim.

In analyzing Nagy’s claim, the Court began by acknowledging that defendant had established that the subject window was part of the original construction of the school. Moreover, the Court stated that there was no record evidence that the wire-mesh windows were unsafe in schools. The Court then turned to the Supreme Court’s interpretation of the “public building” exception. In doing so, the Court highlighted the fact that liability is imposed under the exception where the dangerous or defective condition of a building was the result of a failure by the governmental agency to repair and maintain that building. The Court also noted that the Supreme Court has defined “repair” as restoration to a prior condition following damage and “maintain” as preserving a prior condition.

Based on the attendant facts and circumstances of the matter, the Court concluded that that the public building exception does not generally apply where the alleged defect existed as part of the original building. Here, the subject window was original and had not been improperly repaired or maintained. Plaintiff’s claim was therefore considered to be a design defect claim as opposed to a claim based on a failure to repair or maintain. The Court thus held that plaintiff’s claim did not fall under the umbrella of the public building exception to governmental immunity. As a result, summary judgment was affirmed in favor of defendants. 

Nagy underscores the impact under Michigan law of governmental immunity with respect to injuries that are sustained on school grounds. It is apparent from the Court’s fact-intensive analysis that plaintiffs must clear substantial hurdles before piercing the immunity that governmental entities are afforded.

John E. Tyrrell is a Member at Ricci Tyrrell Johnson & Grey who has specialized for over 25 years in the defense of sports liability litigation.

Vikas Bowry is an Associate at Ricci Tyrrell.

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