Hendricks v. Southfield Public Schools , 178 Mich. App. 672 ( 1989 )

178 Mich. App. 672 (1989) 444 N.W.2d 143

HENDRICKS
v.
SOUTHFIELD PUBLIC SCHOOLS

Docket No. 104017.

Michigan Court of Appeals.

Decided March 22, 1989.

Roth & Dean, P.C. (by Leslie M. Kohn), for plaintiffs.

Law Offices of Natinsky & Jaffa (by Jonathan M. Jaffa), for defendant.

Before: WEAVER, C.J., and SULLIVAN and R.A. BENSON,^[*] JJ.

PER CURIAM.

Plaintiffs appeal as of right from a circuit court order granting defendant's motion for summary disposition pursuant to MCR 2.116(C)(8) on the basis that plaintiffs failed to plead facts in avoidance of governmental immunity. We affirm.

On appeal, plaintiffs argue that the public building exception to governmental immunity applies to their case because piles of snow located on a school playground constitute a dangerous condition of a public building. MCL 691.1406; MSA 3.996(106). We disagree.

A motion for summary disposition pursuant to MCR 2.116(C)(8) tests the legal sufficiency of the pleadings. The court must accept as true all well-pled factual allegations plus any conclusions to be reasonably drawn therefrom and may grant the motion only when the claim is so clearly unenforceable as a matter of law that no factual development could justify a right to recovery. Scameheorn v Bucks, 167 Mich. App. 302, 306; 421 NW2d 918 (1988), lv den 430 Mich. 886 (1988).

The public building exception to governmental immunity has been interpreted to include items permanently affixed to a public building. Pichette v Manistique Public Schools, 403 Mich. 268, 275, 282; 269 NW2d 143 (1978); Tilford v Wayne Co General Hosp, 403 Mich. 293, 300; 269 NW2d 153 (1978). See also Gibson v Grand Rapids, 162 Mich. App. 100, 104; 412 NW2d 658 (1987), lv den 429 Mich. 901 (1988); Velmer v Baraga Area Schools, 430 Mich. 385; 424 NW2d 770 (1988); Lee v Highland Park School Dist, 118 Mich. App. 305; 324 NW2d 632 (1982), lv den 422 Mich. 902 (1985). Our Supreme Court has indicated that the public building exception will not be so expansively interpreted as to extend to all public places. See Jolly v City of St Clair, 428 Mich. 860; 400 NW2d 597 (1987), rev'g 153 Mich. App. 824; 396 NW2d 552 (1986).

We do not believe that the Legislature intended its immunity exception to include the temporary condition of snow piles. Accepting as true all of plaintiffs' factual allegations contained in their pleadings and the conclusions to be reasonably drawn therefrom, plaintiffs' claim was so clearly unenforceable as a matter of law that no factual development could justify plaintiffs' right to recovery. Hence the trial court did not err in granting summary disposition on the basis that the piles of snow did not fall within the public building exception to the defense of governmental immunity. Scameheorn, supra.

We are also unpersuaded by plaintiffs' argument that the mounds of snow should be deemed an intentional nuisance by which the claim of governmental immunity could be overcome.

To establish a claim of intentional nuisance against a governmental agency, a plaintiff must show that there is a condition which is a nuisance and that the agency intended to create that condition. Scameheorn, supra at 308. See Hadfield v Oakland Co Drain Comm'r, 430 Mich. 139, 192-195; 422 NW2d 205 (1988), rev'g Veeneman v Michigan, 143 Mich. App. 694; 373 NW2d 193 (1985); Id. at 195-199, rev'g Landry v Detroit, 143 Mich. App. 16; 371 NW2d 466 (1985).

Because the injury of which plaintiffs complain resulted from the school's failure to remove the mound of snow from the playground after clearing the parking lot, we conclude that the trial court in this case did not err in granting summary disposition to defendant on the basis that plaintiffs' well-pled facts involve circumstances showing the school's failure to act in removing the piles of snow.

Further, an intentionally created nuisance requires proof that the party creating or continuing the nuisance knew or must have known that harm to a plaintiff was substantially certain to follow. Scameheorn, supra at 309; Rosario v Lansing, 403 Mich. 124, 143, n 2; 268 NW2d 230 (1978). Here, it cannot be said that harm was substantially certain to follow from the presence of the amount of snow at issue.

Accepting as true all of plaintiffs' factual allegations contained in the pleadings and conclusions to be reasonably drawn therefrom, plaintiffs could not have proved an intentionally created nuisance. Accordingly, the trial court did not err in granting summary disposition on the basis that the piles of snow did not constitute an intentional nuisance. Scameheorn, supra.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.