Everhart v. Board of Education of Roseville Community Schools , 108 Mich. App. 218 ( 1981 )

108 Mich. App. 218 (1981) 310 N.W.2d 338

EVERHART
v.
BOARD OF EDUCATION OF THE ROSEVILLE COMMUNITY SCHOOLS.

Docket No. 51910.

Michigan Court of Appeals.

Decided July 28, 1981.

Marston, Sachs, Nunn, Kates, Kadushin & O'Hare, P.C. (by Gregory M. Janks), for plaintiff.

Law Offices of Nazar Berry (by Joseph R. Puleo), for defendant.

Before: BASHARA, P.J., and N.J. KAUFMAN and J.L. BANKS,^[*] JJ.

BASHARA, P.J.

Plaintiff appeals the trial court's orders granting summary judgment to defendants on governmental immunity grounds, MCL 691.1407; MSA 3.996(107), and denying his motion to amend his complaint.

Danielle Everhart was a student at Patton Elementary School in the defendant Roseville Community School District. While at recess, she was struck and knocked to the paved playground by another student who was running. Danielle allegedly sustained serious injury, requiring surgical procedures now and in the future.

The trial court granted the school board's motion for summary judgment, holding that the operation of a public school is a governmental function. We agree and affirm summary judgment granted to the school district on the authority of Churilla v School Dist for City of East Detroit, 105 Mich. App. 32; 306 NW2d 381 (1981), Smith v Mimnaugh, 105 Mich. App. 209; 306 NW2d 454 (1981), and Deaner v Utica Community School Dist, 99 Mich. App. 103; 297 NW2d 625 (1980).

Summary judgment was also granted to defendants MacIntyre and Maksym, the principal and "teacher in charge", respectively. The proper standard for determining whether an employee is cloaked with governmental immunity is not well settled in Michigan. In Bush v Oscoda Area Schools, 405 Mich. 716; 275 NW2d 268 (1979), the complaint alleged that the negligence of the school board, superintendent, teacher, and principal caused an explosion in a science classroom resulting in plaintiff's decedent sustaining severe burns. The Court found applicable the defective building exception to the governmental immunity statute, MCL 691.1406; MSA 3.996(106), and reversed the trial court's order granting summary judgment for defendant school board.

More pertinently, the opinion, written by Justice LEVIN and joined by Justices KAVANAGH and FITZGERALD, held that the complaint also alleged a valid cause of action against the individual employees. No reasoning was offered.

The remaining four justices filed separate opinions. Justice MOODY dissented on the issue of the individual's liability and would have held that the activities were discretionary functions that are the essence of governing which fall within the ambit of the governmental immunity statute. Chief Justice COLEMAN concurred in that portion of Justice MOODY'S opinion.

Justice WILLIAMS filed a concurring opinion in which he stated that governmental immunity should be granted as to individuals performing a governmental function unless the action is ultra vires.

Finally, Justice RYAN dissented from the Court's opinion holding the defective building exception applicable. He did not specifically comment on the issue of employee liability. However, he held that no cause of action existed, thereby implying that governmental immunity barred a claim against the individual defendants.

In summary, three justices held that the complaint stated a cause of action against the individual employees, one justice would have held that it did not, two justices would have held that the employees were engaged in a discretionary governmental function and were immune from liability for ordinary negligence, and one justice would have held that only ultra vires activities are not protected by governmental immunity.

Case law prior to Bush was also in a state of flux on the issue of individual liability of governmental employees. However, our review of the law leads us to conclude that the prevalent and correct standard is that stated by Justice WILLIAMS in Bush: Employee actions performed within the scope of a governmental function are cloaked with governmental immunity. See Galli v Kirkeby, 398 Mich. 527, 543, 544; 248 NW2d 149 (1976), and Cook v Bennett, 94 Mich. App. 93; 288 NW2d 609 (1979) (BASHARA, J., partial dissent).

The complaint alleges that the principal and teacher were negligent in the performance of their work functions. Specifically, it was alleged that the principal, MacIntyre, was negligent in the hiring of school ground supervisors and teachers and in the supervision of those employees. The teacher, Maksym, was allegedly remiss in not controlling the children while they were running on the playground.

The allegations clearly claim that the individuals were negligent in the performance of their discretionary governmental duties. No ultra vires acts are alleged. Consequently, under the test enunciated by Justice MOODY or that suggested by Justice WILLIAMS in Bush, these defendants are protected by the governmental immunity statute. Summary judgment in favor of MacIntyre and Maksym is affirmed.

Plaintiff also alleges error in the trial court's grant of summary judgment as to the allegation of nuisance. Plaintiff alleged that defendants intentionally and/or negligently created a nuisance by failing to hire and supervise competent personnel, instruct students on proper conduct, and warn students of the danger. Although the term "intentional" is employed in the complaint, it is clear that the specific allegations, at most, would establish a negligent nuisance in fact. Hence, the claim was properly dismissed. See Rosario v City of Lansing, 403 Mich. 124; 268 NW2d 230 (1978), and Gerzeski v Dep't of State Highways, 403 Mich. 149; 268 NW2d 525 (1978).

Next, plaintiff challenges the trial court's ruling denying his motion to amend the complaint to allege the playground was structurally defective. This claim would not be barred by the governmental immunity statute as an allegation of defective buildings, including playground equipment, is an exception to the immunity statute. MCL 691.1406; MSA 3.996(106), Bush, supra, Pichette v Manistique Public Schools, 403 Mich. 268; 269 NW2d 143 (1978), Monfils v City of Sterling Heights, 84 Mich. App. 330; 269 NW2d 588 (1978).

The trial court considered the motion to amend the complaint after its opinion granting summary judgment on the original complaint had been issued but before the order had been entered. The court ruled that the motion to amend could not be granted unless plaintiff was in possession of information which he did not have at the time the original complaint was filed.

We agree with plaintiff's assertion that the trial court used an improper standard in denying the motion. A request to amend the complaint should be granted freely where there is no showing of undue delay, bad faith, or dilatory motive. Ben P Fyke & Sons v Gunter Co, 390 Mich. 649; 213 NW2d 134 (1973). Mere lateness in moving to amend is not a sufficient reason to deny the motion absent unfair prejudice to the opposing party. Rubino v City of Sterling Heights, 94 Mich. App. 494; 290 NW2d 43 (1979).

We find no such prejudice resulting to defendant school board in allowing plaintiff to amend his complaint, even after an opinion had been issued holding that the original counts were dismissed. Because the school board did not object to a failure to join all claims at pretrial or by motion, any claim arising out of the same transaction not included in the original complaint was not barred by the summary judgment. GCR 1963, 203.1. See Rogers v Colonial Federal Savings & Loan Ass'n of Grosse Pointe Woods, 405 Mich. 607; 275 NW2d 499 (1979). No parties had been dismissed from the action when the motion was considered. Consequently, we hold that the trial court abused its discretion in denying the motion to amend the complaint.

Finally, plaintiff asserts that his motion to amend the complaint to add as parties defendant the two playground supervisors was improperly denied. We disagree. The allegations, if true, would establish that the supervisors were negligent while acting in the scope of their employment and, thus, immune from liability under the governmental immunity statute.

Affirmed in part; reversed in part. Remanded for further proceedings on plaintiff's allegation of defective premises.

Costs to abide the outcome.

NOTES

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