In these consolidated appeals, plaintiff, Gary Singerman, appeals as of right from two separate orders of the trial court granting summary disposition for defendant Municipal Service Bureau, Inc., and for defendants Tamara Lynn McKinstry and Cindy Blayle. We reverse both orders of summary disposition, and remand for further proceedings.
Plaintiff was injured when he was struck in the eye by a deflected hockey puck as he was tending goal at the Westland Sports Arena. Plaintiff went to the arena as a coach to observe players from the Eastern Michigan University Hockey Club. Plaintiff was filling in for an absent goalie and was not wearing proper safety equipment at the time he was injured. There was evidence that the area at the end of the ice rink was slightly dark because
Defendants moved for summary disposition, and the trial court entered orders granting the motions on December 2, 1992. The court ruled that plaintiff's claims were barred by the open and obvious danger doctrine pursuant to Riddle v McLouth Steel Products Corp, 440 Mich. 85; 485 N.W.2d 676 (1992). Plaintiff now appeals as of right from the trial court's dismissal of his claims.
The first issue that we must address concerns whether the trial court properly applied the open and obvious danger doctrine set forth in Riddle, supra, to the facts of this case. We find that the trial court overlooked the possibility that defendants could be held liable for foreseeable harm despite the open and obvious nature of the danger.
The Supreme Court in Riddle discussed two potential theories of liability: failure to warn where a danger is not open and obvious, and failure to exercise due care where injury is foreseeable despite the open and obvious nature of the
Having determined that the trial court erred in its conclusion that defendants owed no duty to plaintiff, we must examine next the duty of care. In the context of a hockey game, the duty of care to maintain adequate lighting in an arena may take on new meaning. Whereas a condition of dim lighting in an arena may not be particularly dangerous by itself, the danger becomes more pronounced when the arena is used as a hockey rink. In this situation, the duty of reasonable care may include warning players about the dangers of failing to wear proper equipment and enforcing the arena's own safety rules. To the extent that the allegedly inadequate lighting may have contributed to the danger, the duty of care may include taking all reasonable steps to rectify the dangerous conditions.
Importantly, the open and obvious danger doctrine of Riddle, supra, concerns defects or dangers in the premises itself, not changing conditions or hazards (such as a hockey game) that are brought about in part by the activity of the invitee(s). Defendants cannot avail themselves of the open and obvious danger doctrine as a defense under these circumstances where the harm may have been foreseeable, and some of the hazardous conditions
Here, we address the question whether there was a genuine issue of material fact concerning the foreseeability of the harm. We find that there was.
In this case there was evidence that defendants should have foreseen the harm to plaintiff despite the fact that the condition of the lighting constituted an open and obvious danger. There was deposition testimony indicating that defendants were aware that hockey is a potentially dangerous sport, especially with inexperienced players, such as the ones playing with plaintiff. In fact, one of the safety rules of the rink was that helmets must be worn by all hockey players. Although defendants Blayle and McKinstry may not have seen plaintiff on the ice without a helmet until it was too late, they should anticipate that patrons will not follow the safety rules and that the patrons are in danger if the lighting is not adequately maintained. We find that the trial court erred in granting summary disposition for defendants because there were disputed issues of material fact concerning the foreseeability of the injury. MCR 2.116(C)(10).
Next, we must address the issue whether the Municipal Service Bureau is protected by governmental immunity, MCL 691.1407; MSA 3.996(107). While we find the bureau to be a governmental entity, we find that it is not entitled to immunity
MCL 691.1407(1); MSA 3.996(107)(1) grants "all governmental agencies" immunity from tort liability where the "agency is engaged in the exercise or discharge of a governmental function." MCL 691.1401(d); MSA 3.996(101)(d) defines "governmental agencies" as including "political subdivisions." MCL 691.1401(b); MSA 3.996(101)(b) defines "political subdivision" as
On the basis of the foregoing definitions we conclude that the Municipal Service Bureau is a political subdivision that may avail itself of governmental immunity. The record indicates that the Municipal Service Bureau was created by the City of Westland to maintain various public recreational facilities.
However, in this case, because of the defective lighting, we find that the bureau may be liable under the public building exception to governmental immunity. MCL 691.1406; MSA 3.996(106). Here, there was evidence of a problem with the lighting over a portion of the rink. Further, there was evidence that defendants were aware of the problem with the lighting for some time. As a series of permanent fixtures, the lighting should be considered an integral part of the public building. Carmack v Macomb Co Community College, 199 Mich.App. 544, 547; 502 N.W.2d 746 (1993). The question whether the building is dangerous must be determined in light of the use or purpose that the building serves. Griffin v Detroit, 178 Mich.App. 302, 306; 443 N.W.2d 406 (1989). In this case, considering the use of the building as an ice arena, defendants' failure to maintain the lighting raises a genuine issue concerning the safety of the building. Accordingly, we conclude that plaintiff's claims should not have been dismissed.
Plaintiff argues that defendant Municipal Service Bureau may be liable under a vicarious liability theory. However, this issue has been abandoned because plaintiff failed to argue the issue in his brief. Froling v Carpenter, 203 Mich.App. 368, 373; 512 N.W.2d 6 (1994). In any event, this issue is moot because of our conclusion regarding the previous issue that plaintiff has a direct claim against the bureau under the public building exception to governmental immunity. See Ross, supra at 621.
Next, plaintiff argues that the individual defendants,
In a separate argument, plaintiff asserts that the individual defendants are not public officials who would be protected by the public duty doctrine. The public duty doctrine was summarized by this Court in Jones v Wilcox, 190 Mich.App. 564, 568; 476 N.W.2d 473 (1991), as follows:
We find the public duty doctrine inapplicable to the individual defendants in this case because their duties did not extend to the public at large. Rather, their duties extended to the small number of patrons who visited the arena. Further, the leading cases applying the public duty doctrine typically involve higher level public officials or public safety personnel. Jones, supra (involving a fire marshal, fire fighters, and building inspectors); Hobrla v Glass, 143 Mich.App. 616; 372 N.W.2d 630 (1985) (involving the Secretary of State); Chivas v Koehler, 182 Mich.App. 467; 453 N.W.2d 264 (1990) (involving prison guards); Markis v Grosse Pointe Park, 180 Mich.App. 545; 448 N.W.2d 352 (1989) (involving police officers). In this case, the individual defendants, as the supervisors of the arena, had a closer relationship to the patrons, and had a
We agree with plaintiff's position that the question of intervening causes should be determined by the trier of fact because reasonable minds could differ regarding the proximate cause of plaintiff's injury. Domako v Rowe, 184 Mich.App. 137, 143; 457 N.W.2d 107 (1990), aff'd 438 Mich. 347; 475 N.W.2d 30 (1991); Richards v Pierce, 162 Mich.App. 308, 316-317; 412 N.W.2d 725 (1987). The same reasoning applies to the issue whether the inadequate lighting or defendants' failure to enforce the safety rules was a proximate cause of plaintiff's injuries. These are all issues for the factfinder to resolve. Schutte v Celotex Corp, 196 Mich.App. 135, 138; 492 N.W.2d 773 (1992).
Next, plaintiff argues that he is not required to show that defendants had notice of the dangerous condition that was caused by defendants. It is true that plaintiff need not show actual notice. However, plaintiff is required to show at least that defendants had constructive notice of the dangerous condition caused by the inadequate lighting. MCL 691.1406; MSA 3.996(106); Freedman v Oak Park, 170 Mich.App. 349; 427 N.W.2d 557 (1988). In this case, plaintiff may be able to establish constructive notice by the length of time that the lighting was defective, id.; Kroll v Katz, 374 Mich. 364, 371-372; 132 N.W.2d 27 (1965), or by some other means. This is an issue that should be developed further at trial.
We agree with plaintiff that there is a genuine issue of material fact concerning whether defendant McKinstry was negligent — either with respect to the lighting or the enforcement of the safety regulations. MCR 2.116(C)(10); Radtke v Everett, 442 Mich. 368, 374; 501 N.W.2d 155 (1993).
Plaintiff's nuisance claim is without merit because defendant Municipal Service Bureau is generally protected by governmental immunity as a political subdivision. Li v Feldt (After Second Remand), 439 Mich. 457, 466-474; 487 N.W.2d 127 (1992). However, plaintiff's claim against defendant bureau may proceed under the public building exception to immunity, as discussed in issue IV, supra.
Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.