RAKOWSKI v. SARB, 269 Mich. App. 619

Saad, EJ. I. NATURE OF THE CASE Flaintiffs’ personal injury claim against defendant raises an issue of first impression under Michigan law: Whether a municipal building inspector owes a duty of care under common-law negligence to protect a homeowner’s invitee from personal injury sustained by the invitee because of an allegedly defective structure inspected and approved by the building inspector. Neither state statute nor the building code adopted by the city imposes such a duty on a building inspector.

Further, our application of the factors historically used to determine whether a common-law duty exists compels the conclusion that the municipal building inspector, Michael Sarb, did not owe a duty to plaintiff Marjorie L. Rakowski. Because Ms. Rakowski failed to establish that Mr. Sarb owed a duty under Michigan negligence law, the trial court should have granted

summary disposition to Mr. Sarb. II. PACTS AND PROCEDURAL HISTORY On May 10, 2001, Ms. Rakowski sustained injuries when the railing gave way on a ramp for the handicapped at the home of her parents, Arthur and Virginia Kalis. The record reflects that Ms. Rakowski’s father, Arthur Kalis, applied for the building permit for the ramp from the city of Dearborn Heights and that the city issued the permit on August 13, 1999. Contrary to a statement in the permit application that Arthur Kalis would construct the ramp, Kalis hired Len Cytacki, doing business as Alenda Carpentry, to build the ramp in August 1999.

However, before Cytacki completed the handrail, Cytacki was fired or quit the job. According to Cytacki, before he left the Kalis home, he informed someone at the house that the railing was incomplete and was told that someone else would finish it. Arthur Kalis died on February 17, 2000, and no evidence shows that the Kalises performed any additional work to complete the ramp. Indeed, several months before the accident, Ms. Rakowski’s brother-in-law, Charles Carrig, offered to reinforce the railing with additional screws because he saw that it was bowing and insecure, but Ms.

Rakowski told him that her husband would reinforce the railing. Documents show that defendant, Mr. Sarb, a Dear-born Heights building inspector, conducted an inspection of the ramp and other building projects at the Kalis house on October 20, 2000. Though he had no independent recollection of the inspection, Mr. Sarb acknowledged that he initialed and wrote “okay” on the final inspection form for the ramp. According to Mr. Sarb and another building official, Claudette Whitehead, Dear-born Heights inspectors conduct only visual inspections to determine whether structures meet local building code requirements.

It is undisputed that Dearborn Heights building inspectors do not conduct “destructive” testing or stress tests to determine whether structures meet weight bearing requirements. On November 20, 2001, Ms. Rakowski filed a complaint against her mother (Virginia Kalis) and her father’s estate, and she later added Cytacki as a defendant. Ms. Rakowski alleged that her parents and Cytacki negligently built and maintained the ramp and railing. Ms. Rakowski further claimed that her parents warranted that the ramp was safe, despite their knowledge of the defective or incomplete railing. On April 28, 2003, Ms.

Rakowski received an arbitration award of $220,000, which was paid by her mother, her father’s estate, and Cytacki. In the same month, Ms. Rakowski filed this action against Mr. Sarb, asserting that he was negligent, or grossly negligent, when he conducted the inspection of the handicap ramp. According to Ms. Rakowski, Mr. Sarb breached a duty to ensure that the railing complied with construction standards and the Building Officials and Code Administrators National Building Code (the BOCA code). Also, Ms. Rakowski later alleged that Mr.

Sarb should be estopped from denying that he was an independent contractor, rather than an employee of Dearborn Heights, so that he is not entitled to immunity under the governmental tort liability act, MCL 691.1401 et seq. In April 2004, defendant moved for

summary disposition pursuant to MCR 2.116(C)(7), (8), and (10). Defendant argued that he did not owe Ms. Rakowski a common-law duty and that his conduct did not proximately cause Ms. Rakowski’s alleged injury. He further claimed that he is entitled to immunity under MCL 691.1407 because he was not grossly negligent and his conduct was not the proximate cause of Ms. Rakowski’s injuries. Judge Louis F. Simmons, Jr., granted defendant’s motion under MCR 2.116(C)(7) and (10) on July 19, 2004, and held that defendant was an employee of Dearborn Heights and that he is immune from suit because Ms.

Rakowski could not establish that he was grossly negligent. Thereafter, the case was reassigned to Judge Robert J. Colombo, Jr., and Judge Colombo granted Ms. Rakowski’s motion for reconsideration of Judge Simmons’s decision. Defendant later filed a second motion for

summary disposition and again argued that (1) he did not owe Ms. Rakowski a common-law duty that supported a claim for negligence, (2) any alleged breach of duty was not the proximate cause of Ms. Rakowski’s injury, (3) he was an employee of the city of Dearborn Heights and, therefore, entitled to governmental immunity, and (4) he was not grossly negligent. Judge Colombo denied defendant’s second motion for

summary disposition and ruled that there is a question of fact whether defendant was an employee of the city of Dearborn Heights, that defendant owed a common-law duty to Ms. Rakowski, and that there is a question of fact whether defendant’s conduct was the proximate cause of Ms. Rakowski’s injuries. However, Judge Colombo also held that no reasonable juror could find that defendant was grossly negligent and that defendant would be entitled to

summary disposition on governmental immunity grounds if the jury were to find that he was an employee of the city of Dearborn Heights. III. ANALYSIS A. EMPLOYMENT STATUS As a preliminary matter, the trial court incorrectly concluded that the jury must decide whether Mr. Sarb was an employee of the city of Dearborn Heights for purposes of the governmental tort liability act.

The relevant statute, MCL 691.1407(2), grants immunity to governmental officers and employees acting on behalf of a governmental agency engaged in the exercise or discharge of a governmental function, provided the officer’s or employee’s conduct does not amount to gross negligence that is the proximate cause of an injury or damage. The trial court used the economic-realities test to determine Mr. Sarb’s employment status, but concluded that there remained a question of fact regarding whether Mr. Sarb was an employee or an independent contractor when he worked as a building inspector for Dearborn Heights.

As this Court explained in Mantei v Michigan Pub School Employees Retirement Sys & Michigan Pub School Employees Retirement Bd, 256 Mich App 64, 78-79; 663 NW2d 486 (2003): The economic-reality test considers four basic factors: (1) control of a worker’s duties, (2) payment of wages, (3) right to hire, fire, and discipline, and (4) performance of the duties as an integral part of the employer’s business toward the accomplishment of a common goal.

Clark v United Technologies Automotive, Inc, 459 Mich 681, 688; 594 NW2d 447 (1999); Chilingirian [v City of Fraser, 194 Mich App 65, 69; 486 NW2d 347 (1992)]; Parham v Preferred Risk Mut Ins Co, 124 Mich App 618, 624; 335 NW2d 106 (1983). This test considers the totality of the circumstances surrounding the work performed. Chilingirian, supra at 69. No single factor is controlling and, indeed, the list of factors is nonexclusive and other factors may be considered as each individual case requires. Clark, supra at 689.

Thus, the element of control, “although abandoned as an exclusive criterion upon which the relationship can .be determined, is a factor to be considered along with payment of wages, maintenance of discipline and the right to engage or discharge employees.” McKissic v Bodine, 42 Mich App 203, 208; 201 NW2d 333 (1972). Weight should be given to those factors that most favorably effectuate the objectives of the statute in question.

Id. at 209. “Employee” is not defined in MCL 691.1407(2), and our case law provides that, if statutory terms are undefined, they “must be given their plain and ordinary meanings, and it is proper to consult a dictionary for

definitions.” Halloran v Bhan, 470 Mich 572, 578; 683 NW2d 129 (2004). The Random House Webster’s College Dictionary (1992), defines “employee” as “a person who has been hired to work for another.” Under either the “plain and ordinary meaning” analysis or the economic-realities test, there is no genuine issue of material fact that defendant was an employee for purposes of MCL 691.1407(2).

The undisputed facts demonstrate that defendant was hired to work for the city of Dearborn Heights as a building inspector and, therefore, was an “employee” under the plain and ordinary meaning of that term as used in MCL 691.1407(2). Furthermore, aside from the payment of wages and benefits, defendant was treated as an employee of the city, not as an independent contractor. Defendant worked a regular, full-time

schedule of 40 hours a week, and the city controlled his day-to-day duties, the manner in which he performed his job, and when he completed his tasks. The city also retained the right to fire defendant without cause and generally evaluated his performance during the time he worked for the city. Defendant’s work was also an integral part of accomplishing the city’s goals. Accordingly, under either standard, defendant qualified as an employee protected by MCL 691.1407(2). B. DUTY 1.

APPLICABLE LAW In Beaudrie v Henderson, 465 Mich 124, 134; 631 NW2d 308 (2001), our Supreme Court declined to extend the public duty doctrine to protect all governmental employees from liability for the failure to perform or the inadequate performance of a duty owed to the public. The Court recognized that the grant of such broad, common-law immunity to all governmental employees would be inconsistent with the governmental tort liability act, which subjects governmental employees to liability for grossly negligent conduct that was the proximate cause of a plaintiffs injuries. Id. at 134, 139.

Importantly, however, the Court in Beaudrie made clear that MCL 691.1407 “does not create a cause of action” and that a plaintiff must first establish that the governmental employee defendant owed a common-law duty to the plaintiff. Beaudrie, supra at 139 n 12 (emphasis in original). We are further guided by the Beaudrie Court’s reminder that “[t]he liability of government employees, other than those who have allegedly failed to provide police protection, should be determined using traditional tort principles without regard to the defendant’s status as a government employee.” Id. at 134.

In common-law negligence cases, a duty is “ ‘an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.’ ” Antcliff v State Employees Credit Union, 414 Mich 624, 630-31; 327 NW2d 814 (1982), quoting Prosser, Torts (4th ed), § 53, p 324; see Prosser & Keaton, Torts (5th ed), § 53, p 356. More specifically, a duty “concerns whether a defendant is under any legal obligation to act for the benefit of the plaintiff.” Valcaniant v Detroit Edison Co, 470 Mich 82, 86 n 4; 679 NW2d 689 (2004) (emphasis in original).

When a court determines whether to impose a common-law duty, it considers (1) the relationship of the parties, (2) the “foreseeability of the harm, [(3) the] degree of certainty of injury, [(4) the] closeness of connection between the conduct and injury, [(5) the] moral blame attached to the conduct, [(6) the] policy of preventing future harm, and, [(7)] finally, the burdens and consequences of imposing a duty and the resulting liability for breach.” Buczkowski v McKay, 441 Mich 96, 101 n 4; 490 NW2d 330 (1992), citing Prosser & Keeton, § 53, p 359 n 24; Dyer v Trachtman, 470 Mich 45, 49; 679 NW2d 311 (2004).

The inquiry is “ ‘ultimately a question of fairness’ ” involving a “ ‘weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.’ ” Samson v Saginaw Professional Bldg, Inc, 393 Mich 393, 420; 224 NW2d 843 (1975) (LEVIN, J., dissenting) (citation omitted), cited with approval in Buczkowski, supra at 101 n 5. 2. APPLICATION OF THE LAW Ms.

Rakowski alleges that defendant negligently approved the ramp even though (1) the ramp’s railings did not have the vertical balusters that are required for structures standing more than 30 inches above the ground and (2) the handrail was secured with nails of inadequate length when longer nails or screws should have been used. It is undisputed that Ms. Rakowski and Mr. Sarb had no direct or indirect relationship. Ms. Rakowski was merely an invitee on the day of the accident, which occurred more than six months after Mr. Sarb’s inspection, and she neither owned nor lived in the house at which the ramp was built.

Further, Ms. Rakowski admitted at her deposition that she and Mr. Sarb never met or talked, that she was not present when Mr. Sarb conducted his inspection, and that she never talked to a building department representative about the ramp. Mr. Sarb’s role in conducting the inspection was also limited by the city to a visual assessment of the structure; he played no role in the construction of the ramp, nor did he monitor or supervise the building process.

Moreover, with regard to the relationship of the parties, an invitee of a homeowner would not reasonably expect or rely on a municipal building inspector to protect the invitee from personal injuries that occur because of substandard workmanship. The relationship is simply too attenuated, and an invitee would more logically rely on the owner of the premises, the builder, or, in some circumstances, the manufacturer of the allegedly defective material to ensure suitable quality of workmanship and safety.

Certainly, nothing in this record suggests any relationship or contact between the parties that would favor the imposition of a duty on Mr. Sarb for the benefit of Ms. Rakowski. Regarding the foreseeability of an injury to a third party, as our Supreme Court explained in Samson, supra at 406, the mere fact that an event may be foreseeable does not impose a duty upon the defendant to take some kind of action accordingly.... [T]o require the actor to act, some sort of relationship must exist between the actor and the other party which the law or society views as sufficiently strong.... Thus, though Mr.

Sarb could arguably foresee that a third party might lean against the railing of the structure, our inquiry necessarily takes into account Mr. Sarb’s limited role in the sequence of events at issue, his minimal responsibility for the condition, and his limited control over the risk of harm. Further, when evaluating the comparably limited role of the municipal building inspector and the more pervasive role of the owner or contractor, we must determine whether it is prudent to conclude that the building inspector must foresee this type of injury to an invitee caused by this defect. Mr.

Sarb did not conduct the inspection on behalf of Dearborn Heights as a warranty to the homeowner. Rather, Mr. Sarb performed the limited function of visually assessing the ramp for code compliance. Accordingly, Mr. Sarb did not perform destructive testing to evaluate the style or length of the fasteners used to secure the railing and he did not conduct stress tests to determine the weight-bearing capacity of the railing. It is undisputed that Ms. Rakowski’s injury occurred because the handrail was nonsecure.

Clearly, therefore, the foreseeability of harm has a closer nexus to the construction of the ramp than to the limited, visual inspection conducted by Mr. Sarb. The quality or sufficiency of the construction was a matter within the knowledge and control of the builder and the homeowner. Whether Mr. Cytacki, the builder, failed to properly construct the ramp or the homeowner, despite assurances given to Mr.

Cytacki, failed to complete the structure in 1999, the risk that an injury would occur because of faulty construction stemmed directly from and is more closely related to the action or inaction of the builder or homeowner than to the conduct of Mr. Sarb. Indeed, unlike Mr. Sarb, the builder, the homeowner, and Ms. Rakowski knew, at the time construction stopped in 1999, that the railing was incomplete. Again, Mr. Sarb played no role in choosing the building materials for the structure or in assembling the ramp.

Thus, for purposes of determining whether to impose a duty on a municipal building inspector under these facts, it was not foreseeable that any conduct by Mr. Sarb would result in Ms. Rakowski’s accident six months after the inspection, or that Ms. Rakowski, a third-party invitee, would rely on Mr. Sarb’s conduct in light of her specific knowledge regarding the construction of the railing and assurances she said she received from her parents. Similar considerations compel the conclusion that there is, at best, a tenuous relationship between Mr. Sarb’s conduct and Ms. Rakowski’s injury.

The “degree of certainty” of injury here is directly related to the builder’s work product or the homeowner’s failure to complete or maintain the structure. See Buczkowski, supra at 101 n 4. Again, the municipal building inspector’s role is so limited and so directed to minimal building code enforcement, for the benefit of the entire community, that there is a minimal causal nexus to justify the imposition of a duty.

Moreover, the specific conduct of a municipal building inspector is passive, not active, and there is very little, if any, moral blame that attaches to the building inspector’s conduct because of the inspector’s limited job function. Moreover, because the primary risk of harm arose directly and most substantially from the construction of the ramp, a matter squarely within the responsibility and control of the builder and homeowner, policy considerations favor a finding that Mr. Sarb owed no duty to Ms. Rakowski. The record reflects that, as a Dear-born Heights building inspector, Mr.

Sarb conducted 30 inspections a day, and city procedures restricted his inspections to a visual assessment of the structure. Given his limited role, on behalf of and for the benefit of the city, it would be unduly burdensome to place a duty on Mr. Sarb to discover all flaws in workmanship and wholly impractical to require that a municipal building inspector warrant that each project is free from construction defects. Further, the “burdens and consequences” do not favor the imposition of a duty and, thus, potential liability on Mr. Sarb. See id.

In light of the narrow purpose and nature of the typical municipal building inspection, it is simply unreasonable for Ms. Rakowski to cite defendant’s inspection as a warranty of the safety of the ramp or the cause of her injury. Rather, the capacity and ability to prevent injuries caused by inadequate or incomplete construction projects lies with the builder and homeowner, and it is, therefore, not Mr. Sarb’s duty to do so. Moreover, because individual governmental employees like Mr.

Sarb can least afford the imposition of litigation costs and large damage awards in personal injury cases, the imposition of a duty on municipal building inspectors would be unfair and ineffectual. To expose a municipal building inspector to such liability would also engender numerous adverse consequences for our local communities. Municipalities may decline to employ building inspectors or may insist on a waiver of liability to avoid exposure for personal injuries occurring on residential premises.

Further, municipalities that choose to defend and indemnify inspectors would then bear the cost of damage awards, which would undoubtedly be passed on to residents in the form of increased taxes, prohibitively high permit fees, or, perhaps, further delays in obtaining numerous necessary approvals from municipal inspectors. Indeed, litigation costs and the cost to comply with a duty to warrant the safety and workmanship of all construction projects might very well result in a municipality’s decision to discontinue building inspections altogether.

For these reasons, and because the inspection statute and ordinance at issue do not impose a duty on Mr. Sarb, the trial court erred when it denied Mr. Sarb’s motion for

summary disposition on this issue. C. GROSS NEGLIGENCE AND PROXIMATE CAUSE Though we need not decide the issue, in her cross-appeal Ms. Rakowski erroneously argues that the trial court also erred when it ruled that no reasonable juror could conclude that Mr. Sarb was grossly negligent. Again, Ms. Rakowski alleged that the ramp’s railing failed to support her weight because it was constructed with short nails, rather than screws, and because balusters were not properly placed to reinforce the handrail, which stood more than 30 inches above the ground. Accordingly, the conduct for which Ms.

Rakowski seeks damages is Mr. Sarb’s alleged failure to determine the length or style of the railing fasteners and his failure to properly measure the ramp to determine if it was high enough to require balusters. We agree with the trial court that, at best, Ms. Rakowski’s evidence establishes only ordinary negligence, not gross negligence. No reasonable juror could conclude that Mr. Sarb’s conduct was “so reckless as to demonstrate a substantial lack of concern for whether an injury results,” as defined at the time by the governmental immunity statute, MCL 691.1407(2)(c).

It is well-settled that “evidence of ordinary negligence does not create a material question of fact concerning gross negligence.” Maiden v Rozwood, 461 Mich 109, 122-123; 597 NW2d 817 (1999). Accordingly, the trial court correctly ruled that Mr. Sarb is entitled to

summary disposition on this issue. Moreover, were we to conclude that Ms. Rakowski established gross negligence, the trial court erred when it concluded that Mr. Sarb’s conduct proximately caused Ms. Rakowski’s injury. Specifically, the trial court held that the injury occurred because Ms. Rakowski would not have used the ramp unless Mr. Sarb inspected and approved it.

Contrary to the trial court’s apparent position, to be the proximate cause of an injury, the alleged gross negligence must be “the one most immediate, efficient, and direct cause of the injury or damage . . ..” Robinson v Detroit, 462 Mich 439, 462; 613 NW2d 307 (2000). Here, it is beyond dispute that the loose handrail caused Ms. Rakowski to fall and sustain injuries. Regardless of whether, six months before her injury, Mr. Sarb correctly approved the ramp during his inspection, his conduct could not be “the one most immediate, efficient, and direct cause” of Ms. Rakowski’s injury.

Therefore, the trial court should have granted

summary disposition to Mr. Sarb. IV CONCLUSION For the reasons set forth above, we conclude that Mr. Sarb owed no duty to Ms. Rakowski. We further hold that reasonable minds could not differ regarding whether Mr. Sarb was a qualified governmental actor under Michigan’s governmental tort liability act, whether Mr. Sarb’s conduct amounted to gross negligence, or whether Mr. Sarb’s conduct was the proximate cause of Ms. Rakowski’s injuries. The trial court’s denial of Mr. Sarb’s motion for

summary disposition is reversed. Defendant would also qualify as an “officer” for purposes of MCL 691.1407(2). At his deposition, defendant testified that his title was that of “building official” or “code official,” and that he was hired to perform building inspections. According to defendant, his identification badge identified him as a “building official,” and his job was to identify violations of the building code for the city. We find no merit to plaintiffs’ argument that defendant is estopped from denying that he was an independent contractor in light of his deposition testimony.

Considered in context, defendant stated that he considered himself an independent contractor because of the way he was paid. As previously discussed, however, the economic-realities test and the dictionary definition of “employee” involve additional considerations. Consequently, defendant’s qualified statement at his deposition is not dispositive of his status as an employee or independent contractor for purposes of MCL 691.1407(2).

As the Beaudrie Court fully stated: However, we reject Justice Levin’s suggestion in White [v Beasley, 453 Mich 308, 355; 552 NW2d 1 (1996)], that MCL 691.1407 “defines the duty pursuant to which a governmental employee is subject to liability.” The statute does not create a cause of action. Plaintiffs are still required to establish a common-law duty, [id.] We recognize that, in addition to a duty established under common law, a duty may also be expressly created by statute. Walker v City of Flint, 213 Mich App 18, 22; 539 NW2d 535 (1995). Here, no such duty exists, and plaintiffs appear to concede this point.

Dearborn Heights hired defendant to assist the building inspector to carry out the duties imposed by the Single State Construction Code Act, MCL 125.1501 et seq., but nothing in that act gives rise to a civil duty to a private third party.

Further, the purpose of the construction code act is not to protect the public against harm by establishing construction standards and an inspection regime, but merely to establish the authority of the director of the Department of Consumer and Industry Services, now the Department of Labor and Economic Growth, to “prepare and promulgate” a state construction code consistent with, and protective of, the “health, safety, and welfare of the occupants and users of buildings and structures.” MCL 125.1504(1) and (3)(c).

Though the act sets forth certain criminal penalties for an “agent charged with the responsibility of issuing permits or inspecting buildings or structures” who “knowingly” violates the act or a code, or who “knowingly” makes a false or misleading statement in a report, MCL 125.1523(1), knowledge does not equate with gross negligence and recklessness, and the act is simply not relevant to decide whether an inspector owes a legal duty in negligence actions. See Klanseck v Anderson Sales & Service, Inc, 426 Mich 78, 86; 393 NW2d 356 (1986).

Accordingly, we hold that the construction code act is not intended to protect against negligent inspections. See id. at 86-87. Further, in adopting the BOCA code, Dearborn Heights did not create a duty owed by its building inspectors to third-party invitees. “[Bjefore the violation of an ordinance, rule, or regulation may be considered as bearing on the question of negligence, the court must determine that the purpose of the ordinance was to prevent the type of injury and harm suffered.” Johnson v Bobbie’s Party Store, 189 Mich App 652, 661; 473 NW2d 796 (1991).

In general, “tort liability should not be based on statutes and ordinances that are not traditionally relied on to impose liability or do not themselves specifically expose government employees to liability.” White, supra, at 318. The BOCA code nowhere specifically exposes municipal building inspectors to liability. Indeed, the BOCA code specifically provides for relief from personal responsibility for any code official, or subordinate, as long as the official or subordinate acts in “good faith and without malice .. ..” 1993 Building Officials and Code Administrators National Building Code, § 104.6.

Further, no other Dearborn Heights ordinance establishes a duty of reasonable care on municipal inspectors. Indeed, testimony established that the person who obtains the construction permit assumes, in writing, the responsibility to ensure that the structure is built in a workmanlike maimer. Thus, we are not persuaded that any “moral blame” may be fairly attached to Mr. Sarb’s conduct under these circumstances. See Buczkowski, supra at 101 n 4. Nothing in the record suggests that Mr. Sarb, as a city inspector, undertook a duty owed to Ms. Rakowski by either the builder or homeowner.

See Wilson v Municipality of Anchorage, 669 P2d 569, 573 (Alas, 1983) (second ellipsis added), quoting Adams v State, 555 P2d 235, 248 (Alas, 1976) (Connor, J, dissenting): “To assure total compliance [with fire, health and safety laws] would require an enormous expenditure of time and money by the government.... “To impose liability upon governmental entities for failure to adequately enforce fire and safety codes may discourage some of them, particularly the smaller communities.. . , from adopting such codes at all, as the financial commitment necessary to assure complete enforcement — and the ability to respond in damages— could well be crippling in its effects.” “Pursuant to MCL 691.1407(2), a governmental employee may be hable for grossly negligent conduct if that conduct is ‘the proximate cause of the injury or damage.’ MCL 691.1407(2)(c).” Curtis v City of Flint, 253 Mich App 555, 562-563; 655 NW2d 791 (2002).

The definition is now found at MCL 691.1407(7)(a).