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Bellinger v. Kram

Court of Appeals of Michigan

May 25, 2017

ELIZABETH BELLINGER, by Next Friend, JAMIE BELLINGER, Plaintiff-Appellee,

         Genesee Circuit Court LC No. 14-103877-NO

          Before: M. J. Kelly, P.J., and Beckering and Shapiro, JJ.

          SHAPIRO, J.

         Defendant, Julie Kram, appeals as of right from the order of the trial court denying her motion for summary disposition under MCR 2.116(C)(7) (governmental immunity).[1] We affirm.


         Plaintiff, Elizabeth Bellinger, brought this lawsuit after she sustained severe injuries to her hand while operating a table saw during a woodshop class that defendant taught at Lakeville High School. Plaintiff alleged that her injuries were caused by defendant's actions in removing a blade guard from the table saw, encouraging students to operate the table saw without the blade guard, and on the day of her injury, specifically directing plaintiff to make a cut on the table saw that she had never before attempted without any supervision and without the presence of the blade guard.[2] According to plaintiff's deposition testimony, defendant actively encouraged students not to use the blade guard telling them that using it was not consistent with how table saw operation is done in "real life" and that the blade guard is only put on the table saw when the insurance company came for inspections.[3] Defendant did not dispute that she was the person who removed the blade guard and that she instructed students that safe operation of the table saw did not require the guard, only the use of a push stick and a push block.[4] She stated her view that use of the blade guard presented its own safety problems because it had the potential to lull users into a false sense of security and to potentially obstruct their vision of the work area. Defendant denied making statements about only putting the guard on when insurance companies conducted inspections.

         According to plaintiff, on the day of the accident, defendant asked her to help another student by making an angled cut on the table saw. At the time, the blade guard was not on the saw, and defendant acknowledged that she would have been the last one to remove it. Plaintiff had never made an angled cut before, and she stated that she initially declined defendant's request and only agreed after what she described as defendant's repeated requests. Even after plaintiff initially failed to properly make the cut, defendant simply made an adjustment to the saw, told plaintiff to try again, and then left plaintiff unsupervised. During plaintiff's second attempt, the table saw experienced what the parties refer to as a "kickback." While the cause of kickbacks generally and specifically the cause of the kickback that occurred on the day of plaintiff's injury are matters of dispute, both parties generally agree that a kickback is an incident that occurs when the work-piece is propelled back towards the table saw operator, often at very high speeds, causing the potential for injury both due to the possibility of the user's hand slipping from the work-piece and contacting the saw blade, and due to the possibility of the user being struck by the propelled work-piece. In this case, the kickback resulted in plaintiff's hand coming into contact with the saw blade resulting in significant injury.

         Defendant maintains that the kickback occurred because plaintiff removed one of her hands from either the push block or the push stick. In support of this position, defendant points to the written statement and accompanying affidavit of the student for whom plaintiff was performing the cut. In that statement, the student described the kickback as beginning after plaintiff "reached around to grab the [work-piece]." However, plaintiff's own deposition testimony disputes this account. When asked whether she was pushing both down and forward on the work-piece at the inception of the kickback, plaintiff responded in the affirmative. Plaintiff also presented the expert affidavit of a professional engineer who averred that no one, whether a novice or an expert, should operate a table saw without a blade guard. The expert explained in the affidavit that kickbacks can occur regardless of an operator's level of care, even with the use of a push block and a push stick, and that the only sure way to prevent kickbacks is by using a blade guard.

         Following the accident, defendant filled out two accident reports. In the first, which was a narrative of events leading up to the accident, she wrote, "I checked the fence and blade height and angle. All was as it should be. . . . [Plaintiff] was to put the guard on before she made the cut." The second report required defendant to respond to various questions about whether proper safety equipment and procedures were being used and whether the accident was the result of any safety violations, and in that report defendant consistently wrote, "Student had not put guard back on machine after set-up." Also in that report, in response to a question about whether plaintiff had been previously informed of a safety rule that "should have prevented this accident" defendant wrote, "Yes, student was informed all students are taught to never use machine without all the guards in place."


         We review the trial court's denial of defendant's motion for summary disposition de novo. Maiden v Rozwood, 461 Mich. 109, 118; 597 N.W.2d 817 (1999). In reviewing a motion for summary disposition under MCR 2.116(C)(7), a court must review the facts in the complaint to determine if they "justify a finding that recovery in tort is not barred by governmental immunity." Harrison v Dir of Dep't of Corrections, 194 Mich.App. 446, 449; 487 N.W.2d 799 (1992). All evidence that is submitted by the parties must be construed in favor of the nonmoving party to determine whether there exists a genuine issue of material fact. Skinner v Square D Co, 445 Mich. 153, 161-162; 516 N.W.2d 475 (1994). "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v GMC, 469 Mich. 177, 183; 665 N.W.2d 468 (2003).

         III. ANALYSIS

         MCL 691.1407(2) provides qualified government immunity from tort liability to government employees acting within the scope of their authority and engaging in the exercise of a government function provided the employee's "conduct does not amount to gross negligence that is the proximate cause of the injury or damage." Therefore, in order to have survived defendant's motion for summary disposition, plaintiff was required to show that ...

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