VERMILYA
v.
DUNHAM
Docket No. 128987.
Michigan Court of Appeals.
Decided July 20, 1992, at 9:05 A.M.Sumpter & Perry, P.C. (by Thomas E. McDonald), for the plaintiff.
Braun, Kendrick, Finkbeiner, Schafer & Murphy (by Frank M. Quinn and J. Edmund Frost), for the defendant.
Before: DOCTOROFF, C.J., and MICHAEL J. KELLY and R.B. BURNS,[*] JJ.
DOCTOROFF, C.J.
Plaintiff appeals as of right the trial court's order granting summary disposition and awarding costs to defendant. Plaintiff argues that the trial court erred in ruling that defendant's conduct did not constitute gross negligence, that the award of costs was improper because the filing of the complaint was justified, and that the amount of costs awarded was excessive. We affirm the grant of summary disposition, reverse the award of costs, and remand for redetermination of costs.
On October 4, 1988, plaintiff's eleven-year-old son was injured when a steel soccer goal was *81 pushed over on top of him at school. In November 1988, plaintiff filed an action against the school.[1] In May 1989, plaintiff moved to amend the complaint to add the students who tipped the goal over and the school's principal, Dale Dunham, as defendants. The trial court allowed the students to be added as defendants, but denied the motion to add Dunham.
Plaintiff filed this action against defendant Dunham on January 26, 1990. On February 26, 1990, defendant moved under MCR 2.116(C)(7) and (10) for summary disposition based on individual governmental immunity under MCL 691.1407(2); MSA 3.996(107)(2). The trial court granted defendant's motion, ruling that no reasonable juror could conclude that defendant "was so reckless as to demonstrate a substantial lack of concern."
Plaintiff first argues that the trial court erred in ruling that defendant's conduct did not constitute gross negligence.
A motion for summary disposition may be brought under MCR 2.116(C)(7) on the ground that a claim is barred by governmental immunity. The motion may be supported or opposed by affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(5); Paterek v 6600 Limited, 186 Mich. App. 445, 447; 465 NW2d 342 (1990). In deciding a motion for summary disposition under MCR 2.116(C)(7), the court reviews the plaintiff's complaint to see whether facts have been pleaded justifying a finding that recovery in a tort cause of action is not barred by governmental immunity. Pawlak v Redox Corp, 182 Mich. App. 758, 763; 453 NW2d 304 (1990).
MCL 691.1407; MSA 3.996(107) provides in relevant part:
*82 (2) Except as otherwise provided in this section, and without regard to the discretionary or ministerial nature of the conduct in question, each .. . employee of a governmental agency ... shall be immune from tort liability for injuries to persons or damages to property caused by the ... employee . .. while in the course of employment or service ... if all of the following are met:
(a) The ... employee ... is acting or reasonably believes he or she is acting within the scope of his or her authority.
(b) The governmental agency is engaged in the exercise or discharge of a governmental function.
(c) The ... employee's ... conduct does not amount to gross negligence that is the proximate cause of the injury or damage. As used in this subdivision, "gross negligence" means conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.
The first two elements are not at issue here. Plaintiff, relying on Tallman v Markstrom, 180 Mich. App. 141; 446 NW2d 618 (1989), argues that whether defendant's conduct amounted to gross negligence as defined by the statute is a question for the jury. In Tallman, this Court reversed a grant of summary disposition under MCR 2.116(C) (7) to the defendant, who taught a woodworking class during which Nicholas Tallman suffered injury while operating a table saw. The plaintiff, next friend of Nicholas, claimed the defendant was negligent in permitting Nicholas' use of a table saw unequipped with guards or safety devices. This Court held:
We believe plaintiff's second amended complaint alleged sufficient conduct to support a claim of gross negligence in avoidance of governmental immunity. Generally, once a standard of conduct is established, the reasonableness of an actor's conduct under the standard is a question for the *83 factfinder, not the court. Forche v Gieseler, 174 Mich. App. 588; 436 NW2d 437 (1989); Clink v Steiner, 162 Mich. App. 551; 413 NW2d 45 (1987). The trial court therefore erred in finding plaintiff, as a matter of law, failed to plead sufficient facts in avoidance of governmental immunity. [180 Mich. App. 144.]
We reject the suggestion that Tallman precludes a grant of summary disposition in every case in which a plaintiff alleges that negligent conduct by a defendant government employee resulted in injury. The more appropriate view is that summary disposition is precluded in cases in which reasonable jurors could honestly have reached different conclusions with regard to whether the defendant's conduct amounted to gross negligence. However, if, on the basis of the evidence presented, reasonable minds could not differ, then the motion for summary disposition should be granted. Cf., Vsetula v Whitmyer, 187 Mich. App. 675, 682; 468 NW2d 53 (1991) (where reasonable minds could not differ, the trial court may decide the issue of proximate cause as a matter of law).
After reviewing the record, we agree with the trial court that the undisputed facts in this case preclude a finding that defendant's conduct amounted to gross negligence. Defendant became aware that the goals could be tipped over approximately one to two weeks before plaintiff's son was injured. He then asked his maintenance supervisor to determine how the goals could be anchored, checked with the maintenance supervisor on his progress, made announcements in school instructing the children to stay off the goals, and disciplined students for climbing the goals. The trial court properly granted defendant's motion for summary disposition.
Next, plaintiff claims that the award of costs *84 was improper. Plaintiff argues that the complaint was not frivolous.
A trial court's finding with regard to whether a claim or defense was frivolous will not be disturbed on appeal unless the finding is clearly erroneous. State Farm Fire & Casualty Co v Johnson, 187 Mich. App. 264, 268; 466 NW2d 287 (1991).
In awarding costs to defendant, the trial court stated that before this action had been filed it had denied plaintiff's motion to amend the complaint in the action against Kolb Middle School to add Dunham as a defendant because such an amendment would be futile. The trial court then stated that sanctions were warranted because, despite the trial court's earlier ruling, plaintiff filed this separate action against defendant. Upon review of the record, we conclude that the trial court was correct in finding that plaintiff knew of the lack of merit in his allegations against defendant when plaintiff's motion to amend the complaint in the action against Kolb Middle School was denied. Filing another action with essentially the same allegations was therefore frivolous.
Plaintiff also argues that the amount awarded was excessive.
MCL 600.2591; MSA 27A.2591, provides in relevant part:
(1) Upon motion of any party, if a court finds that a civil action or defense to a civil action was frivolous, the court that conducts the civil action shall award to the prevailing party the costs and fees incurred by that party in connection with the civil action by assessing the costs and fees against the nonprevailing party and their attorney.
(2) The amount of costs and fees awarded under this section shall include all reasonable costs actually incurred by the prevailing party and any costs *85 allowed by law or by court rule, including court costs and reasonable attorney fees.
The trial court awarded defendant $4,454.68 in costs and fees. The bill of costs submitted by defendant includes approximately twenty-three hours attributed to researching and drafting the motion for summary disposition. The motion and brief consist of only ten substantive pages. Considering the issue presented and defendant's argument, and noting the similarity of the introductory paragraphs of defendant's argument in this case and in the brief in support of the motion for summary disposition in the Kolb Middle School case, the amount of time expended appears excessive. Also included in the bill of costs were charges for transcripts of depositions that were taken in the action against Kolb Middle School. Defense counsel stated that he charged fifty percent of the costs of those transcripts to this case and the other fifty percent to the Kolb Middle School case. Half of the transcripts listed in defendant's bill of costs are not cited in the brief in support of defendant's motion for summary disposition. Furthermore, the statement of facts in the brief in support of defendant's motion for summary disposition in this case and in the brief in support of defendant's motion for summary disposition in the Kolb Middle School case are substantially similar. In fact, many paragraphs are identical. Therefore, although some overlap of the charges could be expected, we conclude that the trial court erred in charging plaintiff with the costs and fees incurred by defense counsel in the Kolb Middle School case, inasmuch as those costs and fees are identified in defendant's bill of costs. Therefore, we reverse the award of costs and remand for redetermination of costs and fees in accordance with MCL 600.2591; MSA 27A.2591.
*86 Defendant's request for actual and punitive damages pursuant to MCR 7.216(C) is denied.
Affirmed in part, reversed in part, and remanded for redetermination of costs and fees. We do not retain jurisdiction.
NOTES
[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
[1] The school's motion for summary disposition was granted by the trial court. Plaintiff has appealed the trial court's ruling. That appeal is Vermilya v Kolb Middle School, Docket No. 134120.