Page v. Klein Tools, Inc

Kelly, J.

(dissenting). The majority classifies plaintiff’s claim as one sounding in educational malpractice. It then determines that Michigan does not recognize such a claim. Accordingly, it dismisses the appeal.

I disagree that plaintiff’s claim is for educational malpractice. Therefore, I find it unnecessary to reach the issue whether Michigan recognizes an action for educational malpractice. I would affirm the decision of the Court of Appeals and remand this case for further proceedings on plaintiff’s negligence claim.

I. background

I accept the factual and procedural background provided in the majority opinion. My focus is on the negligence count contained in plaintiff’s first amended complaint. There, plaintiff stated his complaint against defendant American Line Builders Apprenticeship Training Program (albat) as follows:

*719count m
NEGLIGENCE - AMERICAN UNE BUILDERS
41. That Defendant, American Line Builders, supplied the subject matter lineman’s system along with instructions as the methods and equipment to be used in pole climbing.
42. That Defendant, American Line Builders, owed Plaintiff, Kenneth Page, a duty to exercise reasonable care under the circumstances.
43. That Defendant, American Line Builders, owed to the Plaintiff, Kenneth Page, and [sic] was negligent in the following particulars including, but not limited to:
a. supplying equipment that had been recalled by the manufacturer
b. failing to inform Plaintiff the subject matter lineman’s system had been recalled;
c. supplying inappropriate equipment for a lineman’s system;
d. failing to provide adequate instruction and warning regarding pole climbing;
e. selecting unsafe lineman’s systems for supply to others;
f. recommending, demonstrating and supplying inappropriately designed, manufactured, assembled, and tested lineman’s systems;
g. recommending, demonstrating and supplying lineman’s systems which were not equipped with component parts in accordance with prevailing industry standards;
h. failing to provide adequate instructions and education regarding pole climbing;
* * *
44. That Defendant American Line Builders negligence was jointly and severally a proximate cause of Plaintiff’s injuries and damages.

The Court of Appeals affirmed the trial court’s decision, denying albat’s motion for summary disposition *720on plaintiffs negligence claim. It identified plaintiff’s claim as

a very precise claim against a commercial vocational training entity based upon that entity’s alleged failure to instruct him on the proper methods and techniques of maneuvering around an obstacle on a utility pole . . . with equipment sold to him by defendant. Plaintiff testified that the manner in which he attempted to negotiate the obstacle was the only method taught to him by defendant, and plaintiff’s expert testified that plaintiff should have been instructed in the use of a second pole strap, which would have prevented the accident. In short, plaintiff has made a claim sounding in simple negligence, not educational malpractice, in which plaintiff must prove duty, breach of duty, proximate cause, and damages. The public policy considerations that have caused courts to conclude that educational malpractice claims are not cognizable are absent in this case.

In plaintiff’s answer to albat’s application for leave to appeal to this Court, plaintiff explained his negligence count against albat as follows:

Michigan law recognizes that accompanying every contract is a common law duty to perform with ordinary care the thing agreed to be done, and that a negligent performance constitutes a tort as well as a breach of contract. Clark v Dalman, 379 Mich 251, 261 [150 NW2d 755] (1967). Here Plaintiff contracted with albat to provide him with the fundamentals of working as a lineman, not least of which encompassed learning how to climb and descend telephone poles safely. Defendant had a duty to use due care in performing their [sic] obligations under this contract. Defendant, under these arrangements, should not be allowed to later claim that its negligent performance of its duties, its failure to properly instruct how to climb poles or use equipment, is shielded from liability under the rubric of “educational malpractice.” Defendant’s activities here are far removed from the type of curriculum decision making and *721professional guidance that this doctrine was intended to protect.
* *
Plaintiff makes a precise claim that Defendant failed to properly instruct him in the use of equipment it sold to him. This claim is one of simple negligence ....
* * *
Our negligence claim against Defendant relates to the specific equipment Defendant sold to Plaintiff and how Plaintiff was instructed to use this equipment. . . . The information conveyed by Defendant about the use of the equipment Defendant supplied to Plaintiff was wrong, and it is that information which forms the basis of Plaintiff’s negligence complaint.

Finally, at oral argument before this Court, plaintiff stated he was

not looking at or criticizing what was or was not done with regard to training but what was or was not done in relation to the supply of equipment given the fact that at the very least indicating that the training that they provided violated the manufacturer’s instructions.

Our review of the Court of Appeals decision on a trial court’s grant of summary disposition is de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). “Because we are reviewing a summary disposition in favor of the defendant, we accept as true the plaintiffs’ allegations.” Hartford Accident & Indemnity Co v Used Car Factory, Inc, 461 Mich 210, 212, n 2; 600 NW2d 630 (1999).

*722n. ANALYSIS

I agree with the Court of Appeals that plaintiff has made a distinct claim of negligence that does not fall within the disfavored realm of educational malpractice.1 “[N]egligence is conduct involving an unreasonable risk of harm.” Schultz v Consumers Power Co, 443 Mich 445, 449; 506 NW2d 175 (1993). A prima facie claim of negligence contains a sufficient allegation that (1) the defendant was negligent, (2) the defendant owed a legal duty to the plaintiff, (3) the defendant breached that duty, (4) the plaintiff suffered harm, and (5) the defendant’s breach was the proximate cause of the plaintiff’s harm. Id. at 449.

A

In educational malpractice cases the claim is simply that the educational institution failed to provide a quality education2 or that it used improper materials *723or techniques to teach children. Nalepa v Plymouth-Canton Community School Dist, 207 Mich App 580, 594; 525 NW2d 897 (1994). The rationale for rejecting such claims rests on policy reasons not implicated here.

The majority quotes Alsides v Brown Institute, Ltd,3 to provide four policy reasons for rejecting educational malpractice cases:

(1) the lack of a satisfactory standard of care by which to evaluate an educator; (2) the inherent uncertainties about causation and the nature of damages in light of such intervening factors as a student’s attitude, motivation, temperament, past experience, and home environment; (3) the potential for a flood of litigation against schools; and (4) the possibility that such claims will “embroil the courts into overseeing the day-to-day operations of schools.”

The policy reasons cited in Alsides are not implicated here. First, there is a standard of care by which to evaluate the instruction plaintiff received. Plaintiff was taught a particular skill that utilized equipment albat provided to him. The manufacturer of the equipment wrote instructions telling how the equipment safely could be used. Thus, the manufacturer could testify at trial whether the instruction given was accurate. Furthermore, experienced users of the equipment are available to testify whether the method taught by albat was proper. Because such testimony is not ordinarily available in a traditional educational setting, it is difficult to establish a standard of care there.

In this case, by contrast, that testimony is available for a jury to consider. Hence, it can determine *724whether albat’s instruction was reasonable in light of the standard of care provided by users and the manufacturer of pole climbing equipment.4

Second, causation can be established under the facts of this case. Plaintiff alleged that, when he fell, he was following albat’s instructions for maneuvering around an obstacle. He did not allege that albat failed to properly teach him the method it advocated. Rather, he alleged that he learned albat’s technique, followed it, and was injured because the technique albat taught was wrong. There is no need to evaluate plaintiff’s “attitude, motivation, temperament, past experience, [or] home environment” in order to determine why plaintiff did not learn what he was taught. Plaintiff did learn what he was taught. He has alleged that what he was taught was wrong.

Plaintiff claimed that “at the time of the incident, [he] was descending the utility pole with equipment in the manner prescribed by [albat] and, in the process of descending around the cross-arms, sustained serious and permanent injuries.” Thus, accepting plaintiff’s allegation as true, but for albat’s improper instructions, plaintiff would not have fallen. On remand, albat would be free to introduce testimony or evidence that plaintiff was not following the technique that he was taught. At this time there is no indi*725cation in the record of any intervening causes that would supersede albat’s alleged negligence.

Third, there is no danger of a flood of litigation against schools as a result of a remand in this case. The allegation here is not a simple one concerning the quality of education received. Instead, plaintiff makes a specific claim regarding instruction about how to climb poles using a particular piece of equipment that albat provided him. There are standards by which albat’s instruction can be gauged. See p 723. Thus, this case is distinct from the type of educational malpractice case that could result in a flood of litigation.

Fourth, there is no danger that allowing this case to proceed will result in courts becoming embroiled in overseeing the day-to-day operations of schools. On remand, a jury would consider whether the method taught by albat for using the pole climbing equipment was consistent with the manufacturer’s instructions and the experience of users. There would be no need for a court to engage itself in independently overseeing the operation of the school.

The majority cites Cavaliere v Duff’s Business Inst, 413 Pa Super 357, 369; 605 A2d 397 (1992), in which that court applied policy reasons similar to those referenced above to preclude an action for educational malpractice against a court-reporting school:

The concerns that are clearly appropriate in the case of an academic institution are equally raised by an attempt to inquire into the sufficiency of teaching methods at a trade or business school like the Institute. This court would be hard pressed to determine which of several alternative methods of teaching court reporting, or auto repair, or any other specialized business or trade skill was the appropriate *726one. Nor would it be an easy task to determine why a particular student failed to acquire certain skills after pursuing a course of instruction aimed at teaching those skills.

The policy reasons cited by the Cavaliere court, similar to those cited by the Alsides court, are not implicated here. This case involves teaching a student how to use a particular piece of equipment and is distinct from a case involving general instruction. A jury has a standard of care to use in determining whether what was taught was reasonable. Accordingly, it would not be “hard pressed” to determine whether the method taught by albat was reasonable.

Furthermore, there is no reason why one would have to inquire why plaintiff did not acquire certain skills. Plaintiff is not alleging that he failed to acquire the skills that albat purported to teach.5

Finally, the majority also refers to the policy reasons cited by our Court of Appeals in Nalepa, supra at 594-595, to support its holding that plaintiff cannot sustain his case in Michigan:

The rationale for declining to recognize claims of teacher malpractice stems from the collaborative nature of the teaching process. For a positive result to obtain, both teacher and student must work together. The ultimate responsibility for what is learned, however, remains with the student, and many considerations beyond teacher misfeasance, can factor into whether a student receives the intended message. Further, teaching methods vary, and what is considered appropriate by some, may be considered inappropriate by others. Thus, because both the educational process and the result are subjective, there exists a practi*727cal impossibility of proving whether the alleged malpractice caused the complained-of injury.
Even if the harm appears to flow from the alleged malpractice, for public policy reasons, we would still decline to recognize a duty. We agree with the Supreme Court of Wisconsin’s statement in another educational malpractice case:
“Even where the chain of causation is complete and direct, recovery may sometimes be denied on grounds of public policy because (1) the injury is too remote from the negligence; or (2) the injury is too wholly out of proportion to the culpability of the negligent tortfeasor; or (3) in retrospect it appears too highly extraordinary that tire negligence should have brought about the harm; or (4) because allowance of recovery would place too unreasonable a burden [on the defendant]; or (5) because allowance of recovery would be too likely to open the way for fraudulent claims; or (6) allowance of recovery would enter a field that has no sensible or just stopping point.” [Citations omitted.]

I will address each of those policy rationales in turn and show that, like those cited by the courts in Alsides and Cavaliere, this case does not implicate them.

First, in this case the injury is not too remote from albat’s alleged negligent pole climbing instruction. Plaintiff allegedly fell while following albat’s training method. Plaintiff’s injury is a normal consequence of the situation created by albat’s alleged improper instruction. Thus, the injury should have been foreseeable to albat and was not too remote from albat’s conduct to be actionable. See Moning v Alfono, 400 Mich 425, 442; 254 NW2d 759 (1977).

Second, the injury is not out of proportion to the culpability of albat. A duty to exercise reasonable care arises when it is foreseeable that an actor’s conduct may create a risk of harm to the victim. See Schultz, supra at 451-452; Moning, supra at 439. *728Here, it was foreseeable that defendant’s alleged failure to properly instruct plaintiff could result in plaintiff falling and suffering injuries. Thus, albat had a duty to instruct plaintiff in the proper manner of climbing poles and using the equipment it provided him. Albat’s alleged breach of its duty caused plaintiff’s injuries. Therefore, the harm that resulted is not out of proportion with the culpability of albat in breaching its duty to plaintiff.

Third, there is nothing highly extraordinary about what took place in this case. As demonstrated above, it is clear that, if albat’s instruction was improper, it could cause the harm that resulted.

Fourth, plaintiff’s recovery would not place an unreasonable burden on albat. If found liable, albat could continue to instruct individuals in pole climbing techniques. However, it would simply be required to follow the guidelines or instructions of the manufacturer or users who were experienced in the equipment albat provided.

Fifth, remanding this case for trial would not encourage fraudulent claims. Plaintiff will be required at trial to make a showing that albat’s instruction was unreasonable and to prove all the elements of a negligence claim. Absent such a showing, plaintiff will not prevail. This case does not change the typical requirements for bringing a negligence suit. Thus, I do not perceive how allowing this case to continue as a negligence suit would encourage fraudulent claims.

Sixth, there is a sensible and just stopping point. When a plaintiff’s claim violates one or more of the policy considerations provided by the majority, a sensible and just stopping point will have been reached. Here, as demonstrated above, plaintiff is able to avoid *729implicating the policy reasons cited for precluding a case on the basis that it sounds in educational malpractice. Therefore, there is no reason to preclude plaintiffs claim.

B

Plaintiffs claim fits well with the confines of a general negligence claim. He is able to demonstrate that albat had a duty to exercise reasonable care in instructing him how to climb poles. That duty arose when albat provided him with pole climbing equipment and took upon itself the task of instructing him how to use it. See pp 727-728.

In addition, albat’s duty to exercise reasonable care arose as a result of the special relationship between the parties. Schultz, supra at 450-451. Plaintiff and albat entered into a contract under which albat was to teach plaintiff how to climb telephone poles. Albat had a duty to exercise reasonable care in the execution of that contract. Clark v Dalman, supra at 261.

Also, plaintiff sufficiently pleaded the second element of a negligence claim. Plaintiff alleged that (1) albat did not advise plaintiff of a recall of the equipment, (2) albat recommended, demonstrated, and supplied inappropriate linemen’s systems for plaintiff’s use, and (3) albat failed to provide adequate instructions regarding the use of the equipment. We consider these allegations as true for purposes of our review. Hartford Accident & Indemnity Co, supra. Accordingly, plaintiff’s allegations are sufficient to support his claim that albat breached the duty it owed to him.

*730Finally, plaintiff sufficiently pleaded the third and fourth elements of his negligence claim. He alleged that his injuries were proximately caused by albat’s negligence.6 Inherent in that allegation is the charge that albat’s negligence caused his injuries without the intervention of any unanticipated or unforeseeable event. See Nielsen v Henry H Stevens, Inc, 368 Mich 216; 118 NW2d 397 (1962) (defining proximate cause). To establish proximate cause plaintiff was required to allege facts sufficient to show cause in fact and legal cause. Dedes v Asch, 233 Mich App 329; 590 NW2d 605 (1998).

Plaintiff alleged that, when he fell, he was following albat’s instructions for maneuvering around an obstacle. Accepting that allegation as true, albat’s improper instructions were the cause in fact of his fall and injuries. But for the improper instructions, plaintiff would not have fallen. Moreover, there is no indication of any intervening causes that would supersede albat’s alleged negligence. Thus, I find that plaintiff made a sufficient showing of proximate cause to sustain his action.

m. conclusion

Plaintiff’s complaint establishes a prima facie negligence claim, and it should be heard by a jury. His negligence claim is distinct from a claim for educational malpractice and, thus, should not be foreclosed by the application of a doctrine prohibiting claims of educational malpractice. Therefore, I would affirm *731the Court of Appeals decision and remand this case to the circuit court for further proceedings.

Cavanagh, J., concurred with Kelly, J.

The majority states that I rely on plaintiffs allegations grounded in products liability to sustain plaintiffs complaint. I disagree. The trial court dismissed plaintiffs products liability count The Court of Appeals affirmed, holding that albat had no duty to warn or instruct plaintiff to use a component part in connection with the equipment it provided to him.

Plaintiffs negligence count alleges that albat did not exercise reasonable care in training him how to climb poles. In order to train someone to climb poles, it is necessary to instruct in the use of pole climbing equipment. Independent of whether albat had a duty to warn or instruct plaintiff on the use of additional safety equipment, albat had another duly. It was to properly instruct plaintiff how to use the equipment needed to climb poles. See p 729. Plaintiffs negligence claim addresses that duty. Thus, it is distinct from his products liability count.

The plaintiff alleged that the public school failed to provide adequate instruction to the plaintiff in basic academic skills in Cavaliere v Duff's Business Inst, 413 Pa Super 357, 370; 605 A2d 397 (1992); see also Peter W v San Francisco Unified School Dist, 60 Cal App 3d 814; 131 Cal Rptr 854 (1976). The plaintiff alleged that there were deficiencies in the education provided by the defendant trade school in Tolman v CenCor Career Colleges, Inc, 851 P2d 203 (Colo App, 1992). The plaintiff alleged that the public school failed to properly test and evaluate for learning disabilities in Johnson v Clark, 165 Mich App 366, 367; 418 NW2d 466 (1987).

592 NW2d 468, 472 (Minn App, 1999).

Courts have not uniformly found it impractical to define a standard of care for educational institutions. In Brigham Young Univ v Lillywhite, 118 F2d 836 (CA 10, 1941), the court held admissible the testimony of two instructors. It concerned the practices they used in their classrooms for purposes of determining whether the instructor in the case had exercised reasonable care in supervising chemical experiments. See also Kirchner v Yale Univ, 150 Conn 623, 627; 192 A2d 641 (1963), in which the court held that it was the obligation of the defendant school to exercise reasonable care to instruct its students in the safe and proper operation of woodworking equipment entrusted to their use as part of a class.

The majority also cites Tolman, n 2 supra, in which that court provides similar policy reasons for dismissing plaintiff’s educational malpractice suit. As I have already discussed those reasons above, I see no reason to address the Tolman case in detail.

There is no dispute over whether plaintiff suffered injuries from his fall. Thus, plaintiff has adequately pled the element of damages.