MITCHELL
v.
DEPARTMENT OF CORRECTIONS
Docket No. 52567.
Michigan Court of Appeals.
Decided March 2, 1982.Charfoos, Christensen, Gilbert & Archer, P.C. (by John G. Konkel), for plaintiff.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Mark I. Leach, Assistant Attorney General, for defendant.
Before: DANHOF, C.J., and M.F. CAVANAGH and D.R. FREEMAN,[*] JJ.
D.R. FREEMAN, J.
Plaintiff appeals by right the dismissal of his action for damages in the Court of Claims. His complaint alleged that he was beaten and injured by fellow inmates while incarcerated in the City of Trenton jail. The claim of liability was premised on theories of nuisance and defendant's duty to maintain safely public buildings under its control, imposed by MCL 691.1406; MSA 3.996(106). The judge granted defendant's motion for summary judgment for failure to state a claim, GCR 1963, 117.2(1). Alternately, he granted accelerated judgment, holding the suit was barred by the doctrine of governmental immunity.
A motion for summary judgment under GCR 1963, 117.2(1) tests the legal sufficiency of a claim as it appears in the pleadings. The motion should *742 be denied unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify recovery. Norberg v City of Muskegon, 104 Mich. App. 329; 304 NW2d 573 (1981).
Plaintiff claimed that defendant was responsible for creating or maintaining the Trenton jail as a nuisance, based on defendant's duty to supervise and inspect local jails pursuant to MCL 791.262; MSA 28.2322. Liability for damage caused by a nuisance may only be imposed on a defendant who was in control of the nuisance, either through ownership or otherwise. Coburn v Public Service Comm, 104 Mich. App. 322; 304 NW2d 570 (1981), Stemen v Coffman, 92 Mich. App. 595; 285 NW2d 305 (1979). Unless the defendant has created the nuisance, owned or controlled the property from which it arose or employed another to do work knowing it would likely create a nuisance, liability may not be imposed under a nuisance theory. Stemen, supra, 598. In Stemen this Court held that liability for nuisance could not be based on a city's duty to inspect buildings for housing code compliance. In Coburn, supra, this Court held that liability for nuisance could not be premised on the Public Service Commission's duty to order the installation of safety equipment at railroad crossings.
MCL 791.262; MSA 28.2322 imposes upon defendant the responsibility to supervise and inspect local jails to obtain facts pertaining to the usefulness and proper management of said jails. Defendant is directed by the statute to promulgate rules and standards for the administration of local jails and is allowed to enforce its reasonable orders concerning administration of local jails by mandamus or injunction in the circuit court of the *743 county where the jail is located, through proceedings instituted by the attorney general. The power to make orders concerning the administration of local jails is insufficient to constitute control for the purposes of a nuisance action. A party does not control premises when its control may only be exercised through court action. Control over a city prison, like control over other city agencies, is vested in the city's governing body. MCL 117.4j; MSA 5.2083. Since plaintiff based his claim that defendant controlled the Trenton jail on defendant's statutory duties only, the trial judge properly rejected his claim as a matter of law.
For essentially the same reasons, we affirm the trial judge's holding that plaintiff's complaint failed to state a claim against defendant under the public building exception to the doctrine of governmental immunity. MCL 691.1406; MSA 3.996(106). To recover under the statute, a plaintiff must first show that the defendant was an owner, a lessee or in control of the premises in question. Burrill v Michigan, 90 Mich. App. 408, 411; 282 NW2d 337 (1979).
Home rule cities may provide in their charters for the acquisition and maintenance of city prisons. MCL 117.4e; MSA 5.2078. Persons may be incarcerated in city prisons for the violation of a city's laws or ordinances. MCL 117.4i(10); MSA 5.2082(10). Control over a city prison, like control over other city agencies, is vested in a city's governing body. MCL 117.4j; MSA 5.2083. Control may be concurrent in certain cases. See Green v Dep't of Corrections, 386 Mich. 459, 465; 192 NW2d 491 (1971). In the present case, defendant's role is that of a regulator and not that of an administrator. The trial judge correctly held that plaintiff failed to state a claim under the public building statute.
*744 Plaintiff finally argues that the grant of summary judgment was improper in light of the Supreme Court's decision in Green v Dep't of Corrections, supra. In that case, plaintiff sued the department for injuries he suffered while incarcerated in the Detroit House of Correction. The Court stated:
"The controlling question is whether the state, through the Department of Corrections, may be held to respond in damages for tortious injury sustained by a state-sentenced convict while he is incarcerated in the Detroit House of Correction." Id., 462.
In holding that the doctrine of governmental immunity did not bar the suit, the Court reasoned:
"* * * The legislature has created the Department of Corrections for the purpose of concentrating with that department the primary (but not exclusive of course) responsibility for the well-being as well as the disciplinary rehabilitation of state-sentenced prisoners, whenever such prisoners are held in any penal institution over which Corrections has jurisdiction and the power whether exercised or not to promulgate rules and standards relating thereto. No matter where Corrections may choose lawfully or need lawfully to incarcerate or permit incarceration of any such prisoner, its duty to him remains constant and may not be subjected to delegation; whether or not others are concurrently accountable for breach of the same or a corresponding legal duty." Id., 465.
We disagree with plaintiff's claim that Green's status as a state-sentenced prisoner was irrelevant to the decision. On the contrary, the status of the prisoner was crucial. The Court noted that the official mittimus committing the plaintiff to the Detroit House of Correction directed the department to keep defendant safely in custody for the term of his sentence. Under Green, two criteria *745 must be satisfied: (1) the plaintiff must be a state-sentenced prisoner; (2) the prisoner must be held in a penal institution over which the department has jurisdiction and power to promulgate rules and standards.
In the present case, plaintiff did not allege in his complaint that he was a state-sentenced prisoner. The complaint was, therefore, legally insufficient to state a claim similar to that made in Green. Plaintiff did not at any time seek to amend his complaint to allege that he was a state-sentenced prisoner. Although we consider only the complaint in reviewing the grant of summary judgment pursuant to GCR 1963, 117.2(1), we note that the order committing plaintiff to the Trenton jail clearly indicates he was sentenced under a local ordinance and was not committed to defendant's custody.
Having affirmed the grant of summary judgment, it is unnecessary for this Court to consider the propriety of the trial judge's order granting accelerated judgment.
Affirmed.
DANHOF, C.J., concurred.
M.F. CAVANAGH, J. (dissenting).
I disagree with the majority's interpretation of MCL 791.262; MSA 28.2322. I believe the statute clearly imposes the duty upon the Department of Corrections to supervise and inspect local jails and to promulgate rules and standards pertaining to the management and administration of those jails. I also disagree with the majority's statement that "[a] party does not control premises when its control may only be exercised through court action". The court action referred to is simply a means of assuring the control but presumably would only be resorted to *746 after the department makes rules and the local jails fail to follow them. I am also persuaded that MCL 791.262, in requiring the department to promulgate rules with respect to the proper management and humane administration of local jails, contemplates a greater role for the department than that of just a regulator. Finally, I do not read Green v Dep't of Corrections, 386 Mich. 459; 192 NW2d 491 (1971), to require that plaintiff be a state-sentenced prisoner before the department has any duty to him. The language of the statute makes no reference to such a limitation.
I would reverse.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.