Opinion

Velmer v. Baraga Area Schools

  • 157 Mich. App. 489
  • 403 N.W.2d 171
Court
Michigan Court of Appeals
Filed
Feb 2, 1987
Status
Published
Author
Livo
On the bench
Allen, Cynar, Livo
Cited by
11 cases
Authority
More cited than 8.4%

Reversed on other grounds by Velmer v. Baraga Area Schools, 430 Mich. 385 (1988)

distinguishing intentional, negligent omissions from intentional, negligent commissions

How later courts described this case

  • distinguishing intentional, negligent omissions from intentional, negligent commissions

Written by the judges who cited it.

Distinguished

  • Distinguished by Chapin v. Coloma Township, 163 Mich. App. 614 (1987)

    We also distinguish Velmer on the ground that the dangerous condition in that case was latent.
    Michigan Court of AppealsJun 25, 1987Read it

The opinion

R. C. Livo, J.

(concurring in part and dissenting in part). I concur in the result reached by the lead opinion. I write separately because I respectfully disagree with the lead opinion’s reliance on Furness v Public Service Comm, 100 Mich App 365 ; 299 NW2d 35 (1980).

I disagree with Furness and the lead opinion to the extent they hold that conduct amounting to refusal to act to cure a known danger is conduct protected by governmental immunity. 1

I agree instead with Landry v Detroit, 143 Mich App 16 ; 371 NW2d 466 (1985), where this Court held that a refusal to install necessary metal detectors stated a claim in avoidance of immunity. A refusal to use reasonably available means to avoid a known danger is a commissive act originating in the intent not to act.

I concur in the result reached by the lead opinion because, as noted in the lead opinion, under the facts of this case, Baraga Area Schools neither *504 knew nor should have known that without a point-of-operation guard harm would follow. Thus, the conduct of Baraga Area Schools was omissive only and is protected by governmental immunity.

I note that the plaintiff in Furness did not allege knowing neglect to order installation of necessary railroad crossings. Furness , p 367.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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