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Gibson v. Neelis12/23/1997
FOR PUBLICATION
Plaintiff appeals as of right from an amended order denying plaintiff's motion for reconsideration of the trial court's decision to take judicial notice of law, granting defendant's motion for partial summary Disposition, and dismissing plaintiff's remaining claims. We affirm.
Plaintiff's decedent died of carbon monoxide poisoning in a November 14, 1990, fire in her apartment building in the City of St. Ignace, Michigan. The building, owned by defendant, was not equipped with smoke detectors. Plaintiff filed suit under the wrongful death act, MCL 600.2922; MSA 27A.2922, alleging two counts of negligence on the part of defendant. In count I, plaintiff alleged that defendant was liable under principles of common-law premises liability for various conditions throughout the building, including the absence of smoke detectors. In count II, plaintiff alleged that defendant was also liable for certain violations of the duty of care imposed by the Building Officials and Code Administrators National Building Code of 1987 (BOCA).
In response to a request from defendant, the trial court took judicial notice of law and announced that no local or state law, including the common law, required the installation of smoke detectors in defendant's building at the time of the fire that killed plaintiff's decedent. Defendant then moved for partial summary Disposition pursuant to MCR 2.116(C)(8) with respect to all negligence claims based on the alleged absence of smoke detectors in defendant's building. In response, plaintiff answered defendant's motion for partial summary disposition and moved for reconsideration of the trial court's decision to take judicial notice of law. After a hearing on both motions, the trial court denied plaintiff's motion for reconsideration and granted defendant's motion for partial summary Disposition. The trial court reasoned that, subject to certain exceptions, the state administrative rules adopting the BOCA specifically exempted "existing structures" from its provisions, including the provision requiring the installation of smoke detectors. See 1988 AACS, R 408.30401 et seq. Defendant's motion for partial summary Disposition was granted solely on this basis, and plaintiff's remaining claims, based on theories of liability apart from defendant's alleged failure to install smoke detectors, were voluntarily dismissed to achieve a final appealable order.
This Court reviews de novo a trial court's decision to grant a motion for summary Disposition. Atkinson v Detroit, 222 Mich App 7, 9; 564 NW2d 473 (1997). If summary Disposition is granted under one subpart of the court rule when it was actually appropriate under another, the defect is not fatal and does not preclude appellate review as long as the record permits review under the correct subpart. Royce v Citizens Ins Co, 219 Mich App 537, 541; 557 NW2d 144 (1996). In deciding a motion for summary Disposition brought under MCR 2.116(C)(8), a trial court may look only to the parties' pleadings. However, in deciding a motion for summary Disposition pursuant to MCR 2.116(C)(10), a trial court must consider the affidavits, pleadings, depositions, admissions, and other documentary evidence submitted by the parties. MCR 2.116(G)(5). Summary Disposition may be granted pursuant to MCR 2.116(C)(10) if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Atkinson, supra at 9. Here, the trial court looked beyond the pleadings and relied on documentary evidence regarding certain facts unique to the building in question to determine whether defendant was required to install smoke detectors. Accordingly, we will address this issue as if defendant's motion
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