Pierce v. City of Lansing, Docket No. 250124.

• Decision Date: 29 March 2005
• Docket Number: Docket No. 250124.
• Citation: 694 N.W.2d 65,264 Mich.App. 174
• Parties: Sheryl L. PIERCE and Herman M. Pierce, Plaintiffs-Appellees, v. CITY OF LANSING, Defendant-Appellant, and Otis Elevator Company, Defendant.
• Court: Court of Appeal of Michigan — District of US

694 N.W.2d 65

264 Mich.App. 174

Sheryl L. PIERCE and Herman M. Pierce, Plaintiffs-Appellees, v. CITY OF LANSING, Defendant-Appellant, and Otis Elevator Company, Defendant.

Docket No. 250124.

Court of Appeals of Michigan.

Submitted February 2, 2005, at Lansing.

Decided February 10, 2005, at 9:00 a.m.

Released for Publication March 29, 2005.

Sinas, Dramis, Brake, Boughton & McIntyre, P.C. (by Michael E. Larkin), Lansing, for Sheryl L. and Herman M. Pierce.

Plunkett & Cooney, P.C. (by Mary Massaron Ross, Camille T. Horne, and David K. Otis), Detroit, for the city of Lansing.

Before: MARKEY, P.J., and MURPHY and O'CONNELL, JJ.

PER CURIAM.

Defendant city of Lansing¹ appeals by right the trial court's order denying its motion for summary disposition under MCR 2.116(C)(7) and (10). We affirm.

Plaintiffs commenced this action, alleging that plaintiff Sheryl Pierce was injured when she fell while entering an elevator at a city-owned parking structure. Plaintiff² alleged that she fell when she failed to notice that the floor of the elevator was not even with the floor on which she was standing. According to a witness, the floor levels were uneven because the elevator was bouncing up and down when the doors opened.

Defendant moved for summary disposition on the basis of governmental immunity and claimed that the parking structure where plaintiff fell was not a public building for purposes of the public building exception to governmental immunity, M.C.L. § 691.1406. The trial court denied the motion and additionally rejected defendant's alternative argument that it could not be liable for plaintiff's injuries because the allegedly dangerous condition of the elevator was open and obvious.

Defendant first argues that the trial court erred in finding that the parking structure where plaintiff was injured qualifies as a public building.

Governmental immunity is a question of law that is reviewed de novo. Mack v. Detroit, 467 Mich. 186, 193, 649 N.W.2d 47 (2002). Also, a trial court's decision on a motion for summary disposition is reviewed de novo. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). When reviewing a motion for summary disposition under MCR 2.116(C)(7), all well-pleaded allegations must be accepted as true and construed in favor of the nonmoving party, unless contradicted by any affidavits, depositions, admissions, or other documentary evidence submitted by the parties. Id. at 119, 597 N.W.2d 817. If no facts are in dispute, or if reasonable minds could not differ regarding the legal effect of the facts, the question whether the claim is barred by governmental immunity is an issue of law. Id. at 120-122, 597 N.W.2d 817.

The public building exception to governmental immunity, MCL 691.1406, provides:

Governmental agencies have the obligation to repair and maintain public buildings under their control when open for use by members of the public. Governmental agencies are liable for bodily injury and property damage resulting from a dangerous or defective condition of a public building if the governmental agency had actual or constructive knowledge of the defect and, for a reasonable time after acquiring knowledge, failed to remedy the condition or to take action reasonably necessary to protect the public against the condition. Knowledge of the dangerous and defective condition of the public building and time to repair the same shall be conclusively presumed when such defect existed so as to be readily apparent to an ordinary observant person for a period of 90 days or longer before the injury took place....

[Emphasis added.]

A plaintiff seeking to invoke the public building exception must prove:

"(1) a governmental agency is involved, (2) the public building in question is open for use by members of the public, (3) a dangerous or defective condition of the public building itself exists, (4) the governmental agency had actual or constructive knowledge of the alleged defect, and (5) the governmental agency failed to remedy the alleged defective condition after a reasonable period of time or failed to take action reasonably necessary to protect the public against the condition after a reasonable period." [Fane v. Detroit Library Comm., 465 Mich. 68, 75, 631 N.W.2d 678 (2001), quoting Kerbersky v. Northern Michigan Univ., 458 Mich. 525, 529, 582 N.W.2d 828 (1998).]

Our Supreme Court has held that in order to be covered by the public building exception "the injury must be occasioned by the dangerous or defective physical condition of the building itself. As long as the danger of injury is presented by a physical condition of the building, it little matters that the condition arose because of improper design, faulty construction, or absence of safety devices." Reardon v. Dep't of Mental Health, 430 Mich. 398, 410, 424 N.W.2d 248 (1988).

Because M.C.L. § 691.1406 does not define the term "building," appellate courts will "give it its plain and ordinary meaning, and consult dictionary definitions." Ali v. Detroit, 218 Mich.App. 581, 584, 554 N.W.2d 384 (1996). As this Court observed in Ali, supra at 584-585, 554 N.W.2d 384:

"Building" is defined as a "relatively permanent, essentially boxlike construction having a roof and used for any of a wide variety of activities, as living, entertaining, or manufacturing," The Random House College Dictionary: Revised Edition (1984), and a "structure designed for habitation, shelter, storage, trade, manufacturing, religion, business, education and the like. A structure or edifice enclosing a space within its walls, and usually, but not necessarily[,] covered with a roof." Black's Law Dictionary (5th ed).

In Ali, the Court concluded that, in light of the ordinary and commonly accepted meaning of the word "building," a bus passenger shelter that was described as "a walled structure made of plexiglas and steel and was designed to protect people from inclement weather" was a building within the meaning of the statute. Id. at 585, 554 N.W.2d 384.

Conversely, in Freedman v. Oak Park, 170 Mich.App. 349, 353, 427 N.W.2d 557 (1988), this Court held that, although a covered park bench was a man-made structure open to the public, it was not a public building. The Court in Freedman reasoned that because the purpose of the covered park bench was merely to "provide[ ] a place to sit or a place to seek refuge from inclement weather," it was not a public building. Id. In reaching this conclusion, the Court relied on Bush v. Oscoda Area Schools, 405 Mich. 716, 275 N.W.2d 268 (1979). In that case, however, our Supreme Court stated that "whether a part of a building ... is dangerous or defective is to be determined in light of the `uses or activities' for which it is `specifically assigned.'" Id. at 731, 275 N.W.2d 268. The Court held that it was for the trier of fact to determine whether a classroom, in light of its use as a science laboratory, was defective because of a lack of appropriate safety features. Id. at 731-732, 275 N.W.2d 268. Thus, while the purpose of a building may be relevant to the determination whether part of a building is dangerous or defective, we do not believe it is dispositive of whether the structure itself is part of a building.

As in Ali, the present case involves a relatively permanent, essentially box-like structure made of concrete. The parking structure has a roof and is enclosed on all sides by half-walls. The structure is owned by defendant and is open to the public for off-street vehicular parking. It has an old section with five levels plus roof parking and a newer section with six levels plus roof parking. Pedestrians have access to the various levels of the structure by means of fully enclosed elevators and stairwells. The structure has running water and electricity, houses some city offices that are heated and air conditioned, and where approximately thirty to forty people work. We conclude that the trial court properly found that the parking structure in this case is a "public building" within the meaning of M.C.L. § 691.1406.

Defendant notes that cases have uniformly held that ordinary street-level parking lots are not public buildings and argues that the structure at issue here is nothing more than a series of parking lots stacked on top of one another. Yet, the cases defendant cites hold that parking lots are not part of a public building. See Puroll v. Madison Hts., 187 Mich.App. 672, 673-674, 468 N.W.2d 52 (1991); Merritt v. Dep't of Social Services, 184 Mich.App. 522, 523-524, 459 N.W.2d 10 (1990); Abrams v. Schoolcraft Community College, 178 Mich.App. 668, 669-671, 444 N.W.2d 533 (1989). Plaintiff here was not injured in a parking lot, but in an allegedly defective elevator that is part of a public parking structure. None of the cases defendant cites involves a structure, as here, that itself is a public building.

We also agree with plaintiff that in accordance with Reardon, the elevator where she fell qualifies as a fixture, and that her injury therefore was "occasioned by the physical condition of the building itself." Reardon, supra at 413, 424 N.W.2d 248. A "fixture" is defined as an item that has "a possible existence apart from the realty, but which may, by annexation, be assimilated into realty." Fane, supra at 78, 631 N.W.2d 678 (citation omitted). "An item is a fixture if (1) it is annexed to realty, (2) its adaptation or application to the realty is appropriate, and (3) it was intended as a permanent accession to the realty." Id. (holding that a raised stone terrace between the sidewalk and the building entrance was part of a public building, but a portable ramp was not); see, also, Velmer v. Baraga Area Schools, 430 Mich. 385, 393-396, 424 N.W.2d 770 (1988) (holding that a one-ton milling machine is a fixture of a public building).

In the present case, it is undisputed that the elevator is located within the four half-walls of the parking structure. The elevator is bolted to the structure. Photographs show...