Brown v. Genesee County Bd. of Com'rs

• Citation: 590 N.W.2d 603,233 Mich.App. 325
• Decision Date: 29 December 1998
• Docket Number: Docket No. 179788
• Parties: Chester E. BROWN, Jr., Plaintiff-Appellant, v. GENESEE COUNTY BOARD OF COMMISSIONERS, Defendant-Appellee. (On Remand)
• Court: Court of Appeal of Michigan (US)

Page 603

590 N.W.2d 603

233 Mich.App. 325

Chester E. BROWN, Jr., Plaintiff-Appellant, v. GENESEE COUNTY BOARD OF COMMISSIONERS, Defendant-Appellee. (On Remand)

Docket No. 179788.

Court of Appeals of Michigan.

Submitted Dec. 4, 1998, at Lansing.

Decided Dec. 29, 1998, at 9:55 a.m.

Released for Publication March 12, 1999.

Schreier & Weiss, P.C. (by Mark Schreier and Alyce M. Haas), Royal Oak, for the plaintiff.

Plunkett & Cooney, P.C. (by Christine D. Oldani and H. William Reising), Detroit, for the defendant.

Before: MARKEY, P.J., and FITZGERALD and WHITE, JJ.

ON REMAND

PER CURIAM.

This Court previously issued its opinion affirming the trial court's grant of summary disposition for defendant pursuant to MCR 2.116(C)(7) in Brown v. Genesee Co. Bd. of Comm'rs, 222 Mich.App. 363, 564 N.W.2d 125 (1997). Plaintiff's application for leave to appeal to our Supreme Court was held in abeyance pending the resolution of Kerbersky v. Northern Michigan Univ. (Supreme Court Docket No. 105234). In light of its July 30, 1998, decision in Kerbersky, found at 458 Mich. 525, 582 N.W.2d 828 (1998), our Supreme Court, in lieu of granting leave to appeal, remanded this matter to us so we may reconsider our decision in light of Kerbersky. 459 Mich. 881, 587 N.W.2d 498 (1998). On remand, we must conclude that the rationale underlying our previous decision does not reflect the Supreme Court's current statement of the law as set forth in Kerbersky. We further conclude, however, that in light of Kerbersky, issues of fact exist regarding whether the construction of the drain adjacent to the inmates' shower, or a defect in the drainage system, constituted a "dangerous or defective condition of the public building itself." Accordingly, we vacate our prior opinion, reverse the trial court's order granting defendant's motion for summary disposition, and remand this matter for further proceedings and evidence to determine whether the shower area itself constituted a dangerous or defective condition of the jail, which is a public building.

In Kerbersky, supra at 527-528, 582 N.W.2d 828, a worker was injured when he fell from a ladder permanently attached to a building on the defendant university's campus during a renovation project involving the building. Kerbersky filed suit against the defendant university and others, alleging a negligence or premises liability theory and the application of the public building exception to governmental immunity. Id. Our Supreme Court determined that requiring a plaintiff to "prove he was injured in a 'public area' of a public building has no basis in the [public building exception to governmental immunity] statute," M.C.L. § 691.1406; MSA 3.996(106). ¹ Id. at 537, 582 N.W.2d 828 (Kelly, J., concurring). In short, the Supreme Court concluded that if the building in which the plaintiff is injured is a public building open for use by members of the public, regardless of whether the situs of the accident is accessible to the public, that plaintiff should be able to invoke the public building exception.

Having decided this case before Kerbersky and pursuant to then-existing case law, we concluded in our prior opinion that ...