Brown v. Genesee County Bd. of Com'rs

• Decision Date: 21 March 1997
• Docket Number: Docket No. 179788
• Parties: Chester E. BROWN, Jr., Plaintiff-Appellant, v. GENESEE COUNTY BOARD OF COMMISSIONERS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 125

564 N.W.2d 125

222 Mich.App. 363

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

Docket No. 179788.

Court of Appeals of Michigan.

Submitted Aug. 6, 1996, at Detroit.

Decided March 21, 1997, at 9:00 a.m.

Released for Publication June 6, 1997.

Schreier & Weiss, P.C. by Mark Schreier and Alyce M. Haas, Royal Oak, for plaintiff-appellant.

Plunkett & Cooney, P.C. by Christine D. Oldani and H. William Reising, Detroit, for defendant-appellee.

Before TAYLOR, P.J., and MARKEY and N.O. HOLOWKA ^*, JJ.

MARKEY, Judge.

Plaintiff appeals as of right from the trial court's order granting summary disposition for defendant pursuant to MCR 2.116(C)(7) on the basis that defendant was entitled to governmental immunity. We affirm.

While incarcerated at the Genesee County Jail in March 1993, plaintiff was injured when, after showering, he slipped and fell on a wet floor. In plaintiff's complaint, which was predicated on the public building exception to governmental immunity, M.C.L. § 691.1406; M.S.A. § 3.996(106), he alleged that the shower area of defendant's jail was defectively designed or dangerously maintained in light of improper water drainage and the absence of a shower curtain to prevent the floor from becoming wet and slippery. Defendant moved for, and the trial court granted, summary disposition. The court reasoned that the situs of plaintiff's fall (the shower area) did not come within the public building exception because members of the general public were denied access to the inmate shower area. Plaintiff appeals from that determination.

This Court reviews a trial court's grant or denial of summary disposition de novo to determine if the moving party was entitled to judgment as a matter of law. Citizens Ins. Co. v. Bloomfield Twp., 209 Mich.App. 484, 486, 532 N.W.2d 183 (1994). When the motion is brought under MCR 2.116(C)(7), the pleadings, together with all documentary evidence submitted, are reviewed in a light most favorable to the nonmoving party to determine whether the moving party has established that it is entitled to governmental immunity. Id.; Wade v. Dep't of Corrections, 439 Mich. 158, 162-163, 483 N.W.2d 26 (1992). In order to survive a motion brought under this subrule, the plaintiff must allege facts that justify an exception to governmental immunity. Wade, supra; Steele v. Dep't of Corrections, 215 Mich.App. 710, 712-713, 546 N.W.2d 725 (1996).

Plaintiff first contends that the trial court erred in finding that the prisoner shower area of the Genesee County Jail was not, as a matter of law, open for use by members of the public under the public building exception contained in M.C.L. § 691.1406; M.S.A. § 3.996(106). We disagree.

While generally immune from tort liability pursuant to M.C.L. § 691.1407; M.S.A. § 3.996(107), governmental agencies are liable for injuries arising out of dangerous or defective public buildings. M.C.L. § 691.1406; M.S.A. § 3.996(106). The public building exception to governmental immunity provides in part:

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. [M.C.L. § 691.1406; M.S.A. § 3.996(106).]

Before the public building exception will apply to pierce the shield of governmental immunity, the plaintiff must prove that (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 building itself exists, (4) the governmental agency had actual or constructive knowledge of the defect, and (5) the governmental agency failed to remedy the alleged defective condition after a reasonable period. Jackson v. Detroit, 449 Mich. 420, 428, 537 N.W.2d 151 (1995); Steele, supra at 713-714, 546 N.W.2d 725.

The purpose of the building exception to governmental immunity is to protect the general public from injury by imposing a duty on the government to maintain safe public buildings but not necessarily safety in public buildings. Steele, supra; Carlton v. Dep't of Corrections, 215 Mich.App. 490, 493-494, 546 N.W.2d 671 (1996). Accordingly, with respect to this issue, the focus of the trial court's and this Court's inquiry is on the "accessibility [of the accident site] to members of the general public, rather than on the extent to which the building might benefit the community." Steele, supra at 714, 546 N.W.2d 725 (emphasis added); Griffin v. Detroit, 178 Mich.App. 302, 306, 443 N.W.2d 406 (1989).

As in Steele, where the prisoner-plaintiff was injured while renovating a state-owned building for future use as a correctional facility, plaintiff relies on Green v. Dep't of Corrections, 386 Mich. 459, 464, 192 N.W.2d 491 (1971) (Green II ). In Green II, our Supreme Court affirmed this Court's findings that prisons or jails were public buildings and prisoners were members of the general public despite their incarceration, thereby permitting a prisoner to successfully pursue relief from the Department of Corrections for a finger amputation he suffered while working in a prison shop. Green v. Dep't of Corrections, 30 Mich.App. 648, 654, 186 N.W.2d 792 (1971) (Green I ). Both Green decisions defined a public building as "one which exists as a benefit to the whole community and is operated and maintained by the governing body of that same community." Green II, supra at 464, citing Green I, supra at 654, 186 N.W.2d 792. In finding that the plaintiff was a member of the public community whether he was in or out of jail for purposes of the public building exception, this Court did not rely on prior precedent but merely observed that "[t]he difference [is] that when incarcerated, he is prevented, by law, from exercising the rights and privileges he enjoyed as a free member of society." Green I, supra at 654-655, 186 N.W.2d 792. Further, in footnote 7, this Court also distinguished between and defined the terms "private" and "public" in order to show that the plaintiff was not a private citizen while incarcerated, so he must be a public citizen. Id.

More recently, however, the boundaries of governmental immunity and the public building exception have been redefined. Our Supreme Court in Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), explained that the statutory grant of governmental immunity must be broadly construed and its exceptions narrowly drawn. Chaney v. Dep't of Transportation, 447 Mich. 145, 154, 523 N.W.2d 762 (1994); Wade, supra at 166, 483 N.W.2d 26. Indeed, "the scope of this [public building] exception has been narrowed considerably in the time since [1978]." Puroll v. Madison Heights, 187 Mich.App. 672, 673, 468 N.W.2d 52 (1990); see also Wade, supra at 167, 483 N.W.2d 26. In light of the test currently applied to establish the public building exception and the impact of Ross on governmental immunity cases, we find that the decisions in Green are not controlling here and that the trial court did not err in granting summary disposition for defendant.

The five-part test for applying the public building exception requires that "the public building in question is open for use by members of the public" and that the trial court focus on the "accessibility to members of the general public, rather than on the extent to which the building might benefit the community." Steele, supra at 713-714, 546 N.W.2d 725 (emphasis added). In contrast, the Supreme Court in Green II, supra at 464, adopted this Court's definition of a public building as "one which exists as a benefit to the whole community and is operated and maintained by the governing body of that same community." Green I, supra at 654, 186 N.W.2d 792. Notably, both our Supreme Court in Jackson, supra, and this Court in Steele, supra, have reverted to a more narrow construction of the public building exception than that which was applied before Ross. We must do the same. Assuming, arguendo, that although the jail building where plaintiff was incarcerated is a public building, the shower area where plaintiff fell is not "open for use by members of the public" or accessible to members of the general public. Steele, supra; Griffin, supra. Thus, we must conclude that the public building exception does not apply here. See also Andrews v. Detroit, 450 Mich. 875, 539 N.W.2d 506 (1995), where the Supreme Court ruled that the Detroit Wastewater Plant was not a building open for use by members of the public.

Plaintiff argues that, as stated in Green II, supra at 464, he and the other inmates are members of the public community even though they cannot exercise the rights and privileges enjoyed by free members of society. In light of Ross' mandate that we narrowly construe the exceptions to governmental immunity, and in view of the fact that this issue has no effect on our decision today, we need not address it. The trial court herein relied on two cases that support this conclusion: Putman v. Wayne Co. Community College (After Remand), 189 Mich.App. 557, 558-559, 473 N.W.2d 711 (1991), and Taylor v. Detroit, 182 Mich.App. 583, 588, 452 N.W.2d 826 (1989). In Taylor, the plaintiff's son was electrocuted after he entered an electrical substation that the city owned and operated. This Court found that the public building exception was inapplicable because only authorized persons were allowed entry into the substation and the structure was not designed or intended to be accessible to the general public. Id. In Putman, supra, this Court relied on Taylor, sup...