Green v. State, Docket No. 8470

• Decision Date: 18 February 1971
• Docket Number: Docket No. 8470,No. 2,2
• Citation: 30 Mich.App. 648,186 N.W.2d 792
• Parties: Amos GREEN, Plaintiff-Appellee, v. STATE of Michigan, Corrections Department, Defendant-Appellant. *
• Court: Court of Appeal of Michigan — District of US

Page 792

186 N.W.2d 792

30 Mich.App. 648

Amos GREEN, Plaintiff-Appellee, v. STATE of Michigan, Corrections Department Defendant-Appellant. ^*

Docket No. 8470.

Court of Appeals of Michigan, Division No. 2.

Feb. 18, 1971.

Released for Publication May 21, 1971.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Wallace K. Sagendorph, Asst. Atty. Gen., for defendant-appellant.

Sheldon L. Miller, Lopatin, Ward, Miller & Bindes, Detroit, for plaintiff-appellee; Michael H. Feiler, Detroit, of counsel.

Before LESINSKI, C.J., and J. H. GILLIS and BEASLEY, ^* JJ.

J. H. GILLIS, Judge.

Plaintiff pled guilty to felonious assault ¹ and was sentenced to 2 years probation, the first 60 days of which were to be served in the Detroit house of correction. While a prisoner, the plaintiff was assigned to work on a planing machine in the prison shop. On December 28, 1966, while using the machine, 1/2 of the plaintiff's middle finger of his right hand was amputated. At trial, plaintiff testified that the planning machine was without the proper protective shield and safety switch. He further testified, on cross-examination:

'Q. You said, Mr. Green, that the supervisor was in the area. Was he watching you while you were planing?

'A. No, he was in his office.

'Q. I see. But that was close by?

'A. Yes, close by.

'Q. Had you received any instruction on how to operate this machine prior to the time you started work on it?

'A. No, I didn't, no more than a fellow that was living out there, he showed me a few ideas, but he was leaving.

'Q. But you also testified on direct examination that you had called the attention of the people at the Detroit house of corrections to the fact that you had had some experience with machines of this kind in the past?

'A. Yes, I had with two, I explained to Mr. Cromer that I was handy with tools.'

Plaintiff filed a notice of intention to file a claim against the State of Michigan in the Court of Claims on March 1, 1967. The claim itself, which was filed on January 2, 1968, sought damages against the State for defendant's alleged negligence in failing to maintain safe working conditions. Defendant filed a timely motion for summary judgment, GCR 1963, 117.2, which was subsequently denied.

After all proofs had been taken, the lower court found that the plaintiff was injured and that the proximate cause of that injury was the defendant's negligent maintenance of the planing machine in question. Plaintiff was awarded damages in the amount of $2,000.

This is a case of first impression. The defendant, State of Michigan, raises 3 issues on appeal. The State first argues that it is not a proper party defendant to this suit in that the State exercises no direct supervisory control over the Detroit house of correction, and, therefore, that prison facility cannot be classified as a State penal institution.

Our Supreme Court has historically held that the Detroit house of correction is not a city prison facility, but rather is one which exists as a creation of the legislature. City of Detroit v. Laughna (1876), 34 Mich. 402; City of Detroit v. Board of Water Commissioners (1896), 108 Mich. 494, 66 N.W. 377. Further, it was a State statutory offense ² to which the plaintiff pled guilty, and at sentencing he was 'committed to the Michigan Corrections Commission (a state agency) by delivery to the Detroit house of correction, the place designated by the Commission.'

Subject only to the constitutional powers vested in the executive and judicial departments of this State, the Corrections Commission has exclusive jurisdiction over all State

'penal institutions, correctional farms, probation recovery camps, prison labor and industry, wayward minor programs and youthful trainee institutions and programs for the care and supervision of youthful trainees.' M.C.L.A. § 791.204 (Stat.Ann.1970 Cum.Supp. § 28.2274).

In addition, the Corrections Commission is empowered to appoint a director, ³ who is in turn empowered to make rules and regulations 'for the management and control of state penal institutions * * * and prison labor and industry,' M.C.L.A. § 791.206 (Stat.Ann.1970 Cum.Supp. § 28.2276).

M.C.L.A. § 791.262 (Stat.Ann.1970 Cum.Supp. § 28.2322) provides in pertinent part that the Corrections Commission through its assistant director for penal institutions

'shall supervise and inspect local jails and houses of correction for the purpose of obtaining facts in any manner pertaining to the usefulness and proper management of said penal institutions and of promoting proper, efficient and humane administration thereof, and shall promulgate rules and standards with relation thereto * * *.'

Although the Detroit house of correction is managed by a superintendent appointed by the City of Detroit, it, as a prison facility within this State, is subject to the same standard of supervision and inspection by the Corrections Commission as is applicable to all other state prison facilities. M.C.L.A. § 802.1 et seq. (Stat.Ann.1948 Rev. § 28.1811 et seq.).

This is not to say that every prisoner now confined to the Detroit house of correction is a state prisoner and thus the state is responsible for his physical safety. Rather, our examination of all appropriate statutes leads us to conclude that in the case now before us, plaintiff was a state prisoner at the time he incurred his injury. The trial court held that the State of Michigan was a proper party defendant; we affirm that finding.

Secondly, defendant urges that it was error for the trial court to deny its affirmative defense of sovereign immunity. We disagree. We recognize that the State is statutorily immune from negligence liability except as that act has been modified. ⁴ This case, however, falls within one of those statutory exceptions, I.e., a defect in a public building. ⁵

Defendant argues that the Detroit house of correction is not a public building in that it is not open to the public-at-large. This analysis begs the real issue.

A 'public building' has been defined as:

'A building owned by a public body, particularly if it is used for public offices or for other public purposes.' Ballentine's Law Dictionary, 3d ed.

Thus, a public building is one which exists as a benefit to the whole community and is operated and maintained by the governing body of that same community. Cf. Cleveland v. City of Detroit (1948), 322 Mich. 172, 33 N.W.2d 747; Anno: What is 'public buildings.' 19 A.L.R. 543. The Detroit House of Correction is such a building. ⁶

Similarly, plaintiff is a member of the public community whether in or out of jail. The difference being that when incarcerated, he is prevented, by law, from exercising the rights and privileges he enjoyed as a free member of society. ⁷

Consequently, the State's liability in this cause of action accrued under its obligation to maintain and repair public buildings:

'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 * * *.' M.C.L.A. § 691.1406 (Stat.Ann.1969 Rev. § 3.996(106)).

The planing machine in question was anchored securely to the floor in the prison shop. Our Courts have held that permanently attached fixtures in public buildings become part of those buildings. Williams v. City of Detroit (1961), 364 Mich. 231, 111 N.W.2d 1; DeNoyer v. City of Ann Arbor (1967), 9 Mich.App. 26, 155 N.W.2d 689. Accepting the factual findings of the trial court as true, ⁸ we conclude, as did the lower court, that the safety defects in the planing machine amounted to defects in a public building.

Defendant also argues that plaintiff failed to strictly comply with the notice provisions which existed as a condition precedent to his recovery.

'As a condition to any recovery for injuries sustained by reason of any dangerous or defective public building, the injured person, within 60 days from the time the injury occurred, shall serve a verified notice on the responsible governmental agency of the occurrence of the injury and the defect. The notice shall specify the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant.' M.C.L.A. § 691.1406 (Stat.Ann.1969 Rev. § 3.996(106)).

'Notice to the state of Michigan shall be given as provided in Section 4 * * *.' Id.

Section 4 of the act referred to above provides in part:

'* * * In case of the state of Michigan, such notice shall be filed in triplicate with the clerk of the court of claims. Filing of such notice as herein required shall constitute compliance with section 6431 of the (Court of Claims Act), requiring the filing of notice of intention to file a claim against the state * * *.' M.C.L.A. § 691.1404 (Stat.Ann.1965 Rev. § 3.996(104)).

Defendant takes issue not with the sufficiency of the notice, ⁹ but with the fact that the claim was not filed within the 60 days as required by statute. We recognize the authority cited by defendant ¹⁰ that the Supreme Court, in the past, has required strict compliance with this notice provision before they have permitted any claim to accrue. However, we also recognize that the modern trend is to liberally construe notice provisions similar to that required by our statutes. Cf. Anno: 65 A.L.R.2d 1278; Kustasz v. City of Detroit (1970), 28 Mich.App. 312, 184 N.W.2d 328; Grubaugh v. City of St. Johns (1970), 384 Mich. 165, 180 N.W.2d 778.

The purpose of such notice provisions is two-fold:

'They (a) give the (municipal corporation) an opportunity to ascertain the extent of the injuries and the incidents attending the accident while the occurrence is fresh in the minds of those who possess information on the subject; and (b) inform the municipality so that it can correct the defect giving rise to the injury.' 2 Antieau, Municipal...