Horace v. City of Pontiac

• Decision Date: 07 April 1998
• Docket Number: Docket Nos. 104838,105775,Nos. 2-3,s. 2-3
• Citation: 575 N.W.2d 762,456 Mich. 744
• Parties: Denise HORACE, Plaintiff-Appellee, v. CITY OF PONTIAC, Defendant-Appellant. Madelene ADAMS, Plaintiff-Appellee, v. STATE of Michigan, Michigan DEPARTMENT OF STATE HIGHWAYS AND TRANSPORTATION, Defendant-Appellant. Calendar
• Court: Michigan Supreme Court

Page 762

575 N.W.2d 762

456 Mich. 744

Denise HORACE, Plaintiff-Appellee, v. CITY OF PONTIAC, Defendant-Appellant.

Madelene ADAMS, Plaintiff-Appellee, v. STATE of Michigan, Michigan DEPARTMENT OF STATE HIGHWAYS AND TRANSPORTATION, Defendant-Appellant.

Docket Nos. 104838, 105775.

Calendar Nos. 2-3.

Supreme Court of Michigan.

Argued Dec. 9, 1997.

Decided April 7, 1998.

Ronald J. Gricius, P.C. by Jeffrey W. Rentschler, Mt. Clemens, for Plaintiff-Appellee in Horace.

Bernstein & Bernstein, P.C. by Thomas B. Calcatera, Southfield, for Plaintiff-Appellee in Adams.

Cummings, McClorey, Davis & Acho, P.C. by Joseph Nimako and T. Joseph Seward, Livonia, for Defendant in Horace.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Brenda E. Turner and Vincent Leone, Assistant Attorneys General, Lansing, for defendant in Adams.

Opinion

TAYLOR, Justice.

We granted leave to appeal in these consolidated cases to determine whether the public building exception to governmental immunity ¹ applies to slip and fall injuries arising from a dangerous or defective condition existing in an area adjacent to an entrance or exit, but nevertheless still not part of a public building. We are persuaded that the Legislature did not intend this exception to the broad grant of governmental immunity to apply in such circumstances because it is inconsistent with a narrow reading of the exception. We therefore hold that the public building exception is inapplicable in both cases.

I. Facts and Proceedings

A. Horace v. City of Pontiac

On June 17, 1989, Denise Horace tripped and fell in a hole or crack in the asphalt while proceeding toward the south entrance of the Pontiac Silverdome on a descending walkway. Horace had passed through a turnstile and was between eighteen and twenty-eight feet from the south entrance doors when she fell. Horace filed a lawsuit against the city of Pontiac in the Oakland Circuit Court, seeking compensation for her injuries. The city sought summary disposition on the basis of governmental immunity. Horace opposed the motion, citing the defective public building exception. The trial court denied the city's motion. The Court of Appeals then denied the city's application for leave to appeal. This Court remanded the matter to the circuit court for reconsideration in light of Wade v. Dep't of Corrections, 439 Mich. 158, 483 N.W.2d 26 (1992), in response to the city's application for leave to appeal. 439 Mich. 1011, 485 N.W.2d 511 (1992).

Pursuant to our remand, the trial court found that Horace could not invoke the public building exception to governmental immunity because "the pothole is not a defect in a public building, but rather a defect in the sidewalk leading to the building." Horace appealed, and the Court of Appeals remanded for reconsideration in light of Maurer v. Oakland Co. Parks & Recreation (On Remand), 201 Mich.App. 223, 506 N.W.2d 261 (1993). ² The Court of Appeals believed a remand was appropriate because the trial court had not had the benefit of Maurer when it issued its decision. The Court of Appeals declined to apply Maurer itself, stating the record did not provide a sufficiently detailed description of the area where plaintiff fell. This Court granted the city's application for leave to appeal, ordering the case to be argued and submitted with Adams v. Michigan. 454 Mich. 905, 564 N.W.2d 46 (1997).

B. Adams v. State of Michigan

On September 3, 1992, Madelene Adams was walking on a cement walkway to the entrance of a building at a rest area on I-75 when she fell in a hole in the cement walk. Adams filed a lawsuit against the state of Michigan in the Court of Claims, seeking compensation for her injuries. The state sought summary disposition on the basis of governmental immunity. Adams opposed the motion, citing the defective public building exception. The trial court granted summary disposition on the basis that the cement walk was not so much an entrance to a public building as it was a sidewalk that is in front of the rest stop, leading not only to the building, but also to a telephone, an outside map, a picnic area and a dog run. Adams appealed, and the Court of Appeals reversed on the basis of Maurer, supra, noting we had reversed Maurer on other grounds sub. nom. Bertrand v. Alan Ford, Inc., 449 Mich. 606, 537 N.W.2d 185 (1995). Judge Nelson dissented, criticizing Maurer. We granted the state's application for leave to appeal. 454 Mich. 905, 564 N.W.2d 46 (1997).

C. Standard of Review

In Adams, the Court granted the state summary disposition pursuant to MCR 2.116(C)(7) and (8). In Horace, the Court granted summary disposition pursuant to MCR 2.116(C)(7). A party may move for summary disposition under subrule (C)(7) on the basis that the claim is barred because of immunity granted by law. A party may move for summary disposition under subrule (C)(8) on the basis that an opposing party has failed to state a claim upon which relief may be granted. Only the pleadings may be considered when a motion is based on subrule (C)(8). MCR 2.116(G)(5). When a motion is premised on subrule (C)(7) the court must consider not only the pleadings, but also any affidavits, depositions, admissions, or documentary evidence that has been filed or submitted by the parties. MCR 2.116(G)(5). See, further, Wade, supra at 162-163, 483 N.W.2d 26. We review orders granting summary disposition de novo. Groncki v. Detroit Edison Co., 453 Mich. 644, 649, 557 N.W.2d 289 (1996).

II. Review of Case Law

It is now well established, as the result of this Court's seminal governmental immunity opinion in Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), and its progeny, that the term "governmental function" is to be broadly construed and the statutory exceptions thereto, including the public building exception, are to be narrowly construed. Wade, supra at 166, 483 N.W.2d 26; de Sanchez v. Mental Health Dep't, 455 Mich. 83, 90, 565 N.W.2d 358 (1997). ³ This Court and the Court of Appeals have made numerous conflicting statements, frequently in dicta, regarding whether areas adjacent to a building come within the public building exception subsequent to Ross, supra. In Jolly v. City of St. Clair, 428 Mich. 860, 400 N.W.2d 597 (1987), this Court held that a person injured on a slide that was located in a public municipal park and that was not immediately adjacent to or part of any public building did not come within the public building exception. (Emphasis added.) In Reardon v. Dep't of Mental Health, 430 Mich. 398, 415, 424 N.W.2d 248 (1988), this Court quoted Jolly, supra, as clarifying that the duty to maintain safe public places relates to, but does not extend beyond, the condition of the public building itself or the immediately adjacent premises. (Emphasis added.) Yet, Reardon immediately thereafter clarified that the duty imposed by the public building exception relates to dangers actually presented by the "building itself." Id. at 415, 424 N.W.2d 248. ⁴

Post-Ross decisions in the Court of Appeals have been consistent in rejecting public building defect claims involving areas not immediately adjacent to a building, especially if the area of the injury was not immediately in front of an area providing ingress or egress to the building. ⁵ However, in discussing areas immediately adjacent to a public building, the Court of Appeals statements have conflicted.

In Dristy v. Waterford School Dist., 146 Mich.App. 217, 379 N.W.2d 428 (1985), the plaintiff slipped and fell on a snowy sidewalk approximately ten to fourteen feet from the entrance of the building. While the Court of Appeals affirmed a jury verdict of no cause of action, it did state in dicta, citing Tilford v. Wayne Co. General Hosp., 403 Mich. 293, 269 N.W.2d 153 (1978), that school districts remain liable for negligent maintenance of entrance walks to buildings under their control. Dristy failed to note the existence of Ross.

In Yarrick v. Village of Kent City, 180 Mich.App. 410, 414, 447 N.W.2d 803 (1989) (see n. 4), the plaintiff was injured while stepping into a hole while walking across a grassy area to get to a public restroom at a roadside park. The Court of Appeals held that the public building exception did not apply because a "building itself" was not involved. The Court of Appeals further indicated that Reardon represented an abandonment of the conclusion that the building exception could apply to immediately adjacent premises.

In Henkey v. Grand Rapids, 185 Mich.App. 56, 57, 460 N.W.2d 271 (1990) (see n. 3), the plaintiff slipped and fell on some snow and ice on a sidewalk immediately adjacent to the entryway of a public building. The Court of Appeals said it disagreed with Yarrick and believed that Reardon did not limit the public building exception to the actual physical structure of the building. The Court of Appeals held that the exception applied to areas immediately adjacent to a building.

In Hall v. Detroit Bd. of Ed., 186 Mich.App. 469, 471, 465 N.W.2d 12 (1990), the plaintiff slipped and fell on ice while walking from the school grounds to an immediately adjacent sidewalk and building. The Court of Appeals held that the building exception related to dangers actually presented by the building itself and did not apply where a plaintiff fell on property adjacent to a public school.

In Maurer, supra, the plaintiff fell while leaving a restroom at a park when she encountered a seven-inch drop between two steps. The Court of Appeals held that the steps had to be viewed as part "of" the building in light of the fact that the steps were intimately associated or connected with the building itself. The Court of Appeals stated that the steps were not merely adjacent to the restroom building, but were related to the permanent structure or physical integrity of the building. Id. at 229, 506 N.W.2d 261.

As is apparent, this Court and the Court of Appeals have made inconsistent...