Kerbersky v. Northern Michigan University

• Decision Date: 30 July 1998
• Docket Number: Docket No. 105234,TRI-CITY,No. 8,8
• Citation: 582 N.W.2d 828,458 Mich. 525
• Parties: , 128 Ed. Law Rep. 870 Gerald and Linda KERBERSKY, Plaintiff-Appellants v. NORTHERN MICHIGAN UNIVERSITY, Board of Control, Albin Lundquist and John Doe, Defendants-Appellees, Third-Party Plaintiffs, v.ACOUSTICAL, Third-Party Defendant. Calendar
• Court: Michigan Supreme Court

Page 828

582 N.W.2d 828

458 Mich. 525, 128 Ed. Law Rep. 870

Gerald and Linda KERBERSKY, Plaintiff-Appellants v. NORTHERN MICHIGAN UNIVERSITY, Board of Control, Albin

Lundquist and John Doe[s], Defendants-Appellees, Third-Party Plaintiffs, v. TRI-CITY ACOUSTICAL, Third-Party Defendant.

Docket No. 105234.

Calendar No. 8.

Supreme Court of Michigan.

Argued May 5, 1998.

Decided July 30, 1998.

James W. Perry, Sault Ste. Marie, for the plaintiffs-appellants.

Miller, Canfield, Paddock & Stone, P.L.C. (by James E. Spurr, Ronald E. Baylor, and Sarah S. Swallow), Kalamazoo, for the defendants-appellees.

Opinion

TAYLOR, Justice.

We granted leave to appeal in this case to determine whether the public building exception to governmental immunity ¹ applies to injuries suffered by a construction worker who fell off an allegedly defective ladder on the roof of a Northern Michigan University administration building that remained open to members of the public while renovations were being performed. We find that it does, and therefore we reverse the judgments entered by the Court of Appeals and the trial court.

We hold that a member of the public injured as the result of a defect or dangerous condition of a building that is open to members of the public may invoke the public building exception to governmental immunity, even if the person is injured in an area of the building not open for use by members of the general public.

Facts and Proceedings

On August 10, 1990, plaintiff Gerald Kerbersky was injured when he fell from a permanently attached ladder to a building on the NMU campus. Kerbersky had been working as a welder/carpenter on a renovation project of the building, which remained open for use by members of the public during the construction work. A lawsuit was subsequently filed against defendant in the Court of Claims, alleging the dangerous or defective public building exception to governmental immunity ² and nuisance. A gross negligence claim was also asserted against two individual employees of defendant. It was alleged that the ladder was defective because it was attached closer to the wall than allowed by safety codes and because there was a conduit strung underneath the ladder frame. Defendant moved for summary disposition, arguing that plaintiffs' claim was barred by governmental immunity because the roof of the building was not open to the public and that plaintiff was not present as a member of the public when the accident occurred. Plaintiff opposed the motion, arguing that he was a member of the public and that the area of the roof where the fall occurred was in fact open to members of the public.

After the Court of Claims case was consolidated with a related circuit court action, the circuit court granted defendant's motion for summary disposition on the basis that the area where the fall occurred had restricted access and was not designed or intended for use by members of the general public. The Court of Appeals affirmed, in an unpublished peremptory order, stating that even if it assumed the area was accessible to the general public, the public building exception did not apply because the area where the injury occurred was not intended for use by the general public. The Court of Appeals also affirmed the trial court's dismissal of the gross negligence and nuisance counts. ³ We subsequently granted leave to appeal. 456 Mich. 917, 575 N.W.2d 546 (1998).

Standard of Review

The trial court granted defendant summary disposition on the basis of MCR 2.116(C)(7) (immunity granted by law). When a motion is filed under this subrule, the court must consider not only the pleadings, but also any affidavits, depositions, admissions or documentary evidence that is filed or submitted by the parties. MCR 2.116(G)(5); Sewell v. Southfield Public Schools, 456 Mich. 670, 674, 576 N.W.2d 153 (1998). We review the orders granting summary disposition de novo. Groncki v. Detroit Edison Co., 453 Mich. 644, 649, 557 N.W.2d 289 (1996).

Governmental Immunity Principles

As we recently reiterated in Horace v. City of Pontiac, 456 Mich. 744, 749, 575 N.W.2d 762 (1998), the term "governmental function" is to be broadly construed, and the statutory exceptions thereto, including the public building exception, are to be narrowly construed. To come within the narrow confines of this exception, a plaintiff must prove that (1) a governmental agency is involved, (2) the public building in question was 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 or failed to take action reasonably necessary to protect the public against the condition after a reasonable period. M.C.L. § 691.1406; M.S.A. § 3.996(106); Jackson v. Detroit, 449 Mich. 420, 428, 537 N.W.2d 151 1995). ⁴ The issue in the case at bar involves the proper understanding and application of the second element, i.e., whether the public building was open for use by members of the public. ⁵

Review of Case Law

Although we have not specifically reached the question in the post-Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984), era of governmental immunity law, ⁶ the Court of Appeals has issued several opinions containing statements related to the question whether the public building exception applies when a person is injured in an area of a public building that has restricted access. ⁷

In Dudek v. Michigan, 152 Mich.App. 81, 393 N.W.2d 572 (1986), the plaintiff was employed by a general contractor for renovation of a state mental health facility and was injured when a cement block fell from a building. The Court of Appeals held the public building exception did not apply because, at the time plaintiff was injured, the entire area of construction had been closed off by a six-foot-high chain-link fence and ingress and egress for authorized personnel was provided by gates. It also was the case that signs had been placed at the gates to warn that the area was not open to the public.

In Griffin v. Detroit, 178 Mich.App. 302, 443 N.W.2d 406 (1989), a resident of a low-income-housing facility, owned and operated by the city, drowned in her bathtub. It was alleged that the city was negligent for failing to install and maintain protective railings for the bathtub. The Court of Appeals held that the public building exception did not apply, even if the dwelling unit was part of a public building, because the dwelling unit was not open for use by members of the public. The Court of Appeals said that the unit was only open for use by the decedent as her private residence under a lease.

In Taylor v. Detroit, 182 Mich.App. 583, 452 N.W.2d 826 (1989), a ten-year-old boy was electrocuted after entering an electrical substation located in an abandoned section of a city-owned housing project. The substation was a brick structure with a single access door that was locked from the outside. The Court of Appeals held that the public building exception did not apply because only authorized personnel were allowed entry into the substation and the structure was neither designed nor intended to be accessible to or used by the general public.

In White v. Detroit, 189 Mich.App. 526, 473 N.W.2d 702 (1991), the plaintiff, a tenant in a low-income-housing facility owned and operated by the city, injured his hip when he stepped into a hole in a brick patio located within the project. The Court of Appeals held that a city-owned residential housing facility was not a public building as a matter of law and that, because the building itself was not a public building, the patio could not fall within the exception. The Court acknowledged that the area where the plaintiff fell was arguably accessible to the public. It said that neither the plaintiff nor the Griffin Court had provided authority for the principle that part of a building can be considered public and part considered nonpublic for purposes of the statutory exception. It noted further that the plaintiff fell in an area adjacent to a nonpublic building and that the building was not used for public offices or for a public purpose.

In Putman v. Wayne Co. Community College (After Remand), 189 Mich.App. 557, 473 N.W.2d 711 (1991), the plaintiff was injured when he fell from a catwalk in an auditorium on a college campus. The Court of Appeals said that the public building exception did not apply because the area where the plaintiff was injured was not open for use by members of the general public and the catwalk was neither designed nor intended to be used by or accessible to the general public. It was noted that only authorized persons, members of a theater group, were allowed entry to the catwalk area.

In Steele v. Dep't of Corrections, 215 Mich.App. 710, 546 N.W.2d 725 (1996), the plaintiff was a prison inmate on a work crew renovating a state building at a correctional facility. The plaintiff slipped on a heating duct and fell through a drop ceiling. The Court of Appeals said the focus was on the accessibility of the accident site to members of the general public. The Court acknowledged that the public building exception is applicable to buildings with limited access, such as schools and prisons, but said the exception did not apply because the building in which the plaintiff was injured was not open to the public during renovations.

Analysis

The public building exception applies to public buildings open for use by members of the public and makes governmental agencies liable for injuries sustained for defects or dangerous conditions of a building if an agency failed to remedy such a condition or take action necessary to protect the public against it. M.C.L. § 691.1406; M.S.A. § 3.996(106).

The first thing we observe is that the statute does not apply to...