De Sanchez v. Department of Mental Health

565 N.W.2d 358, 455 Mich. 83

• Court: Michigan Supreme Court
• Decided: July 8, 1997
• Docket: 101591, Calendar No. 7
• Status: Published

Opinions

Boyle, J.

We granted leave in this case to determine whether a defense of proper supervision may bar a true building defect claim under the public building exception to governmental immunity. Finding it does not, we reverse the decision of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion.¹

i

On March 11, 1983, plaintiffs’ decedent was involuntarily admitted to Ypsilanti Regional Psychiatric Hospital. There, decedent was diagnosed with reactive depression, thought disorders, and suicidal preoccupation. The decedent was immediately placed on one-to-one suicidal precautions. Six days later, he was taken off one-to-one watch and was placed on general suicidal precautions.² The following day, while still on general precautions, the decedent hanged himself by attaching a cloth belt to an overhead dividing bar inside a toilet stall in the facility’s restroom.

For the past decade, this case has weaved its way through the judicial system. Separate lawsuits were originally filed in the Court of Claims against the Department of Mental Health and in the Washtenaw Circuit Court against Dr. Genoves-Andrews.³ On September 6, 1984, the Department of Mental Health was granted summary judgment pursuant to GCR 1963, 117.2(1), now MCR 2.116(C)(8).⁴ Dr. GenovesAndrews was granted summary judgment pursuant to GCR 1963, 117.2(1) on June 29, 1984.⁵ On appeal, the grant of summary judgment in favor of Dr. GenovesAndrews was reversed.⁶ In addition, the grant of summary judgment in favor of the Department of Mental Health on the defective public building claim was also reversed.⁷ On all other counts, summary judgment was affirmed.

An application for leave to appeal to this Court was filed by defendants. In lieu of granting leave, we remanded the case to the Court of Appeals for reconsideration in light of Canon v Thumudo, 430 Mich 326; 422 NW2d 688 (1988), Reardon v Dep’t of Mental Health, 430 Mich 398; 424 NW2d 248 (1988), and Smith v Dep’t of Public Health, 428 Mich 540; 410 NW2d 749 (1987).⁸ On remand, the Court of Appeals modified its earlier opinion regarding the grant of summary judgment in favor of the Department of Mental Health. Specifically, the Court upheld the grant of summary judgment on that portion of plaintiffs’ claim that related to the defendant’s failure to design the restroom in a maimer that would allow proper observation and supervision of patients.⁹ The Court found, however, that plaintiffs’ allegation that the restroom design was dangerous or defective in light of the suicidal tendencies of its users was sufficient to withstand summary judgment. In all other respects, the Court upheld its previous ruling.

On remand from the Court of Appeals, the defendants moved for summary disposition pursuant to MCR 2.116(C)(10). That motion was denied on August 6, 1992. On defendants’ motion for reconsideration, the trial court reversed itself and granted summary disposition for both defendants. After remand, the Court of Appeals affirmed,¹⁰ and we granted leave to appeal.¹¹ Plaintiffs do not appeal the order granting Dr. Genoves-Axidrews’ summary disposition. Accordingly, the only issue before this Court is whether defendant Department of Mental Health was properly granted summary disposition where it was concluded that proper supervision would have offset shortcomings in the configuration of the room.

n

The issue before us is not whether a defect in the building actually existed or whether, if a defect did exist, the defendant’s actions were the legal or factual cause of the decedent’s death. Plaintiffs contend that a defect did exist and the Court of Appeals did not revisit this question. Instead, the sole issue on appeal is whether the defense of proper supervision bars a true building defect claim. Defendant concedes that, as the common restroom for the ward, the restroom was to be used by suicidal patients. Defendant contends, however, that because the restroom was never assigned to be suicide proof, and reasonable supervision could have prevented the suicide, there was no building defect.¹² The argument is as follows: where a known suicidal patient in a psychiatric hospital uses a room that was not specifically assigned to hold actively suicidal patients without supervision, would proper supervision have prevented the suicide? If the answer is yes, the public building exception does not apply and the government entity is shielded from liability under the state immunity statute, even if a defect did exist.¹³ The Court of Appeals concluded that “[b]ecause the undisputed evidence indicates that proper supervision would have offset any shortcomings in the configuration of the room, summary disposition was properly granted on the building design defect claim.”¹⁴ In our view, this holding blurs the distinction between those claims that allege mere negligence and those that allege a true building defect. Accordingly, we reverse the decision of the Court of Appeals.

m

A motion brought pursuant to MCR 2.116(C)(10) examines the factual basis for a claim and may be granted only where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.¹⁵ In reviewing a motion brought pursuant to MCR 2.116(C)(10), the court may properly consider supporting affidavits or other documentary evidence outside the pleadings, drawing all reasonable inferences in the nonmovant’s favor. Skinner v Square D Co, 445 Mich 153, 161-162; 516 NW2d 475 (1994).

IV

The governmental immunity statute affords significant immunity from tort liability arising from activities in which the governmental agency was engaged in the performance of a governmental function. MCL 691.1407(1); MSA 3.996(107)(1).¹⁶ Five narrowly drawn exceptions exist to limit this broad grant of immunity, including the public building exception.¹⁷ Under the public building exception, governmental agencies have a duty to repair and maintain public buildings under their control when those buildings are open for use by the public.¹⁸ Liability arises when injuries are caused by a dangerous or defective condition in the building itself.¹⁹ Whether the physical condition of a given room is dangerous or defective must be determined in light of the uses or activities for which the room was specifically assigned. Hickey v Zezulka (On Resubmission), 439 Mich 408, 422; 487 NW2d 106 (1992).²⁰

v

This Court has held that as long as a physical defect in the building itself coincided to cause the injury, the government entity may be liable under the public building exception even if negligent supervision was involved.²¹ In Bush v Oscoda Area Schools, 405 Mich 716; 275 NW2d 268 (1979), the majority concluded that the plaintiff stated a claim under the public building exception, despite the fact that allegations of negligent supervision also were made. There, the plaintiffs child sustained injuries when an explosion rocked a public school classroom. In her suit for damages, the plaintiff alleged that the injuries arose out of the defendant’s failure to supervise, coupled with a lack of safety equipment in the classroom.²² The majority held that the plaintiff had stated a claim under the public building exception to the governmental immunity statute.

Likewise, in Williamson v Dep’t of Mental Health, 176 Mich App 752, 758; 440 NW2d 97 (1989), the Court of Appeals concluded that a defect in the defendant’s building existed, despite the fact that improper supervision was also a contributing cause of the decedent’s death. The Court opined that

[w]hile it is true that cases which involve nothing more than improper or inadequate supervision do not make out a case under the building exception to governmental immunity, we disagree with defendant’s contention that this case is one involving only improper supervision. We believe that the facts of this case involve a building defect as well. [Id.]

The assertion that “proper supervision would have offset any shortcomings in the configuration of the room” was first pronounced in Reardon, supra at 417. In Reardon, a nursing student sought damages for a sexual assault she suffered while occupying a room in the defendant’s dormitory. The crux of plaintiff’s complaint was that her dormitory room was unsafe because numerous master keys were in circulation. In a companion case, Schafer v Ethridge, a mentally retarded resident of a state facility was sexually assaulted and impregnated. The substance of this complaint was that the layout of the facility created a dangerous or defective condition in the building because it hindered staff supervision. Finding that neither case involved an injury caused by a condition of the building as used for its intended purpose, the majority concluded that the public building exception did not apply. Id. at 400.

In Reardon and Schafer, sexual assaults on a student and patient were found not to state a claim in avoidance of governmental immunity because the building, which was being used for its intended purpose, was not defective.²³ Unlike Bush and Williamson, in which defects in the buildings were allegedly contributing causes of the injuries, the consolidated cases of Reardon and Schafer involved nothing more than mere negligence.²⁴ It is in this context that the Court in Schafer declared that “proper supervision would have offset any shortcomings in the configuration of the room.” Id. at 417.

In Hickey, supra, the plaintiff contended that the improper design of the facility impeded supervision resulting in a dangerous or defective condition in the building. The plaintiff’s son committed suicide in a Michigan State University Department of Public Safety holding cell where he was held after being arrested for driving under the influence of intoxicating liquor.²⁵ None of the decedent’s personal effects were removed when he was placed in the cell. By fashioning his belt and socks into a noose, the decedent hanged himself from one of four metal brackets that attached a heating unit to the wall. The question was whether a dangerous or defective condition existed in the holding cell.²⁶

Three arguments were advanced in support of the plaintiff’s contention that the public building exception was applicable. First, the plaintiff alleged that the holding cell’s improper design created a dangerous or defective condition because it prevented proper supervision. Next, the plaintiff alleged that the lack of state-of-the-art equipment in the cell created a dangerous or defective condition. Third, the plaintiff asserted that the heating unit and metal brackets created a dangerous or defective condition because they were improperly placed. The Court concluded that the claim against Michigan State University was barred by governmental immunity.²⁷ Regarding the improper design allegation as a dangerous or defective condition, we rejected the plaintiff’s effort to posit the defect on a negligent supervision allegation, saying

a claim based on the inability to observe Hickey because of the structural design of the dps is an insufficient basis on which to apply the public building exception. Before a claim under a building design defect can support invoking the immunity exception, such a design must more directly cause the injury at issue. [Id. at 424.]

With no defect in the building itself having been found, the Court explained that “more effective supervision would have overcome this alleged design defect in the holding cell.” Id.

More recently, in Jackson v Detroit, 449 Mich 420; 537 NW2d 151 (1995), the “proper supervision” language was again referenced. Finding that the plaintiff’s claim involved safety in a public building rather than the safety of a public building, we concluded that the claim did not come within the confines of the public building exception. Although it was stated that “where proper supervision would have ‘offset any shortcomings in the configuration of the room,’ the public building exception does not apply,”²⁸ it is clear that the proper supervision language was merely another way of explaining that because the gravamen of the complaint was negligent supervision, the plaintiff had not alleged a dangerous or defective condition of the building itself.

Plaintiffs correctly acknowledge that where the essence of a tort claim is negligent supervision, a plaintiff cannot transform the claim into a building-defect claim merely because a superior building design would have improved the ability to supervise. Similarly, where the essence of a tort claim is a defective building under the public building exception, summary disposition may not be granted simply by claiming that proper supervision would have averted the irijmy.²⁹

Despite the oft-cited proposition that a public building may be dangerous or defective because of its improper design,³⁰ the issue whether a design defect may actually constitute a defect in a public building sufficient to invoke the public building exception has caused this Court considerable difficulty. Nonetheless, that issue is not before this Court. In the present case, the plaintiffs have alleged that a dangerous or defective condition existed in the building itself. We hold that the plaintiffs were not required to “present evidence that more extensive supervision could not have prevented the suicide or that such supervision could not have been reasonably implemented”³¹ in order to defeat the defendant’s motion for summary disposition. This is not to say that a question of fact remains regarding the existence of a true building defect or that the defendant might not be entitled to judgment as a matter of law on the question whether a true building defect existed.³² We are saying, however, that the defense that proper supervision would have prevented the injury does not negate the allegation of a true building defect so as to permit the conclusion that there is no question of material fact regarding the existence of a defect. Accordingly, we reverse the decision of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion.

VI

For the reasons stated above, the decision of the Court of Appeals is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

Mallett, C.J., and Brickley, Cavanagh, and Kelly, JJ., concurred with Boyle, J.

1 Plaintiff submits that the issue whether a defect existed in the building itself is not now before this Court. Whether a given room is dangerous or defective must be determined in light of the uses or activities for which it is specifically assigned. Hickey v Zezulka (On Resubmission), 439 Mich 408, 422; 487 NW2d 106 (1992), citing Bush v Oscoda Area Schools, 405 Mich 716, 731; 275 NW2d 268 (1979). The issue whether a defect existed was not fully briefed or argued. From submissions before us, we do not know whether the state provided other restroom facilities for patients actively suicidal or, if not, what patients with what difficulties were assigned to this restroom, so we are unable to determine, as a matter of law, whether a true building defect existed.

2 One-to-one suicidal precautions required that a staff member remain with the patient at all times, including when the patient used the restroom. General suicidal precautions required that the patient be monitored every fifteen minutes.

3 Dr. Genoves-Andrews was an employee of Ypsilanti Regional Psychiatric Hospital at the time of decedent’s death.

4 Plaintiffs asserted five theories of recovery against the Department of Mental Health. Plaintiffs’ claims included allegations of violations under an intentional nuisance theory, 42 USC 1983, the Mental Health Code, the public building exception to governmental immunity, and implied contract theories. Each of the plaintiffs’ five claims was dismissed on summary judgment.

5 Plaintiffs asserted the following five theories of liability against Dr. Genoves-Andrews: ordinary negligence, intentional nuisance, violations of 42 USC 1983, violations of MCL 330.1722; MSA 14.800(722) for abuse of a mental health service recipient, and allegations that the defendant acted in an intentional, gross, wilful, wanton, and reckless manner.

6 The reversal pertained only to the § 1983 claim against Dr. GenovesAndrews. .

7 161 Mich App 245; 410 NW2d 803 (1987).

8 430 Mich 894 (1988).

9 The Court noted that this allegation failed to state a claim of a defective condition in the building itself. 179 Mich App 661; 446 NW2d 538 (1989).

10 The Court of Appeals observed that its previous determination that the complaint stated a claim of a building defect was the law of the case. It then held:

Plaintiffs characterize defendant’s argument as meaning that where a plaintiff has alleged a defective building claim, a defendant can “immunize itself by showing that heroic and extraordinary supervision would have averted the injury.” We express no opinion on the validity of this proposition generally because the undisputed evidence demonstrates that the necessary supervision in this case would not have been “heroic and extraordinary.” Plaintiffs’ decedent had been subject to one-to-one supervision for six days. In response to defendants’ motion, plaintiff presented no evidence to indicate that continuation of this type of supervision would have been “heroic and extraordinary.”

Because the undisputed evidence indicates that proper supervision would have offset any shortcomings in the configuration of the room, summary disposition was properly granted on the building design defect claim. [Unpublished opinion per curiam, issued November 29, 1994 (Docket No. 158052), slip op at 2.]

11 452 Mich 866 (1996).

12 Defendant has relied in part on 179 Mich App 669-670, n 9 supra, in which the Court stated:

We are aware that in Schafer v Ethridge [430 Mich 398; 424 NW2d 248 (1988)] . . . the Court . . . [found that] “proper supervision . . . would have offset any shortcomings in the configuration of the room.” The instant case, however, was decided in a motion made pursuant to GCR 1963, 117.2(1) [MCR 2.116(C)(8)], which is to be granted only if the claim, viewed in light of the allegations of the pleadings alone, is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. ... At this relatively premature stage of the proceedings, we are not inclined to draw essentially factual conclusions that more extensive supervisory measures could have been reasonably implemented and that such measures would have prevented the decedent’s suicide.

13 Defendant contends that it does not mean to imply that additional supervision in all circumstances will negate a true building defect. It does argue, however, that additional supervision will negate a true building-defect claim where a room, not assigned to be used by actively suicidal patients without supervision, is so used.

14 Docket No. 158052, n 10 supra at 2.

15 Velmer v Baraga Area Schools, 430 Mich 385; 424 NW2d 770 (1988).

16 The act provides:

Except as otherwise provided in this act, all governmental agencies shall be immune from tort liability in all cases wherein the government agency is engaged in the exercise or discharge of a governmental function. Except as otherwise provided in this act, this act shall not be construed as modifying or restricting the immunity of the state from tort liability as it existed before July 1, 1965, which immunity is affirmed.

17 MCL 691.1406; MSA 3.996(106). See Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 618; 363 NW2d 641 (1984). The other four exceptions concern maintenance of public highways, MCL 691.1402; MSA 3.996(102); negligent operation of a government-owned motor vehicle by an officer or agent, MCL 691.1405; MSA 3.996(105); performance of proprietary functions by government entities, MCL 691.1413; MSA 3.996(113); and ownership or operation of a government hospital, MCL 691.1407(4); MSA 3.996(107)(4). The last exception does not include hospitals owned or operated by the Department of Mental Health. MCL 691.1407(4)(b); MSA 3.996(107)(4)(b).

18 MCL 691.1406; MSA 3.996(106) 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 actuai 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.

19 Reardon, supra at 409.

20 For a comprehensive discussion of governmental immunity, see Antieau & Mecham, Tort Liability of Government Officers and Employees. See also Dennehy & Hammond, Government law, 1987 annual survey of Michigan law, 34 Wayne L R 837 (1988); Stancyzk, Government law, 1988 annual survey of Michigan law, 35 Wayne L R 653 (1989); Ross, Government law, 1992 annual survey of Michigan law, 39 Wayne L R 799 (1993).

21 See 2 Torts, Michigan Law & Practice, § 20.28, p 20-30, and Braden, Liability for defective public buildings, 72 Mich B J 1144, 1146 (1993). See also Dedes v Asch, 446 Mich 99; 521 NW2d 488 (1994) (the Legislature did not intend to eliminate recovery where more than one tortfeasor contributed to the plaintiff’s injury when it used the term “the” before the words “proximate cause” in the governmental immunity statute, MCL 691.1407[2][c]; MSA 3.996[107][2][c]).

22 Bush, supra at 735-736, n 3.

23 In Reardon, there was no evidence that the door lock was broken or otherwise defective or dangerous. Instead, the Court noted that the door lock functioned exactly as it was intended to function. Id. at 415. In Schafer, the Court found that there was no evidence that the pillars were unsafe or defective. Id. at 417.

24 In Bush, supra, the Court did not find that a true building defect existed, only that the plaintiff had stated a claim of a building defect sufficient to defeat the defendant’s motion for summary disposition. In Williamson, supra, the Court found that a defect in the building itself was a proximate cause of the decedent’s death.

25 MCL 257.625a; MSA 9.2325(1).

26 Hickey, supra at 421.

27 The Court postulated that evidence that the facility was not up to date or the most modem of possible designs was insufficient to establish a dangerous or defective condition in the building itself. Id. at 424. Additionally, by broadly defining the use to which the cell was assigned, the Court concluded that the placement of the heating unit and metal brackets did not render the cell dangerous or defective. Id. at 425-427. See also Ross, n 20 supra at 813-814.

28 Id. at 428.

29 Plaintiffs’ assert that one-to-one supervision of the decedent would have been extraordinary and that a defendant can not “ ‘immunize itself by showing that heroic and extraordinary supervision would have averted the injury.’ ” Docket No. 158052, n 10 supra at 2. We agree. Where a defective condition in the building has been alleged, heroic and extraordinary supervision will also not act to bar the defective building claim.

30 Hickey, supra at 422.

31 Docket No. 158052, n 10 supra.

32 In this opinion we reverse the Court of Appeals determination that a defense of proper supervision can defeat a building defect claim under the public building exception to governmental immunity. In its November 29, 1994, opinion, the Court of Appeals held that it was bound by the law of the case regarding whether plaintiffs’ pleadings sufficiently alleged a claim within the public building exception to governmental immunity. We are, however, unable to determine whether the Court of Appeals evaluated the parties’ allegations and supporting affidavits under MCR 2.116(C)(10) as opposed to MCR 2.116(C)(8). For that reason, we do not apply the law of the case doctrine to the question whether a genuine issue of material fact existed. Therefore, we do not foreclose the trial court’s ability on remand to grant judgment as a matter of law regarding whether a building defect existed, nor do we compel the trial court to hold that the defendant is entitled to judgment as a matter of law regarding whether a building defect existed. We simply express no opinion on this matter because it has not been fully briefed or argued to this Court.

In its October 8, 1992, motion for reconsideration and order granting summary disposition, the trial court explained:

In the instant case, as in Hickey there is no defect or failure of a structure in light of the pectific [sic, specific] use and purpose for which it was assigned. The bathroom stall was supported by an overhead bar. This bar did not fail in its purpose. And its mere presence does not constitute a building defect. At most there may have been negligence in designing such a bathroom stall for its use in a mental institution. . . . This possible negligence however, does not create an inherent building danger or defect which would trigger the public building exception to governmental immunity.

Because we do not know from the materials before this Court on what basis the trial court made this statement, we do not endorse nor do we foreclose the trial court’s ability to stand by the statement on remand.