Johnson v. City of Detroit

579 N.W.2d 895, 457 Mich. 695

• Court: Michigan Supreme Court
• Decided: June 16, 1998
• Docket: 105891, Calendar No. 4
• Status: Published

Opinions

Mallett, C.J.

We granted leave to determine whether the Court of Appeals erred in affirming summary disposition for the defendants on governmental immunity grounds. Plaintiffs decedent hanged himself on overhead bars in a police station holding cell that were exposed because wire mesh that had been placed over them to help prevent suicides had been tom away. This case presents the question whether the tom mesh constitutes a building defect within the meaning of the public building exception to the governmental tort liability act, MCL 691.1406; MSA 3.996(106). This Court has previously concluded that exposed overhead bars in a general holding cell were not a building defect, Jackson v Detroit, 449 Mich 420; 537 NW2d 151 (1995). This Court has also previously held that a claim could proceed under the public building exception where a cell at the Wayne County jail, specifically designated for individuals with mental conditions, was allegedly defective because it did not contain adequate safety measures, such as adequately padded walls. Lockaby v Wayne Co, 406 Mich 65; 276 NW2d 1 (1979).

The plaintiff argues that the city’s installation of mesh rendered these cells as cells designed to prevent suicide and that the tom mesh constituted a building defect in this particular suicide-resistant cell. I agree. Consequently, I would reverse that portion of the Court of Appeals decision upholding summary disposition for the defendants on governmental immunity grounds. Nevertheless, I would find that defendants were entitled to summary disposition on the underlying negligence claim. Because the plaintiff could not establish that the suicide was foreseeable, she could not establish that the defendants owed a duty to prevent the suicide. Consequently, I would affirm summary disposition for the defendants on this basis.

I. FACTS AND PROCEEDINGS

Decedent, James Johnson, was a city of Detroit employee. On the afternoon of December 29, 1991, a Detroit police sergeant, on his way to work at the third precinct, saw Johnson pass a portable electric generator through an opening in a fence surrounding the Detroit Department of Public Works yard. The sergeant, after returning from the precinct with assistance, followed tracks made by a cart Johnson had used to transport the generator. The officers arrested Johnson and took him to the third precinct station.

Officer Ralph Heatlie, the individual defendant in this case, processed Johnson before placing him in a holding cell in the felony cellblock used for temporary detention of felony prisoners awaiting arraignment. Because Johnson was cooperative, Heatlie rewarded him by placing him in a cell containing a toilet. He first took the standard precautions of removing Johnson’s hat, gloves, belt, wallet, lighter, and shoelaces. Tragically, however, Johnson managed to kill himself by tying one sleeve of his sweatshirt to an overhead horizontal bar in his cell and the other around his neck. Officer Heatlie discovered Johnson after hearing shouting and banging noises from the cellblock area, made by other prisoners in cells across from Johnson’s. It took Heatlie a “short period. Maybe a couple minutes” to return to the area because he had to secure a prisoner that he was working with at the time.

Efforts had been made at this precinct to prevent hangings by welding wire mesh approximately one and one-half inches below the overhead bars that formed the ceiling. However, in this particular cell, the mesh was tom away. While officials were apparently aware of the tom mesh, they had not yet repaired it. Precinct commander Leamon Wilson had requested repairs, on an emergency basis, in a memo to the Deputy Chief for Management Services dated September 17, 1991, more than one hundred days before Johnson’s death. Further, Officer Heatlie, on first becoming aware of the problem, decided to close the cell until repairs were made. However, because of the lengthy delay in repairing the mesh and because this was one of only five cells containing a toilet, Heatlie decided to renew use of the cell.¹

Plaintiff Barbara Johnson, the decedent’s wife, filed this action for wrongful death, and asserted the public building exception in order to avoid a governmental immunity defense. Defendants filed their motion for summary disposition at the close of discovery pursuant to MCR 2.116(C)(7), (8) and (10).²

The trial court granted summary disposition for the defendants on governmental immunity grounds. MCR 2.116(C)(7). The Court of Appeals affirmed.³ We granted leave to consider whether the tom wire mesh constitutes a building defect within the meaning of MCL 691.1406; MSA 3.996(106).⁴

n. LAW

A STANDARD OP REVIEW

In reviewing a trial court’s grant of summary disposition on governmental immunity grounds under MCR 2.116(C)(7), we must review the complaint to determine whether the plaintiff has pleaded facts justifying application of an exception to governmental immunity. Wade v Dep’t of Corrections, 439 Mich 158, 162-163; 483 NW2d 26 (1992); Ross v Consumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d 641 (1984). While review under MCR 2.116(C)(8) allows only consideration of the pleadings, our review under MCR 2.116(C)(7) and (10) also must include consideration of all documentary evidence submitted by the parties. Patterson v Kleiman, 447 Mich 429; 526 NW2d 879 (1994).

Under MCR 2.116(C)(8), we accept all well-pleaded factual allegations as true and construe them in a light most favorable to the nonmoving party. Wade, supra; Skinner v Square D Co, 445 Mich 153, 161-162; 516 NW2d 475 (1994). MCR 2.116(C)(10) motions are properly granted when there is no genuine issue of material fact and where the moving party is entitled to judgment as a matter of law. Skinner, supra. Under MCR 2.116(C)(10), the nonmovant has the burden of providing evidence to support the conclusion that there is a genuine issue of material fact. McCart v J Walter Thompson USA, Inc, 437 Mich 109, 113-115; 469 NW2d 284 (1991). See also MCR 2.116(G)(4). When reviewing summary disposition under MCR 2.116(C)(7), the contents of the complaint are accepted as true unless specifically contradicted by affidavits or other documentation submitted by the moving party. Sewell v Southfield Public Schools, 456 Mich 670, 674; 576 NW2d 153 (1998).

With these standards as a guide, I turn to a discussion of governmental immunity and the public building exception to governmental immunity, and their applicability to this case.

B. GOVERNMENTAL IMMUNITY

Governmental agencies, like the city of Detroit and its agents, generally are immune from tort liability for actions taken while performing governmental functions. MCL 691.1407(1); MSA 3.996(107)(1).⁵

The act’s broad grant of immunity is subject to five narrowly drawn statutory exceptions, including the public building exception.⁶ Since Ross v Consumers Power Co, supra, the defining case concerning interpretation of the governmental tort liability act, this Court has broadly interpreted immunity under the act and has narrowly construed the exceptions to immunity. With this basic principle of interpretation in mind, I once again explore the scope of the public building exception.

C. PUBLIC BUILDING EXCEPTION

The public building exception allows suits against governmental agencies where a dangerous or defective condition of the building itself is alleged to have caused the injuries and where certain other criteria are met.⁷ The act states:

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. [MCL 691.1406; MSA 3.996(106).]

While the language of the exception is fairly straightforward, it has been difficult to state a single test that controls its application, especially in cases where the adequacy of supervision or the injured party’s contributing causation is involved. Our cases interpreting the public building exception, however, do reveal certain general principles that are helpful in determining whether and under what circumstances the exception applies.

One of the overarching principles, repeatedly cited by this Court in our decisions discussing the public building exception since Ross, is the maxim that in enacting the building exception, the Legislature intended to impose a duty to maintain the safety of public buildings, not necessarily safety in public buildings. Reardon v Dep’t of Mental Health, 430 Mich 398, 415; 424 NW2d 248 (1988). Thus, the alleged defect must be a defect of the building itself and not merely a transient condition, such as accumulated grease or oil on a hallway floor, Wade v Dep’t of Corrections, supra, or inadequate supervision in an otherwise adequate facility, Schafer v Dep’t of Mental Health, 430 Mich 398, 417; 424 NW2d 248 (1988); Hickey v Michigan State Univ (On Resubmission), 439 Mich 408, 424; 487 NW2d 106 (1992).

A public building may be defective because of improper maintenance or repair, faulty construction, absence of safety devices, or improper design. Bush v Oscoda Area Schools, 405 Mich 716, 730; 275 NW2d 268 (1979). As recently noted in de Sanchez v Dep’t of Mental Health, 455 Mich 83; 565 NW2d 358 (1997), this Court has had some difficulty discerning when a design defect may actually constitute a defect in a public building sufficient to invoke the public building exception.

While a design that in some way impedes the ability to supervise users of the building might in some cases constitute a design defect, the design must directly contribute to the injuries. Hickey, supra at 424. In other words, “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.” de Sanchez, supra at 95.

Although language in some of this Court’s previous decisions, such as Schafer and Hickey, supra, may have appeared to suggest that where adequate supervision could have prevented the injuries, the building exception was inapplicable, this Court made clear in de Sanchez that where the essence of a tort claim is a defective building, summary disposition may not be granted merely by claiming that proper supervision would have prevented the injuries. Instead, as long as a physical defect in the building itself coincides to cause the injury, the public building exception might apply even if negligent supervision is also involved.

Another important principle, first discussed in Bush, supra, is that courts must examine whether the building is defective in light of the uses or activities for which it is specifically assigned. Bush involved a high school student who was seriously burned by an explosion during a chemistry class that was being temporarily held, because of overcrowding, in a general classroom lacking laboratory safety equipment. This Court held that the trier of fact must determine whether the room was defective when used as a chemistry room, and if so, whether the defect was a cause of the plaintiffs injuries. Regarding the importance of examining the intended use, this Court stated:

[T]he lack of certain safety devices did not render the classroom defective per se; it is ordinarily unnecessary to install laboratory safety equipment in classrooms. In determining whether a place is safe, one must consider the use or purpose it serves. A building may be safe for one use or purpose, but not for another. A school is not a school because it is called one, but because it is used and functions as one. If a hospital is converted into a prison, the building must be maintained as a safe prison, not as a safe hospital. The room in which [the plaintiff] was injured had by use become a physical science room, and therefore had to meet the standards of a physical science room although it had once been a mathematics room. [Bush, swpra at 732.]

The principle of intended use also controlled in Lockaby, supra. That case, like this one, involved an alleged defect resulting in injuries to an individual in a holding cell. In Lockaby, the injured individual was known to have a mental condition and was placed in a cell specifically designated for such individuals. He suffered an injury to his spinal cord after striking his head against the cell wall. His complaint alleged, among other things, that a lack of adequately padded walls in the cell constituted a defect. Citing Bush, this Court held that the lack of adequately padded walls might be a defect in a cell designated to hold individuals with mental conditions. Consequently, we held that the plaintiff had pleaded a cause of action so as to avoid governmental immunity.

Conversely, in other prison suicide cases, where the cell was intended for temporary detention or for holding a general population and was not specifically equipped to prevent suicides, this Court has held that otherwise benign installations used by the arrestee to hang himself were not defects. Hickey and Jackson, supra. In Hickey, an intoxicated individual hanged himself from the bolts securing a heating unit in a temporary detention cell at the Michigan State University Department of Public Safety. Explaining that the intended use principle announced in Bush controlled, this Court stated:

Msu’s holding cell was specifically intended and assigned for temporary detention. Even the plaintiff did not argue that the cell was used for any purpose except the temporary lockup of arrestees. We must, therefore, determine if this cell, with the installation of the heating unit, specifically used and assigned for temporary detention, was dangerous or defective. We hold that it was not. [Hickey at 425-426.]

After discussing the impossibility of making a jail or holding cell suicide-proof, we further explained:

There would seem to be no limits on the possibility of suicide in an ordinary lock-up cell, particularly one that was only being used for temporary custody, even the temporary custody of an inebriated individual. To suggest that any physical feature of a jail cell, otherwise benign, that can conceivably become a part of a plan of one who is desperately driven to self destruction can become a “dangerous or defective condition” under the public building exception statute, simply crosses the outer limits of any reasonable reading of the intent of that statute when considered in the context of its history, purpose, and wording. [Id. at 426.]

Likewise, this Court in Jackson, supra, found that a cell with exposed overhead bars was not defective for the specific use and purpose for which it was assigned, that of a general holding cell. As in this case, the decedent in Jackson hanged himself from exposed overhead bars. Even though Mr. Jackson, unlike the decedent in Hickey, was known to be suicidal, that fact did not transform the intended use of the cell from that of a general holding cell to that of a cell designated for suicidal prisoners. The designated use as a general cell controlled.

In summary, a defect will be found only where the alleged problem relates to safety of a public budding, not just to safety in a public building. Thus the alleged defect must be one of the building itself. While an improper design may constitute a defect, no defect will be found if the essence of the tort involves inadequate supervision. Further, courts must examine the intended use and the specific designated purpose of the building or room in order to determine whether a defect exists. Thus, while overhead bars in a general holding cell are not a defect, Jackson, supra, exposed overhead bars might constitute a defect in a cell specifically designed or equipped to prevent suicide by the installation of wire mesh.

HI. ANALYSIS

A. BUILDING DEFECT

The determinative question in this case is whether the installation of mesh over the overhead crossbars, in order to help deter suicides, renders the cell a suicide-deterrent cell, specifically assigned to deter hangings from the overhead crossbars. Because I think that these cells, with the installed mesh, were intended to function as suicide-deterrent cells, I would hold that the public building exception applies. The plaintiff has presented evidence sufficient to establish that this suicide-deterrent cell was defective in light of its intended purpose because the mesh designed to prevent access to the overhead bars was tom away. The plaintiff also has presented evidence that the defendants had notice and a reasonable time to repair the defect and did nothing. Consequently, the pleadings and supporting documentary evidence are sufficient to allow the plaintiffs claim to go forward.

While the cell involved here is typically used to hold a general population and functions as a general holding cell, once the mesh was installed to deter suicides, it functioned in fact as a suicide-deterrent cell. As we noted in Bush, “[i]f a hospital is converted into a prison, the building must be maintained as a safe prison, not as a safe hospital.” Id. at 732. Similarly, once this cell was converted to a suicide-deterrent cell, the city was obligated to maintain it as a safe suicide-deterrent cell, in that it had a duty to maintain the specific safety feature designed to accomplish this purpose in good repair.⁸

As a suicide-deterrent cell, the analysis this Court applied in Lockaby controls. A defect in a feature designed to protect the inmate or arrestee from his own devices comes within the building exception if the plaintiff can show that the defect was a contributing cause of the injuries. As we noted in de Sanchez, supra, the fact that other causes also might be involved, such as inadequate supervision or the arrestee’s own actions toward self-destruction, does not necessarily preclude application of the public building exception.⁹

B. NEGLIGENCE

i

I note that merely because a plaintiff is able to plead a claim to avoid governmental immunity, in this case on the basis of the public building exception, does not necessarily mean that the defendants are liable. Our conclusion that the public building exception applies to plaintiffs claim merely establishes that the city undertook a duty to maintain this suicide-deterrent cell in good repair. The fact that the city has this general duty does not necessarily establish a duty owed to this particular plaintiff in the facts of this case. Establishing a building-defect claim circumventing governmental immunity does not negate traditional tort law principles. Perhaps a statement of the obvious, plaintiff still must demonstrate the elements of her negligence claim.

In this case, the defendants filed their motion for summary disposition not only on the ground of governmental immunity, but also on the ground that there was no genuine issue of material fact. MCR 2.116(C)(10). The trial court’s order granting defendants’ motion for summary disposition cited not only MCR 2.116(C)(7), the governmental immunity provision, but also cited MCR 2.116(C)(10). Although the Court of Appeals did not reach this alternative ground, except with respect to the gross negligence claim against defendant Heatlie, I would hold that summary disposition under MCR 2.116(C)(10) was proper because there was no genuine issue of material fact on the underlying negligence claim.

In her negligence claim, the plaintiff has to establish that the defendant had a duty to this particular decedent, that it breached that duty by placing the decedent in the defective cell, and that the breach was a proximate and factual cause of the decedent’s death. A defendant does not owe a duty to an unforeseeable plaintiff. In this case, plaintiff failed to present a genuine issue of material fact establishing the existence of a duty owed to plaintiff’s decedent because defendants were actually unaware, and it was not reasonably foreseeable, that the decedent was suicidal before placing him in the defective cell. See Hickey, supra at 438-439.

In support of their motion for summary disposition, which was brought after the close of extensive discovery, defendants city of Detroit and Officer Heatlie offered the deposition testimony of Officers Heatlie and Wylie. Both officers testified that the decedent gave no indication that he was suicidal. Conversely, the plaintiff presented nothing to refute this evidence and did not offer any evidence that the suicide was reasonably foreseeable.

Where the events leading to injury are not foreseeable, there is no duty, and summary disposition is appropriate. Groncki v Detroit Edison Co, 453 Mich 644, 657; 557 NW2d 289 (1996). In this case, the defendants had no notice that the decedent might attempt suicide, and therefore they cannot be held responsible for failing to prevent the decedent’s death. This death was not reasonably foreseeable. Tragic as it was, defendants cannot be held responsible for the unforeseen suicide of the plaintiffs decedent. Consequently, I would uphold the trial court’s granting of summary disposition to the defendants under MCR 2.116(C)(8).

IV. CONCLUSION

While the plaintiff has established evidence sufficient to allow her claim to go forward under the public building exception to governmental immunity, the underlying negligence claim fails because it was not reasonably foreseeable that the decedent would attempt suicide.

The tom mesh rendered this cell, which was intended to function in fact as a suicide-deterrent cell, defective within the meaning of the public building exception. The evidence also supports a conclusion that the city had notice of the tom mesh and had reasonable time in which to repair it.

Although summary disposition was improper on the ground of governmental immunity, it is proper on the underlying negligence claim. The uncontroverted evidence at the close of discovery and as presented at the summary disposition stage showed that defendants could not have suspected that the decedent was suicidal. Consequently, there was no duty to prevent this unforeseeable death.

For these reasons, I would reverse that portion of the Court of Appeals decision upholding summary disposition for the defendants on the ground of governmental immunity and would affirm summary disposition on the underlying negligence claim.

1 According to documentary evidence submitted by the parties, the other four cells containing a toilet were already occupied.

2 MCR 2.116(C)(7) allows summary disposition if

[t]he claim is barred because of release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate, infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action.

MCR 2.116(C)(8) permits summary disposition if “[t]he opposing party has failed to state a claim on which relief can be granted.” MCR 2.116(C)(10) permits summary disposition if “[ejxcept as to the amount of damages, there is no genuine issue as to any material fact . . . .”

3 Unpublished memorandum opinion, issued March 5, 1996 (Docket No. 172383).

4 454 Mich 907 (1997).

5 Specifically, the governmental tort liability act provides that

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. [MCL 691.1407(1); MSA 3.996(107)(1).]

6 The other four exceptions are (1) the highway exception, MCL 691.1402; MSA 3.996(102), (2) the negligent use of a government-owned motor vehicle exception, MCL 691.1405; MSA 3.996(105), (3) the proprietary function exception, MCL 691.1413; MSA 3.996(113), and (4) the government hospital exception, MCL 691.1407(4)(b); MSA 3.996(107)(4)(b).

7 This Court has previously noted that to apply the public building exception, a plaintiff must prove the following: (1) that a governmental agency is involved, (2) that the public building in question is open to the public, (3) that a dangerous or defective condition of the public building itself exists, (4) that the governmental agency had actual or constructive notice of the alleged defect, and (5) that the governmental agency failed to remedy the alleged defect after a reasonable period of time. Hickey v Michigan State Univ (On Resubmission), 439 Mich 408, 421; 487 NW2d 106 (1992). Most of our public building exception decisions, like this case, involve interpretation of the third prong of this five-part test.

8 The dissent insists that the character of the cell involved here is identical to that at issue in Jackson, supra, i.e., it functions as a general holding cell and not as a suicide-deterrent cell. The dissent’s analysis suggests that the intended use of these general cells, all equipped to be suicide deterrent, changes with each detainee ushered into them, depending upon that detainee’s demonstrated proclivity toward suicide. This illogical result is not required by this Court’s opinion in Bush, as suggested by the dissent. Bush held that where the defendant knew that a general classroom would be used to conduct a chemistry class, it might be defective if it was not equipped with appropriate safeguards necessary for chemistry experiments. Similarly, in this case, where the defendants knew that the general holding cells would be used to hold a general detainee population, including some suicidal individuals, when it was, in fact, used to hold a suicidal individual and did not contain appropriate safeguards, it was defective. Once again, all the cells were, in fact, used and equipped to hold a general detainee population and a population with a known risk of suicide. Their intended use was to function as general suicide-deterrent cells.

9 Consequently, the defendants’ focus on the decedent’s actions as the real cause of his death misses the mark. While I recognize that the language in Hickey concerning the impossibility of making a suicide-proof cell can be read to suggest that an individual’s own efforts at self-destruction preclude a finding that an otherwise benign feature might be a defect, this is not necessarily determinative. If a cell is designed or equipped to be suicide deterrent, lack of compliance with reasonable safety measures could indeed constitute a defect of the building when viewed in light of its intended use. For example, the question in Bush was not whether the classroom could be made accident-proof, but whether lack of reasonable safety devices contributed to the injuries. Certainly creative and unforeseen implements of self-destruction cannot always be eliminated. However, when a cell is intended to function as a suicide-deterrent cell, a defect may exist where reasonable steps are not taken to maintain its safety features in good repair.