Wade v. Department of Corrections

483 N.W.2d 26, 439 Mich. 158

• Court: Michigan Supreme Court
• Decided: March 24, 1992
• Docket: 88656, (Calendar No. 4)
• Status: Published

Opinions

Riley, J.

We granted leave to appeal to determine whether the public building exception to governmental immunity, MCL 691.1406; MSA 3.996(106),¹ applies to a slip and fall injury occasioned by an accumulation of grease or oil on a hallway floor.² The Court of Appeals held that the exception was applicable to these facts and reversed the trial court’s grant of summary disposition in the defendant’s favor.³ We disagree with the findings of the Court of Appeals majority, and hold that the transitory condition was not caused by a dangerous or defective condition of the building itself, thus the public building exception does not apply.

I. FACTS AND PROCEDURAL HISTORY

A

Plaintiff Gerald Wade was a prison inmate at the Lakeland Correctional Facility in Coldwater, Michigan. On January 25, 1987, plaintiff slipped on some foreign substance⁴ and fractured his kneecap. Plaintiff sued the State of Michigan, Department of Corrections, under the public building exception to governmental immunity⁵ on the basis of the theory that it failed to repair and maintain the Lakeland facility, a public building.

In the Court of Claims, defendant moved for summary disposition pursuant to the governmental immunity statute, MCL 691.1407; MSA 3.996(107).⁶ The court granted defendant’s motion on the basis of its finding that an accumulation of grease or oil on the floor did not amount to a defect of the building itself.

The Court of Appeals reversed, finding little distinction between dangerous conditions caused by a structural defect in the floor and a floor covered with an accumulation of oil or grease. Wade v Dep’t of Corrections, 182 Mich App 519, 525; 453 NW2d 683 (1990). The majority rejected the statutory interpretation, which differentiates between risks of injury on the basis of what occasioned the risk. Id. Judge Mackenzie dissented, on the basis of her belief that the public building exception is confined to the duty of preserving the structural integrity of a public building.

B

Although not specified in the record, the trial court granted defendant’s motion for summary disposition pursuant to MCR 2.116(C)(7) and (C)(8). MCR 2.116(C)(7) tests whether a claim is barred because of immunity granted by law, and requires consideration of all documentary evidence filed or submitted by the parties. MCR 2.116(G)(5); Green v Berrien General Hosp Auxiliary, Inc, 437 Mich 1, 4, n 4; 464 NW2d 703 (1990). MCR 2.116(C)(8), failure to state a claim upon which relief can be granted, tests the legal sufficiency of the complaint and allows consideration of only the pleadings. MCR 2.116(G)(5); Scameheorn v Bucks, 167 Mich App 302, 306; 421 NW2d 918 (1988). Under both subrules, all well-pleaded allegations are accepted as true, and construed most favorably to the non-moving party. Scameheorn, supra at 306; Haywood v Fowler, 190 Mich App 253, 256; 475 NW2d 458 (1991). A court may only grant a motion pursuant to MCR 2.116(C)(8) where the claims are so clearly unenforceable as a matter of law that no factual development could possibly justify recovery. Scameheorn, supra at 306.

Immunity granted by law, such as governmental immunity, pursuant to MCL 691.1401 et seq.; MSA 3.996(101) et seq., is an affirmative defense and requires that the defense be stated in the party’s responsive pleading. MCR 2.111(F)(3)(a). Leite v Dow Chemical Co, 439 Mich 920 (1992). In order to survive a motion for summary disposition, the plaintiff must, however, allege facts justifying application of an exception to governmental immunity. Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 621, n 34; 363 NW2d 641 (1984); Gibson v Grand Rapids, 162 Mich App 100, 103; 412 NW2d 658 (1987).

II. REVIEW OF MICHIGAN CASE LAW

In Reardon v Dep’t of Mental Health, 430 Mich 398; 424 NW2d 248 (1988), this Court examined the scope of the public building exception to governmental immunity. MCL 691.1406; MSA 3.996(106). We held that the intent of the Legislature in enacting the public building exception was to "impose a duty to maintain safe public buildings, but not necessarily safety in public buildings.” (Emphasis added.) Reardon, supra at 417. The duty to repair and maintain relates to the structural condition of the premises, and a government engaged in a governmental function is open to liability only where the injury results from a dangerous or defective condition of a building. Id. Although factually distinguishable from the instant case, the holding in Reardon delineating the public building exception is controlling.

In Reardon, a nursing student was assaulted in her dormitory. She alleged that the room, and therefore the building, was unsafe and defective because of the number of master keys in circulation among the employees. In Schafer v Ethridge, 430 Mich 398; 424 NW2d 248 (1988), the companion case of Reardon, a severely mentally retarded resident of a center for developmental disabilities was impregnated while staying in the acute care wing. The complaint alleged that the layout of the wing created a dangerous condition allowing an assault to occur.

This Court rejected the application of the public building exception to these facts on the grounds that no evidence was presented that a condition of the building contributed to the assaults or posed a danger to the plaintiffs. Reardon, supra at 417.

In Reardon, we discussed the statutory genesis of the public building exception. In response to the judicial abrogation of governmental immunity for municipalities in Williams v Detroit, 364 Mich 231; 111 NW2d 1 (1961), in 1964 the Legislature passed Public Act 170.⁷ The purpose of this act was to restore governmental immunity to nonsovereign agencies, and to provide for uniform treatment of governmental entities when engaged in governmental functions.⁸ See Reardon, supra at 408.

Earlier constructions of the governmental immunity act by this Court indicated that with the expansion of governmental activity in recent years, services provided by governmental agencies are not essentially governmental in nature. Pichette v Manistique Public Schools, 403 Mich 268, 279; 269 NW2d 143 (1978). We then found that public policy required a narrow construction of the term "governmental function,” and imposed a broad duty on the government to protect the public from injury by maintaining safe public places. Id. at 285. A "narrow” interpretation of the public building exception which limited application of the exception to the specific physical structure of the building itself was explicitly rejected. Tilford v Wayne Co General Hosp, 403 Mich 293, 299; 269 NW2d 153 (1978). The decisions in Lockaby v Wayne Co, 406 Mich 65, 77; 276 NW2d 1 (1979), and Bush v Oscoda Area Schools, 405 Mich 716, 731; 275 NW2d 268 (1979), also reflect narrow interpretations of governmental function and governmental immunity. In Bush, this Court rejected the defendant’s contention that the injury must result from dangerous or defective conditions caused by inadequate or negligent repairs or maintenance, and found that "a building may be dangerous or defective because of improper design, faulty construction or the absence of safety devices.” Id. at 730.

In Ross, supra, the Court reconsidered the scope of the governmental immunity statute. Our purpose in interpreting the immunity act was to create a cohesive, uniform, and workable set of rules to define an injured party’s rights, and the governmental entity’s liability. Id. at 596. We concluded that the intent of the act was to bring into uniformity the liability for state and non-sovereign governmental agencies. Id. at 608.

The decision in Ross settled prior inconsistencies in governmental immunity jurisprudence by finding that the heart of the act, § 7, provides for broad immunity from tort liability for governmental agencies engaged in governmental functions. Ross, supra at 595. The language of § 7 is "in the broadest possible language,” and the term "governmental function” was likewise to be construed broadly. Id. at 618. From this broad grant of immunity, the Court recognized four narrow statutory exceptions, including the public building exception.⁹ The more recent decision in Hyde v Univ of Michigan Bd of Regents, 426 Mich 223, 245; 393 NW2d 847 (1986), also recognized that exceptions to governmental immunity are to be narrowly construed:¹⁰

Subsequent Court of Appeals decisions, however, continued to interpret the public building exception broadly. In Davis v Detroit, 149 Mich App 249, 262; 386 NW2d 169 (1986), the Court found that the Legislature intended to impose a "broad duty” on governmental agencies to maintain safe buildings. And, in Ray v Dep’t of Social Services, 156 Mich App 55, 63; 401 NW2d 307 (1986), the Court discussed the broad application of the public building exception, stating that "it was the intent of the Legislature to apply the same standard of care and duty as would be applied to a department store or supermarket or a privately owned place of business open to the public.” The only differences between private tort liability and that of governmental agencies noted by the Court in Ray were the notice and knowledge requirements in the public building exception statute. Id.

Various Court of Appeals decisions since our 1988 decision in Reardon, supra, have recognized that the public building exception is now to be interpreted more narrowly, and is limited to dangers actually presented by the building itself. "[T]he scope of this [public building] exception has been narrowed considerably in the time since Pichette and Tilford Puroll v Madison Heights, 187 Mich App 672, 673; 468 NW2d 52 (1990). See Merritt v Dep’t of Social Services, 184 Mich App 522, 523; 459 NW2d 10 (1989) (an accumulation of ice on a parking lot maintained by the defendant was not within the public building exception; the scope of the exception was narrowed since Tilford); Dew v Livonia, 180 Mich App 676, 679; 447 NW2d 764 (1989) (the intent of the Legislature was to apply the public building exception to " dangers actually presented by the building itself,’ and not to all injuries incurred inside or adjacent to a public building”); Wing v Detroit, 178 Mich App 628, 631; 444 NW2d 539 (1989) (the plaintiff’s claim regarding her slip and fall at the Detroit Zoo requires an expansion of pre-Ross decisions which is precluded by Reardon). See also Abrams v Schoolcraft Community College, 178 Mich App ; 444 NW2d 533 (1989), Eberhard v St Johns Public Schools, 189 Mich App 466; 473 NW2d 745 (1991), Hall v Detroit Bd of Ed, 186 Mich App 469; 465 NW2d 12 (1990), and Hemphill v Michigan, 173 Mich App 335; 433 NW2d 826 (1988).

The exception has been held applicable where the claim alleges an injury occasioned by a defective or dangerous condition of the building itself. Williamson v Dep’t of Mental Health, 176 Mich App 752, 758; 440 NW2d 97 (1989) (a mentally retarded resident drowned in the bath due to an improper design of the shower and bath).

III. ANALYSIS

Having reconsidered the scope of the governmental immunity statute, this Court remains persuaded that the legislative intent regarding application of the public building exception statute is limited to injuries occasioned by a "dangerous or defective physical condition of the building itself.” The statutory scheme does not contemplate transitory conditions because they are not related to the permanent structure or physical integrity of the building. Reardon, supra at 409. In Reardon, we recognized the holding in Bush with approval, reasoning that as long as the injury is presented by a structural condition of the building, it does not matter whether the condition arose because of improper design, faulty construction, or the absence of safety devices. Id. at 410. Our decisions in Pichette, Tilford, Lockaby, and Bush, are in harmony with Reardon, because these decisions preceded our resolution in Ross, which more broadly defined the scope of governmental functions and immunity. Reardon, supra at 415.

Plaintiff maintains that Reardon does not apply in this case because the injuries to the plaintiffs in Reardon were caused by the acts of third parties. We disagree. We find no substantive difference between acts of third parties which directly or negligently cause injury to the plaintiff from the facts involved in the present case. The significant, and we believe determining, aspect of both situations is that the dangerous condition was not caused by a dangerous or defective condition of the building itself. We agree with the reasoning of dissenting Judge Mackenzie who found in this case: "plaintiff has alleged nothing more than negligent janitorial care. That is not enough to bring this case within the public building exception to governmental immunity.” Wade, supra at 527.

In contesting defendant’s motion for summary disposition, plaintiff asserted that pursuant to the public building exception, he was obligated to establish the source of the substance on the floor in order to prove that the accumulation was the result of some building defect. Plaintiff argues that since no source was alleged in the complaint or the prisoner’s accident report, he should be allowed to develop facts to show that a building defect caused the accumulation.¹¹ The trial court, after reviewing only pleadings, found that the mere accumulation of grease or oil did not amount to a defect in the building itself, and therefore, plaintiff did not properly establish facts in his complaint that would have avoided governmental immunity.

The Court of Appeals reversed and remanded on the grounds that the physical condition of the floor was a physical condition of the building itself. The Court stressed that the result, a slippery floor, is the same regardless of whether the dangerous condition is caused by an accumulation of oil or grease rather than a defect in the building itself.¹² The Court relied on the pre-Reardon case of Ray, supra. In light of our holding in Reardon, we find the interpretation of the public building exception in Ray overly broad.

In the instant case, the Court of Appeals opined that Ray, was still good law after Reardon. It rejected an interpretation of Reardon that would find the public building exception inapplicable to these facts because the condition was not part of the building itself.

We do not agree. The assertion in Ray that a governmental entity is held to the same standards as private landowners, Ray, supra at 63, is not consistent with the finding in Ross of a clear legislative judgment to treat public and private tortfeasors differently. Ross, supra at 618. Mere negligence by á governmental agency does not trigger liability.

IV. CONCLUSION

In sum, we conclude that the public building exception is to be narrowly construed, and does not encompass claims of negligent janitorial care. A spill on the floor does not become part of the building itself by virtue of the risk of injury it may create for the plaintiff. Moreover, we do not believe the Legislature intended "dangerous or defective condition of a public building” to refer to such transitory conditions. The use of the ninety-day period for conclusively presuming knowledge, as well as the reference to time to "repair” the defect, reinforces our belief that the public building exception does not encompass transitory conditions or ordinary daily maintenance.

In the present case, plaintiff’s claim alleges no more than mere negligence: that grease, oil, food, and water were allowed to accumulate on the floor. This accumulation was the transitory condition which caused the plaintiff’s injury. Furthermore, no defect of the public building itself was pleaded. We find, therefore, that plaintiff failed to state a claim upon which relief could be granted, and the trial court properly granted defendant’s motion for summary disposition.

We therefore reverse the decision of the Court of Appeals.

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

1 The public building exception to governmental immunity, MCL 691.1406; MSA 3.996(106), provides in pertinent 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 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. Knowledge of the dangerous and defective condition of the public building and time to repair the same shall be conclusively presumed when such defect existed so as to be readily apparent to an ordinary observant person for a period of 90 days or longer before the injury took place.

2 437 Mich 972 (1991).

3 182 Mich App 519; 453 NW2d 683 (1990).

4 Paragraph 8 of plaintiff’s complaint alleges that the slip and fall was caused by an accumulation of "oil, grease, water and food” on the hallway floor of the correctional facility, and paragraph 10 alleges defendant allowed a defective or dangerous condition to exist, which consisted of “an accumulation of grease, oil, water, food or other slippery matter . . . .”

5 MCL 691.1406; MSA 3.996(106), n 1 supra.

6 The statute providing for governmental immunity from tort liability, MCL 691.1407; MSA 3.996(107), provides in pertinent part:

(1) 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.

7 In Maki v East Tawas, 385 Mich 151; 188 NW2d 593 (1971), the Court held 1964 PA 170 to be unconstitutional as violative of the Title-Object Clause of Const 1963, art 4, § 24. In response, the Legislature amended the title of the act, but essentially maintained the body of the act.

8 The title of the act, as amended by 1970 PA 155 and 1978 PA 141, states that it is

An act to make uniform the liability of municipal corporations, political subdivisions, and the state, its agencies and departments, when engaged in the exercise or discharge of a governmental function, for injuries to property and persons; to define and limit this liability; to define and limit the liability of the state when engaged in a proprietary function; to authorize the purchase of liability insurance to protect against loss arising out of this liability; to provide for defending certain claims made against public officers and paying damages sought or awarded against them; to provide for the legal defense of public officers and employees; to provide for reimbursement of public officers and employees for certain legal expenses; and to repeal certain acts and parts of acts.

9 The other exceptions are not applicable to the present case. They concern maintenance of public highways, MCL 691.1402; MSA 3.996(102); operation of a government-owned motor vehicle by an officer or agent, MCL 691.1405; MSA 3.996(105); and performance of proprietary functions by government entities, MCL 691.1413; MSA 3.996(113).

10 See also Jolly v St Clair, 428 Mich 860; 400 NW2d 597 (1987).

11 Plaintiff did not allege that the dangerous condition arose out of a dangerous or defective condition of the building itself, hence we do not address that issue in this opinion.

12 See Henkey v Grand Rapids, 185 Mich App 56, 57; 460 NW2d 271 (1990) ("The pertinent inquiry should not concern the genesis of the danger,” but rather the knowledge of the danger by the governmental entity).