The Michigan Supreme Court has issued a decision finding that the public building exception to governmental immunity does not apply to a university dormitory which was locked and to which a visitor could gain access only by using a security phone and asking a resident to allow him in. The Court held that the dormitory was not "open to the public" as required under MCL 691.1406. The operative language of that statute is:
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.
The Court reasoned by analogy from previous cases, including the following:
Dudek v Michigan, 152 Mich App 81; 393 NW2d 572 (1986) -- A construction worker was injured when a cement block fell from a building during renovation. The Court of Appeals held that the public-building exception did not apply because the entire construction area was closed off by a fence, and only authorized personnel could enter.
Griffin v Detroit, 178 Mich App 302; 443 NW2d 406 (1989) -- A resident of a public-housing facility drowned in her bathtub. The Court of Appeals held that the public-building exception did not apply because the dwelling unit "was not open for use by members of the public. It was open for use by the decedent as her private residence under the lease agreement".
Taylor v Detroit, 182 Mich App 583; 452 NW2d 826 (1989) -- A boy was electrocuted after breaking into a locked electrical substation in an abandoned section of a public-housing project. The Court of Appeals held that the substation was not open for use by members of the public. "Only authorized personnel were allowed entry into the substation; the structure was neither designed nor intended to be accessible to or used by the general public."
Brown v Genesee Co Bd of Comm’rs (after remand), 464 Mich 430; 628 NW2d 471 (2001) -- An inmate injured himself in a slip and fall incident in the shower area of a jail. A majority of this Court concluded that a jail inmate is not a member of the public for the purposes of the public-building exception to governmental immunity as that relates to a jail.
Of interest is the fact that none of these cases sought to address the issue of who are the "members of the public" in question. The courts seem to have simply assumed that this phrase refers only to the general public, as opposed to the residents of the buildings in question. Since it was a visitor who was injured in this case, while on the stairs using the public phone, that would be the first point of differentiation. What if the injury had happened to one of the dormitory residents, well within the building? Would the Court likewise find the public buildings exception inapplicable, based on the fact that the general public cannot enter the building? If there are a hundred or a thousand residents of the building, aren't they members of the public deserving the protection of the statute? (The dormitory in question housed over 120 residents.)
By the Court's reasoning by analogy to the Brown and Griffin cases, even the residents would not be permitted to assert a claim for any injury sustained by virtue of a defective condition of the building. If the inmates of a jail are not covered, the residents of a dormitory should not be covered either. But is that the result anticipated by the purpose of the legislative provision? The result in Brown could well be regarded as based on the position that inmates of a jail should not be allowed to assert claims for personal injuries sustained within the walls of the jail building. The same rationale, when applied to the teenaged sons and daughters of fine upstanding citizens of our State, may not sit as well with the public.
Also interesting: The Court declined to address a key issue on a very narrow and apparently spurious ground. In footnote 5, it said:
Defendant did not seek leave to appeal on whether the steps on which plaintiff fell were part of the public building. Thus, we do not reach that issue.
Since that is a crucial issue here, perhaps it deserved a little more exploration. The plaintiff was, after all, injured on the steps leading into the building as she was attempting to use the guest phone to seek entrance. Presumably all members of the public are permitted this degree of access to the building. Even a salesman or a Jehovah's Witness has the right to request permission to enter, we would think.
Since the Michigan Supreme Court posts copies of the briefs of the parties, we were able to download and view the brief filed by plaintiffs as appellees. Lo and behold, we find that the plaintiff made the following points and arguments:
- Non-resident members of the public were frequently observed inside the residence hall (as guests of residents, no doubt) .
- The University permits non-residents to have authorized access to the building as guests of residents by means of the telephone call box.
- The plaintiffs had alleged that the outside stairs in question were not properly designed or maintained, in part because the phone was installed close to a narrow stairstep.
- The injured plaintiff was not an interloper or a casual visitor, but was the mother of a resident, there to help her daughter move out of the dormitory at the end of the school year.
- The parties had previously litigated and argued the question of whether the stairs in question were "part of the building". Both the trial court and the Court of Appeals had ruled in favor of the plaintiff on that issue.
- The University had not challenged that ruling on appeal.
The comment in footnote 5 was thus, to put it mildly, misleading. The University of Michigan, defendant in this lawsuit, had prudently decided not to challenge the ruling of the Court of Appeals finding that the stairs were part of the building. But it is inaccurate to say that the Supreme Court did not "reach" this issue. The Court of Appeals ruling on that issue was an integral part of the ruling on the entire case. If the stairs were not part of the building, the plaintiff would not have been able to rely on the public building exception. What the Supreme Court overlooked (intentionally or erroneously, it is difficult to say) was that the plaintiff was clearly arguing that the injury occcurred in a part of the building that was indeed open to the public, and that she was a member of the public with a legitimate reason to be using that part of the building. This aspect of the plaintiff's argument was simply ignored by the Supreme Court in making its ruling.
One of the most frustrating parts of appellate practice is the occasional refusal or unwillingness of the Court to address the merits of the argument that the advocate makes.
Maskery v. University of Michigan Board of Regents
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